(Aerial showing 3078 Avalon project site, from project materials distributed in fall 2013)
By Tracy Record
West Seattle Blog editor

Hearings often yield information beyond their immediate subjects.

During day two of the Neighbors Encouraging Reasonable Development (NERD) appeal hearing regarding a planned ~100-apartment building at 3078 SW Avalon, we learned about a lawsuit involving the project site. We also learned about a lawsuit involving the site next door that once was slated for a “twin” building. Neither is directly related to this appeal, yet both are relevant, in looking at the big picture of development in that area.

And we heard a lot more about how the city’s Design Review process works, and doesn’t. We also heard Hearing Examiner Sue Tanner, who is presiding over the hearing and will rule on the appeal, say that her office hasn’t traditionally had “broad jurisdiction” over the process.

The Design Review approval of the project is one of two city decisions that NERD, based in the single-family-home neighborhood north of the west stretch of Avalon, is appealing. The other is the Department of Planning and Development‘s “determination of non-significance” (DNS) saying the project did not require a full environmental-impact report.

It’s an uphill fight, with the hearing examiner required to give the most weight to the city’s decision unless the appellant proves it was in error and should be overturned.

Today is the third and final day scheduled for the hearing, though some testimony already has been scheduled for a spillover date in two weeks. We have been at the hearing examiner’s Municipal Tower hearing room for both days so far and are expecting to be back again today. Here is our report from day 1; below, the toplines from Day 2:

Lawyer Peter Eglick represents NERD; across the table from him are Bill Mills, a senior planner for DPD who also happens to be a lawyer, and Rich Hill, the lawyer representing the applicant/prospective developer, Northlake Group.

The day began with a dissection of which transit stop near 3078 Avalon was used as reference for the project review. Eglick’s questioning was somewhat contentious and at one point he explained, “I just have this feeling that we’re not being told something and we’re going to find it out later in some big surprise,” so he was trying to ask his questions in a variety of ways. Again in this second day, there were moments of tension at the hearing, which otherwise was so wonky that one of the more-memorable quotes we noted was a witness advising that he be stopped if he starts “speaking in acronym.”

Another recurring issue: Who authorized the application for the project’s MUP (Master Use Permit) once it got past the first stage of Design Review? Portions of various documents were read, including a letter that declared “Northlake is and has always been authorized by the property owner to pursue the MUP application,” while another seemed to reiterate that the property owners and developer “are not in contract.” This is where the lawsuit involving 3078 Avalon came up; online court records show that it was filed in May. Northlake’s Jim Thorpe described it in testimony as a case of the property owner “holding out for more money” than originally agreed to. (A hearing in the lawsuit is scheduled for Friday, the records also show.)

Then it was back to the issue of the “frequent transit within a quarter-mile” for the area. DPD’s transportation specialist John Shaw said there actually was at least one other stop that would have qualified. Eglick protested, saying that the months of preparation for the hearing focused on only one stop mentioned in DPD’s reviews, and if a second stop was going to be introduced, his case would need time to consider the information and figure out how to respond to it. (The second stop is the one at Avalon and Yancy.)

In the witness chair next was Paul Haury, the neighbor who has been the most vocal member of NERD, which he said the neighborhood launched after realizing that the Design Review process wasn’t working the way they expected it to. He said he has lived on 32nd SW for about 12 years and is a native Seattleite from a family that’s been here for multiple generations. He said he has attended every meeting related to 3078 Avalon and helped organize the neighborhood’s response to it.

The West Seattle Junction Hub Urban Village Neighborhood Plan from 1999 specifically calls out his neighborhood, Haury said, pointing to page 40, as one of “three pockets of single-family zoning within the (urban) village boundaries” and recommending that the plan “protect the character and integrity of the existing single-family areas.” (Here’s the full plan, part of the Comprehensive Plan that was designed to look ahead to this year:)

Challenges to that character and integrity, he testified, include three microhousing projects built/proposed without offstreet parking – the completed Footprint Avalon I at 3266 SW Avalon Way, the proposed “carbon copy” ~56-unit building that was close to starting construction next door at 3268 SW Avalon, and the 100+-unit building proposed at 3050 Avalon (which Haury described as a “nasty” site where “we would like to see reasonable development”). The latter two are on hold, as reported here September 23rd, because of the city’s interpretation of a recent court case.

Haury’s concerns about how Design Review played out for 3078 Avalon included the fact that none of the three hearings included the same group of board members, which affected continuity of board discussion. He said the weight given to concerns regarding Avalon, as opposed to the ones regarding his street, seemed to mean “the neighborhood comments didn’t matter,” which made no sense to him, given that he and his neighbors are the ones who will be facing the building as it rises over the alley across from their homes.

