By Tracy Record
West Seattle Blog editor
The fight over 3,166 square feet of land and one ~100-foot tree is in the hands of city Hearing Examiner Sue Tanner, who is awaiting final written arguments after her 2+-hour hearing on the case.
Once they’re in, her ruling is expected by early February.
We first reported on the clash seven months ago, when neighbors went public with their hopes of keeping the city from granting a special exception to allow a house to be built at 3036 39th SW (map), taking out a towering Ponderosa Pine which meets the city’s definition of “exceptional tree” and has been dubbed the “gentle giant” of the neighborhood. The exception was granted; an appeal was filed; last Wednesday, we published this preview on the eve of the appeal hearing, with neighbors saying the fight had become about more than the tree.
The tree was not the topic of last Thursday’s hearing, it should be noted; it was scarcely mentioned at all. The neighbors’ other issues, such as the thousands of dollars charged by the city for the “interpretation” that facilitated the appeal, wasn’t, either. The testimony was all about the ground beneath, and around, the tree, and what its owner intended for that part of his property when seeking the building permit in 1930 to build the house to its south at 3038 39th SW.
For the city to grant a “historic lot exception” – which it did in October, leading neighbors to pursue their challenge – the Department of Construction and Inspections (SDCI) had to determine that it was considered a separate building site going back more than half a century, though nothing ever had been built on it. SDCI staffers who have written, by their admission, hundreds such determinations were the department’s main witnesses at the appeal hearing.
The focus was on the minutiae of what information the department uses to make those determinations – which seemed to be portrayed as more of an art than a science, as the specifics, SDCI reps acknowledged, are not written into the city code.
“How does a building permit establish a separate building site? We intend to argue that (it) is not established (without) clear, firm, unequivocal evidence,” argued Alex Sidles, legal intern from the Washington Forest Law Center, leading the appeal case for Lisa Parriott and supporters.
SDCI senior land-use planner David Graves was the first witness of the morning, taking the seat at the end of the table where Parriott and her team including Sidles and his supervisor Peter Goldman sat on the left side, with those on the right side including property owner Cliff Low and wife Hyun Ju Low, their lawyer Brandon Gribben, and the SDCI reps. The gallery, which has room for more than 20 onlookers, was full.
Graves wrote the January 2016 “legal building site letter” that Low had requested shortly after buying the property, saying that a 1930 building permit for the house at 3038 39th SW was what they believe establishes the property alongside it as a “building site.” That was their opinion though the property went through “many transfers after that” without any of those transfers breaking this piece of property off separately, Graves acknowledged under questioning from Sidles.
“At no time has the yard ever been transferred separately?” said Sidles.
“That’s correct,” replied Graves.
He also mentioned a utility document called a “sewer card,” saying that while it was “not evidence in reaching our decision,” SDCI considered it “relevant” because of “lines … that appear to depict lot 3036 (39th SW) as independent … (suggesting the) city’s opinion in 1928 that it was a separate site.”
Parriott and supporters have contended that the property’s previous owner sold it for less than it could have gone for if intended to have been sold as a house plus a separate building site. Graves was asked if the property’s value had any bearing on his decision about the separate building site. He said “mortgages” were not among the information that factored into his opinion.
He was followed by another SDCI employee who has written many such decisions, Andy McKim, who said he has been with the department (formerly DPD) for almost 30 years and has been writing building-site-opinion letters since the start. McKim explained that until 1972, the city had no ordinance setting standards for a short subdivision – “there wasn’t a formal process,” so if you wanted to “carve up individual lots … (you would have to) sell off a portion of property so deeds reference (it) or get a building permit for just a portion of larger property.”
He ran through key points of the city’s land-use history, including a 1953 ordinance, and the provision for creating “additional buildable sites that are compatible with surrounding houses.”
McKim also said that sometimes his department is asked for letters to affirm that a particular piece of property is NOT a legal building site, “to lower their taxes.” And he mentioned permits for garages and “accessory structures” typically not being on separate lots.”
Under questioning by Sidles, McKim affirmed that the “historic exception” applies only to “lots of record” that were considered to have been established before 1957. And, McKim said, before 1972, the only way property could be subdivided was for portions to be specifically outlined in permits.
“So your basis for the ‘leftover pie’ theory is your years of working on this?” asked Sidles.
“That’s consistent with what we have done over the years,” McKim replied. Asked if it’s written down anywhere, he said: “It’s not in the building code. … Our view is based on the historic record – a larger parcel was owned, but the owner did not call out the full …lot, so (they) created separate lots in the only way they could have.”
