As-it-happened coverage: Benchview neighborhood in court to challenge lot-split decision; judge to issue ruling laterJuly 19, 2013 at 1:34 pm | In Development, West Seattle news | 40 Comments
(3:35 PM TOPLINE: After a 2-hour hearing, the judge said she has a lot to review so she will issue a written ruling at a later date)
1:34 PM: It’s been six months since we reported on a West Seattle neighborhood’s challenge to a developer’s proposal to split one lot into three (that’s the city map above, the southeast corner of 55th/Manning [Google map here]). The neighborhood, known as Benchview, took the fight against the “lot boundary adjustment” (LBA) to court – and we are here at King County Superior Court, where Judge Mariane Spearman is hearing their case. We’ll report as it happens, since this case has drawn a fair amount of attention – there’s even a TV crew here to cover it.
It’s beginning with a discussion of whether the neighborhood, represented by lawyer Cynthia Kennedy, can submit additional material, though Patrick Downs, lawyer for the city – which had given its approval to the lot split in January, without the neighborhood getting immediate notification – has pointed out there was a deadline almost two weeks ago for such submissions. Also at the table with the city and neighborhood’s lawyers is Benchview resident Dave Allen and a lawyer for the property owner/developers, Melody McCutcheon.
1:40 PM: Kennedy is speaking, making their contention that the lot should only be for two homes – anything more is “starkly out of character.” The neighborhood contends that the Lot Boundary Adjustment has granted “unique development rights (to the new owner) not shared by the rest of the neighborhood. … This is wrong.” She also notes that the decision “was issued (by the city) in haste … many of the interpretations, methodologies, and calculations … were not written down and were not accessible to the (residents’) association … This process denied residents a meaningful opportunity to raise their concerns at a point in time when it would have mattered.” Kennedy has a black-and-white aerial photography of the neighborhood on an easel as an exhibit she is using to show the judge some of the key points. “This is a neighborhood where other neighbors and developments have played by the same set of rules regarding development … but this LBA does not.” She’s now showing the view from which the neighborhood takes its name, out to Puget Sound, and then the massing of the expected future development, as shown in our January story:
And she’s showing the configuration of the boundary adjustment the city approved – including one plot in an “L” shape. Here’s a version to which Benchview resident Allen had added color, also from our original January story:
**OUR AS-IT-HAPPENED COURTROOM COVERAGE CONTINUES BELOW**
Kennedy accuses the developers of “manipulating the rules.” Her argument has continued on into contending the city should take into account “the reality on the ground” rather than interpreting the code with ways that structures “could have” been built when the house was built in 1952; “which side is the front” of the lot being central to the neighborhood’s argument under the “75-80 rule” (explained in #12 here). The city should have considered the 55th side, not the Manning side, she explains, adding that Manning did not exist when the current house on the site was built in 1952. And adding up some other technicalities, she summarizes, there is only one other lot available for the LBA, not two.
2:01 PM: Kennedy continues her presentation, which includes details of how a balcony could not have met requirements unless 55th was considered the front of the site. The city erroneously considered only the Manning block face, she says. She goes on to say it was “absurd” that the approval of one “sub-standardized lot” was used as justification for approving the others. “This is clearly erroneous.” The judge is now asking what kind of math the lawyer did compared to the city – this all relates to a certain percentage of other lot sizes, required for a boundary adjustment like this. The city says its calculations came from the developer. And she says the LBA “should be rejected” because it violates a Department of Planning and Development director’s rule (#1087) against rotating lots 90 degrees.
She also says that DPD erred in making this a “Type 1 administrative decision” that “shut out” the neighborhood association. She says the decision had a “one-line rubber stamp – ‘Your Lot Boundary Adjustment has been approved’” without explanation. She wraps up the presentation at 2:18 pm, asking the judge to reverse the decision.
2:19 PM: The city’s lawyer asks if he can speak from closer up, while the neighbors’ lawyer had spoken from the table. He says DPD has had a “longstanding, consistent” way of determining “the orientation of a house.” The judge wonders if he’s saying that the city changed the orientation of a certain lot back in 1999. The lawyer says the “historic lot exception” was platted back in 1890. He is showing several examples of what he says are consistently similar decisions elsewhere in the city in earlier years. He says the standards are not based on “something like ‘where’s the front door’.” The judge is questioning him more frequently than she questioned the neighborhood’s lawyer. She’s also asking him about the developers’ plans, and then he moves on to focus to terms in the zoning code that was in effect in 1952 when the original house was built. He also talks about houses on Manning and says “front line” is about setbacks, not about “orientation.”