He said that DPD’s planner for the project, Garry Papers, told the board that it didn’t have the authority to just remove a floor from the project. Exactly how this was or wasn’t said has come up several times during the appeal. Though it’s not part of the record in this appeal, we note that our report on the contentious second Design Review meeting, held in November 2013, includes this paragraph:

… Papers speaks up to try to “take the edge off.” He says, again, Design Review might be able to effect change in terms of “feet, not floors.” But, he says, the site is zoned for this. “A lot of this tonight is about you’re not happy about that zoning. (But changing it …) is not authority this board has. Lopping off two stories is not a reasonable expectation of what the Design Review Board can do.” …

It’s also been pointed out multiple times that the project was lowered to some degree over the course of the three Design Review meetings, and that a city code change removed 15 “bonus” feet that at one point could have been incorporated into the project. But, said Haury, “The mere fact that we are here, that our neighborhood pulled together and hired a lawyer – no, we do not agree” that their concerns were mitigated.

Discussing the parking situation in the neighborhood, he noted that the study related to the review of this project preceded the opening of the 3266 Avalon microhousing building, and “would not even come close to what’s there now.” But, he said, the neighbors are not “against the people in the microhousing – (the appeal is) about bad policy decisions affecting the neighborhood in an adverse way.”

He showed photos he said he had taken of parking conditions while out for one of his three daily walks with his dog, and mentioned tweeting them to the mayor (among others):

(Haury said he received a reply suggesting he call 911.) And he showed a photo of the now-fenced-off substation (and former Beni Hoshi Teriyaki) city-owned site which he said had become spillover for the microhousing residents.

The parking crunch was again the topic as the hearing reconvened following lunch, now focused on the applicant and city’s side, with Hill asking DPD’s Shaw if other areas in the city have similar challenges. “Yes,” Shaw replied, “I frequently see parking studies from other neighborhoods with areas over 100 percent” parking utilization.

The transportation/parking effects took up a lot of time in the project review, said planner Papers, next in the witness seat. In his time with the city these past few years, he said, he has reviewed “20 projects that are in building permit and/or construction (stage) and 30 more active projects in Design Review or MUP review stage.” The final report for 3078 Avalon, he said, included two “departures” – zoning exceptions.

Asked what kind of in-progress documentation goes out during the review process, he mentioned memos issued about 10 days before each Design Review meeting, “usually with a summary of public comments.” The fact this project is in a “transition zone” – midrise multifamily right up against single-family – was called out to the Design Review Board as a “high priority” throughout the process, he said. But, Papers said, he also pointed out that “the Design Review meeting is not the place to change zoning or argue for changes in the city code.”

Acknowledging the neighborhood plan “clearly outlined a protected neighborhood,” Papers said the protection boundary was along the alley, between the neighborhood and the development. (Questioned a while later, he reiterated, “i think it’s clear the single-family neighborhood is meant to stay single family but the protected boundary does not extend over to Avalon.”)

As for the format of the meeting, he mentioned the public-comment period was extended at the Early Design Guidance meeting “because of the large attendance,” and pointed out changes to the proposal that resulted from public comment, such as the location of a courtyard along the alley, and a reduction in the “dark cladding” on the project’s exterior. Lowering the project, as had been suggested, would have created more problems than it solved, he suggested. Overall, he said, over the course of the three Design Review meetings, “the board felt the responses … were an appropriate balance” of concerns and guidelines they had emphasized. (The guidelines refer to a formal list of points the board can consider; at meetings, they go through the list and identify which ones are most important for the project under consideration.)

Under questioning from NERD’s lawyer Eglick, Papers again defended the composition of the board at the project meetings – for example, three were present for the first meeting, with two absent, but three is “quorum,” he noted.

Eglick then got into a not-often-discussed aspect of Design Review Board membership, that each member is identified as a representative of a particular stakeholder group, such as community, developer, design, business. Which representatives were at these meetings? he asked. Papers said that wasn’t tracked, and pointed out that with seven boards citywide, “I have 35 members to keep track of.” Another DPD staffer works to get substitutes when needed, he added, and figuring out which “interest group” they represent is not a factor.

In the day’s final major section of testimony, featuring DPD’s lead rep Mills – whose background as a lawyer, before he went into planning, plays into his work “draft(ing) legal building-site determinations” and other documents for the department – one other big issue with the project returned to the spotlight: An error in calculating whether it met the rules for FAR (floor-to-area ratio). He explained that the interpretation mistakes involved portions of lower floors that were claimed as exempt from consideration but were not.

Under questioning, he said that projects do not have to be confirmed as “fully compliant” with code (zoning) while going through the Design Review process. The zoning compliance doesn’t get final approval until much later in the process.

But, he acknowledged, the DPD staffer(s) reviewing zoning compliance for 3078 SW Avalon Way did not notice this error or generate a “correction notice” related to it, so it was not pointed out to the Design Review Board.

Today, applicant attorney Hill will present his case, with witnesses including the project’s architect, Radim Blazej from Caron Architecture (who sat in on much of yesterday’s proceedings, which had no spectators other than people with some interest in/relation to the case). Because of new material that’s emerged, there will be some additional testimony on October 17th, even if everything else wraps up today. At some point before writing her ruling, hearing examiner Tanner will visit the site, she confirmed Wednesday.