“But the building permit does not say what is to be done with the remaining portion” of the property, observed Sidles.
McKim went into another “leftover pie” case, and the “small lot development” rule changes that took effect in 2014.
Third witness was Bill Mills, who had been leading the questioning of the previous witnesses. He too is an SDCI employee, and said he had written “scores,” probably “hundreds” of legal-building-site letters. One of them that came up in testimony was a letter he had written at Cliff Low’s request about another West Seattle property that Low bought, 3605 SW Willow, in 2014. Mills said that because there was a building permit for the east half of the site, with the west half left at vacant, that was deemed to qualify as a separate building site. (County records show a house was indeed built and sold there in 2015.)
Parriott was called to testify briefly after Mills, because of a question about how she – a civil engineer – had interpreted Low’s survey for the 39th SW property. She said she “found it was lacking in understanding” of such things as the fence lines, “because there has been discussion about adverse possession.”
The next document to be discussed provided a window into the avalanche of paperwork with which SDCI deals – Parriott filed a public disclosure request, and came up with a document from 2013, when the department was working on the revision of the “small lot” rules, and spelling out how many properties would be affected. It was found “in piles of uncollated, uncategorized binders,” as Sidles put it; McKim acknowledged that “my desk is a disgrace, full of paper.” Eventually, it was stricken from the record by Tanner anyway.
After a break, what were in effect closing arguments began with Sidles for the appeal.
“This case really turns on what it takes to establish a legal building lot … They say establish just means ‘create’,” but, he contended, “It’s important to bear in mind that this is an exception to the normal building rule. I think when you are asking for an exception tothe normal process you have an obligation to meet a higher standard … you have to show that it was there and that someone was going to build on it … it’s not enough to say it was separate in some sense.”
The city uses three types of documents to make these determinations, he continued – deeds, plats, and building permits. In the absence of the first two, “it all comes down to what the building permit actually says.” Sidles put a sketch on an easel and stood by it. “The 1930 building permit is for this house, not any other.” The property that is now considered 3036 and 3038 39th – “house and yard … (were) all in a single deed. All we have (with regards to a past permit) is speaking to the southern half. Is this enough? Can you really say, ‘yes, (the owner at the time) was definitely intending to build a house there, anyone can see that?’ We believe the answer is no.”
He recounted the absence of zoning laws all those decades ago, which “began to change in the 1950s … people were on notice at the time of the change that if they didn’t act to protect their rights” — such as considering that they had an “extra” lot they could someday use for a “nest egg” — “a ‘notional’ building lot could be taken away. … Can a 1930 document control our actions 86 years later? Across ample changes, there was (the) opportunity to clarify this lot. At some point you have to say, in the mind of the owners, this was not a legal building lot.” The “historic exception” law, Sidles contended, was to protect the “nest-egg” owners rather than “real-estate developers.” He noted that then-City Councilmember Richard Conlin had specifically cited “developers taking advantage of loopholes” as a reason for the “small lot” changes earlier this decade.
Sidles concluded, “We just don’t know what the owner was going to do … there’s not enough evidence in 2017 to get inside his mind from 1930 and” know what he intended for the site.
Next, for the city, Mills opened by declaring it to be a “fairly simple case” from SDCI’s perspective. Basically, as he recounted, the Hearing Examiner has to give weight to the city, and the burden of proof is “on the appellants to show that a mistake has been committed.” In his view, he said, “the appellant’s own arguments (show) that there’s a building site established here.”
Mills contended that the public records are clear, that “the documents from 1930 are not vague …” and that “to take the appellant’s suggestion that a higher standard should apply … is an impossible standard.” He also argued that with the changes in the small-lot development rules in 2014, “there shouldn’t even be a discussion of this continuing to be a developer’s loophole. There is clear Council intent about developing undersized property.” Overall, he added, “this is a neighborhood of houses built on smaller lots” and this one has room to meet the building standards including required setbacks. “The department’s opinion is that the letter should be upheld – there’s no basis for reversing it.”
The Lows’ lawyer Gribben followed, emphasizing that their view is that the building permit established this as a separate lot. “Just because there’s two possible outcomes does not mean (the decision is) arbitrary and capricious.”
WHAT HAPPENS NEXT: Tanner set a deadline for post-hearing briefs of one week after its close – that would be this Thursday (January 19th). After that, she is expected to rule within 15 days – that would be, by February 3rd.
LISTEN TO THE HEARING: The audio is available, in two mp3 files, linked to the webpage with materials associated with the case – find it here. That’s also the page from which Tanner’s decision will be linked once it’s filed.