The Seattle Hearing Examiner has ruled in favor of letting the Queen Anne Community Council proceed with most of its appeal to a final environmental impact statement that eases regulations for creating accessory dwelling units, but also agreed to strike out some language considered too vague.

After QACC filed its appeal of the FEIS, the document generated after the neighborhood group argued for more environmental review, the City of Seattle filed a motion for partial dismissal in November. The city’s main argument was that much of what QACC was challenging in the FEIS had been addressed in its appeal of a previous Determination of Non-Significance (DNS) for the ADU proposal, so the city shouldn’t have to defend itself again, citing the doctrine of res judicata.

“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 city’s motion for partial dismissal 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 agreed in its December response to the city’s request that the government probably met its public outreach requirements while developing the ADU proposal, but argued the standards for a DNS are different than for an FEIS.

The hearing examiner ruled that city code “does not expressly bar claims in an FEIS adequacy appeal to those that ‘have or could have’ been brought in an appeal of an DNS,” and that the two are different.

“The Examiner is not convinced that the case law that was cited in support of this argument demonstrates the suitability of applying res judicata to different, albeit related, SEPA processes,” according to the hearing examiner’s Jan. 30 order.

The hearing examiner also found that the city’s preferred alternative for accessory dwelling unit legislation “is more intensive than the previously-considered proposal,” and so res judicata does not apply.

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. 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 hearing examiner did agree with the city’s claim that a number of QACC’s objections to the FEIS were “vague, overly broad, and unspecified,” which would make it hard to know how to prepare a defense during a future hearing. The order removes language found to lack specificity while retaining most of the original objections.

A hearing is still set to start at 9 a.m. March 25 in the Office of Hearing Examiner, Room 4000, 700 Fifth Ave. It is expected to continue through March 29.

Order on Motion for Partial... by on Scribd