By Tracy Record
West Seattle Blog editor
It started with a tree.
It’s grown into something more.
We first wrote about it seven months ago, in early June, when a neighborhood 9-year-old was going door to door to let people know that the Ponderosa Pine’s days might be numbered.
Its fate was seemingly sealed by this preliminary city opinion, sought right after the sale of the site, including an existing house at 3038 39th SW, was finalized in November 2015. Allowing a new house on a site smaller than 3,200 square feet – this one is measured at 3,166 sf – requires a “special exception.” The city announced in October that it would grant one.
The ensuing months have taken the case through twists and turns. As also reported here in October, the Seattle Green Spaces Coalition filed its own appeal of the city’s decision allowing a new house, but that appeal was dismissed in November. Neighbor Lisa Parriott, leading the neighborhood appeal – part of which was dismissed in the same November ruling – learned that the cost of the challenge could go well into five figures.
She and other residents involved in the case gathered at her house on Sunday to talk about it as the hearing drew near.
“The bottom line (is),” Parriott said, “what does it take to establish a legal building site? The code basically says, deed, plat, or building permit.” But in granting “historic lot exceptions” as was done here, Parriott says, “the city has gone beyond that, which kind of surprised us – (even) looking at sewer cards. We’re paying for their salaries to do this code interpretation and to defend their decision. … We’ve seen a pattern in the 81 ‘legal building site’ letters we’ve received (for review),” with the city going outside established parameters to justify granting permission to build on sites that for example are otherwise too small.
In arguing whether a certain piece of property should be considered a legal building site, if it’s been part of a site with a pre-existing home, the city has to try to guess what a property owner’s intent was many decades earlier. Parriott and supporters also have found themselves looking for clues. The clues they have found in this case include “old photos showing tire tracks,” indicating the site was used for parking, and that there might have been a thought of using it for a garage someday.
But the tree itself speaks loudest for someone’s intent, Parriott contends. “The 150-foot pine tree is not native – someone intentionally planted it in the center of the lot, (which has) been sold contiguously since the ’40s.” The city, however, she says, “is only considering the facts to support their decision,” which she terms “infuriating.”
Zieman said they have found a case in which building permits were granted all around a particular property but that property had no specific permit, and the city ruled it was NOT a legal building site. “Like an onion, we keep peeling off the layers, we keep learning more as we go. We keep coming back to feeling like the game is rigged.”
In the sale of the site with the tree, the neighbors believe the 80-something man who sold it to buyer Cliff Low was not aware he was selling a house plus a site for a second house. If city code were clearer, property owners and their families could benefit more from selling for fair-market value, they contend. “All of us have been asking questions and putting pieces of the puzzle together.”
It’s a costly puzzle, and they don’t know how much more costly it will eventually be. In order to pursue the appeal, there was a $2,800 charge for a “code interpretation.” And they’re expected to cover the cost of city staff time to respond to the appeal, though they say they haven’t received an update on what that’s adding up to so far: “We feel like our rights have been challenged, with the financial barrier.”
Another obstacle: They say an erroneous notice about the hearing date was sent to the 80 people who commented on the proposal. And they haven’t received most of what they’ve requested via the public-disclosure process.
We asked if they have been in contact with property owner Low. The neighbors say they asked if he wanted to sell the site: “He was not interested.”
They’ve also taken the issue to politicians. Zieman described City Councilmember Lisa Herbold as “very supportive.” Parriott said the mayor’s office has broken promises to get back to her – as reported here in July, she brought it up during an open-microphone Q/A when Mayor Murray visited a 34th District Democrats’ meeting, and he directed her to his staff, but “nobody (from his staff) has ever followed through.”
That’s on top of the disappointment and frustration they feel in dealing with the Department of Construction and Inspections. “We think they made an error” in writing the original “legal building site” letter and granting a permit, Zieman summarized, and then, “we think the city threw up barrier after barrier” in their attempts to challenge it. “Seems like they’re doing a legal Twister to justify” their decisions.
Seattle Green Spaces Coalition’s Fleck noted at that point that one mission of her group – which got its start in West Seattle – is to “watch over city processes and work with neighbors.” SGSC’s appeal in the case was thrown out “because we didn’t file for a code interpretation,” which she says would have cost that $3,000 fee. “We feel that’s an abuse of process – it denies people the right to be heard. It’s an extraordinary burden to put on citizens who want to get engaged in what’s happening.”
Since the “code interpretation” work was already being done for Parriott’s appeal, she says the fee would have been gratuitous: “If there were 10 (more appeals), the city would have collected $30,000.”
Fleck says SGSC will ask the City Council “to direct SDCI to only ask for the $85 fee set forth in Hearing Examiner rules” for appeals.
And they will ask the City Council to repeal the “historic-lot exception,” which they believe “has outlived its usefulness. … We think that exception should be closed, and the city should get rid of letters of opinion and just follow the codes.”
But first, their specific appeal itself has to be argued before the Examiner tomorrow. And it comes down to trying to determine the historic intent of previous property owners. Fleck spent time trying to find relatives of the early owners – at least four between 1930 and 1957, when the neighborhood was zoned. “It was always sold as one property, and (the tree site) was always used as a side yard.” They also researched the ownership post-1957, at least four changes – and no one ever filed for a building permit. Zieman even found a swimming pool was on the lot at one time.
The city, meantime, is using a sewer card as one of the references in trying to make the case that this was considered a separate building lot, the neighbors point out – it’s #11 in the “interpretation.” (All the documents filed in the case by both sides can be found here.)
Are exceptions being sought in the name of density, building more housing? Zieman says, “Density may be the buzzword, but it’s more about (liability) … who has the deepest pockets … neighbors don’t have the deep pockets the (developer/builder) does. … We think the balance needs to be reset. Citizens and developers should have an equitable process, the same process for everyone.”
Tomorrow (Thursday, January 12th), the public is welcome to observe in the Hearing Examiner’s chambers, on the 40th floor of the city Municipal Tower downtown (700 Fifth Avenue). The hearing starts at 9 am. Here’s the just-filed brief summarizing the neighbors’ case; Parriott says, “We not only want to be successful with this tree, we want to be successful for our community … we want to take the next step so people can protect what they value in their neighborhood … We are hoping to knit together the communities that have been active (in related land-use issues) since 2012,” and get some changes made. That will likely require taking their case to King County Superior Court, so they’re continuing to raise money to help with expenses. The Washington Forest Law Center (run by West Seattleites) is representing them in the appeal. (And again, they don’t know what kind of bill they’re facing; it includes time for city staff at tomorrow’s hearing, and they’re expecting at least three staffers, reportedly at $300+ per hour each.)
Tomorrow’s hearing is not likely to result in an immediate decision; typically, the Examiner concludes by promising a ruling within a few weeks.