2:34 PM: Now Downs is going into the city’s side of some features on the property that were brought up by neighborhood lawyer Kennedy, including decks. At issue, he says, is when the decks were added, and therefore when the city approved them, and what that says about the part of the site over which they protrude. “Even if (the decks were) nonconforming, that doesn’t make the house nonconforming.” The judge says yes, but brings up the neighbors’ point that Manning couldn’t have been the street on which the house faced, because it didn’t exist in 1952. He contends 55th was just the street of “access,” not necessarily of frontage. The judge then brings up that he’s been veering between the way things stood in 1952 and now, and “shouldn’t you be (taking into account the way things were then) … So, they could have had the frontage on Manning Street (in 1952) even though it hadn’t been built?” Then Downs is on to the contention that the site really is three of 11 lots fronting on the block along Manning.
“I have a question to you about what a lot is,” interrupts the judge. “You can’t have a lot that’s 2500 square feet.”
“Oh yes you can,” Downs says, explaining the small lots platted long ago (1890, in this case).
“You can’t put a house on a 2500-square-foot lot,” the judge says, quizzically.
“You absolutely can,” Downs replies.
He then tried to explain how this relates to “short subdivision” creating smaller lots and how/whether they fit into the community. “How do these 2500-square-foot lots fit in, then?” Judge Spearman asks. City lawyer Downs replies, “It’s a matter of right” – and of the zoning that allows lots to be a certain percentage of size of other blocks on the lot, which is why they’re arguing here over whether the parcel fronted on 55th or Manning.
2:56 PM: He contends that Director’s Rule 10-87, cited earlier by the neighborhood’s lawyer, “is dead” because of a court case. And he says he’s wrapping up by saying, “The record supports the city’s decision, it’s consistent with prior applications, so I encourage you to uphold the city’s decision.” He concludes at 2:59 pm, and the owner/developer’s lawyer Melody McCutcheon takes over in front of the bench. She says she “convenient(ly)” has the code sections “that resolve this” all in one place, and hands them to the judge. For starters, she refutes an allegation that an “inexperienced planner” reviewed this; a 26-year veteran reviewed it, she contends. She also says it’s not true that the decision “received detailed analysis” only after the decision was made. She points to a 2-page cover letter and 3-page explanation signed by “the department director (Diane Sugimura).”
McCutcheon contends that the neighbors “have the burden of proof. … The question is not whether (the neighbors) think this should be interpreted differently, the question is whether the city’s decision is erroneous.” And she contends the process under which this is being challenged is supposed to be deferential to the highest-level of fact-finding that happened earlier. She also contends that the neighbors’ arguments, whether future houses will “loom over” others, or whether views will be affected, cannot be considered – “you have to base your decision on a code which is what DPD did.” She says even if the neighbors can make their argument about ‘Lot 9 being a rear yard for the house’ – that’s “not relevant …the question is whether its existence is required for everything on the site to meet code.” She contends, “There’s no question that Lot 9 is not required as a rear yard for the houses on 10 and 11.”
3:09 PM: She contends the deck/balcony never had a permit and so is “not legal,” so whatever year it was built – with the house in 1952, or in the 1980s – it can’t be factored into this. And she repeats that she believes “there is no question” all the lots are “existing lots.” And she says the neighbors’ arguments use language from the city code prior to changes in 2011. She also says the court should not change the city’s decision “just because these neighbors fear what might come.” She wraps up asking that the petition be dismissed, at 3:20 pm. The neighbors’ lawyer then rebuts. She says the city has to “pick one code and apply it” in cases like this, and notes “specific words in the 1952 code that have a plain meaning – front line is not ambiguous – rear line of the building is not ambiguous … Lot 9 is required for the rear-yard setback because the house fronted on 55th Ave. It could not have fronted toward Manning because Manning did not exist, and because the balcony did exist …” Regarding whether there’s a permit for it, she says the only permit on record is that for the original structure. “From 1952, we clearly see the outlines of what we now see on the ground” including a balcony on the north side, and a “rear deck.” She claims McCutcheon erred in using King County Assessor’s “notes” as if they were “building permits.” She contends those components were “reconstructed” in the ’80s. And overall, she contends that DPD’s “interpretations have been all over the map.” She brings it back around to their argument that 55th SW is the block face that should have been considered, not Manning. And she goes back to the decision having been issued by an “out of class planner” while they were being told that additional facts they were bringing to light would be considered – not knowing a decision already had been issued.
3:35 PM: The hearing has concluded after two hours, with Judge Spearman saying that she had a lot of material to review and needs to “think about it,” so she will issue a written ruling at a later date, described only as “as soon as I can.” We’ll continue to follow up and will publish news of the ruling whenever it’s available.
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