The Queen Anne Community Council is conceding that the City of Seattle may have met its public outreach requirements for developing legislation addressing accessory dwelling units, but challenges arguments that portions of its appeal have already been addressed.

QACC has been challenging what its Land Use Review Committee chair, Marty Kaplan, calls the elimination of all single-family neighborhoods in Seattle since planning began to remove barriers for developing accessory dwelling units.

The community council successfully argued that the city needed to conduct an environmental impact statement to determine how such policy changes would affect Seattle neighborhoods. The Hearing Examiner made its decision in December 2016.

The FEIS for accessory dwelling units was published on Oct. 4, and a preferred alternative was identified that would allow one attached accessory dwelling unit (AADU) and one detached accessory dwelling unit (DADU) on a minimum lot of 3,200 square feet in single-family zones, or two AADUs.

QACC is set to argue its case before the Hearing Examiner from March 25-29, the appeal having to do with assertions that the city did not adequately consider the impacts of the ADU proposal based on the characteristics of each neighborhood.

The Seattle City Council filed a motion to partially dismiss the appeal on Nov. 30, in regard to arguments of due process and certain claims in the appeal the city states were addressed following the Determination of Non-Significance appeal that resulted in the development of an environmental impact statement.

“The doctrine of res judicata bars several of Appellant’s claims in this appeal that were raised by Appellant or should have been raised in its earlier appeal of the DNS and cannot be re-litigated here,” the motion states. “Specifically, the doctrine bars Appellant’s claims that the FEIS failed to adequately address the following purportedly significant adverse impacts of the Proposal: cumulative impacts of the Proposal ‘in conjunction with other significant land use changes as proposed within HALA, MHA, and other legislation;’ impacts to open space and tree canopy coverage; and loss of historic buildings.”

QACC responded to the city’s motion on Dec. 14, conceding the city likely met its public outreach requirements, but arguing that the standards for a DNS are different than an EIS.

“Because the standard for agency inquiry into project impacts is more demanding for an EIS than for a DNS, and because the reviewing body examines the adequacy of an EIS under a less deferential standard than it does for a DNS, the legal bases for challenging each determination are not the same,” QACC argues in its response.

Because the final environmental impact statement identifies and addresses a preferred option for expanding the development of accessory dwelling units, QACC argues, its challenge is very different than with the DNS and does not fall under res judicata.

“Where the City has both increased the intensity of allowable ADUs and it has expanded the scope of environmental review, res judicata cannot be applied to hold Queen Anne to the issues raised at a prior proceeding, regarding a different environmental determination, prepared for a less intense proposal, using different documentation, and prepared to satisfy different legal standards,” according to QACC’s response.

Under the preferred alternative no off-street parking would be required, and the property owner would not have to live on site. They would have to retain ownership of the property for one year before building a second ADU.

The city is also seeking to dismiss QACC objections to the FEIS it considers “vague, overly broad, and unspecified,” mainly challenges that the document fails to consider impacts that are not spelled out directly; these allegations provide no fair and adequate notice of what QACC will argue at the hearing, so the city would not be able to prepare for them, according to the city’s motion for partial dismissal.

QACC argues that it has identified those impacts, which include cumulative impacts from proposed changes to tree protection regulations and short-term rentals of accessory dwelling units.

The Hearing Examiner had not made a decision regarding the city’s motion as of press time.

Part of the reason for the appeal hearing occurring in March is that the City of Seattle is in the process of satisfying QACC’s public records request, those documents to be used during oral arguments next year.

The City of Seattle issued a letter to deputy hearing examiner Barbara Dykes Ehrlichman on the Dec. 14 deadline notifying her that it would not be able to meet that request, though it would be releasing more than 9,000 responsive documents; there are still 5,000 to go. The city believes it can produce the remaining records by Jan. 4.

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