By Tracy Record
West Seattle Blog editor

If you saw a woman with short white hair, perhaps a notebook too, roaming the 3200 block of California purposefully over the weekend – that just might have been City of Seattle Hearing Examiner Sue Tanner.

She’s the most powerful city official you’ve (probably) never heard of, and she announced at the end of last Wednesday’s combined hearing on that block’s three-years-in-progress “upzoning” request that she would make a site visit before writing a report on the request and ruling on a related appeal, “probably (visiting) on the weekend.” (Whether last weekend or next, we won’t know till her report.)

“But if you see me,” she warned, “do NOT approach me.”

Though you are not asked to rise when she enters her chambers on the 40th floor of the Municipal Tower downtown, Tanner’s role is similar to that of a judge. She listens to sworn testimony, sometimes to public comment, in hearings on matters that may sound mundane from a distance, unless you are the one whose livelihood and/or property will be directly affected by the ruling – as is the case for most of those involved in this case, both the neighbors along the blocks immediately behind the block proposed for a zoning change, and those who own the dozens of parcels that would be eligible for higher buildings and larger commercial spaces if the zoning is changed.

On Wednesday of last week, the rezone proposal occupied the Hearing Examiner’s docket for the entire day, which began with most of the 30 or so seats in her chambers filled – mostly with the aforementioned neighbors, wearing lime-green ribbons – and ended seven hours later with most of the seats empty.

Though 2 years and 9 months passed between last week’s hearing and the previous time that public comments were taken on Roger Cayce and Mike Gain‘s proposal to rezone an entire block of California SW and its formal city hearing – much remained unchanged, such as the players who were on hand at both events (the first one was a community meeting, not a formal part of the process):

As was the case at that meeting on November 29, 2007 (WSB coverage here), Gain and Cayce both spoke, though most of the talking on their proposal’s behalf was done by their primary representative, consultant Josh Stepherson. And as was also the case then, most speaking against the rezone identified themselves as residents of the neighborhoods immediately to the east and west of California – though they were joined, again, by neighborhood advocates: Mark Wainwright, who detailed why the Admiral Neighborhood Association had taken a stand against it in 2007, when he was its president, and Dennis Ross, who led the predecessor group Admiral Community Council, and is officially appealing the “environmental nonsignificance” ruling regarding the proposal.

Another constant: There remains no specific development proposal for the rezone area, which fuels some of the opponents’ concerns and some of the proponents’ promises, and which again at last week’s hearing led to a suggestion that a “contract rezone” specifically applying to some specific future development proposal would be more appropriate than a “blanket rezone.” (That came up in November 2007, and we noted that the planner on the case – who isn’t on it any longer – said she’d look into it. In the DPD report recommending approval of the rezone, the concept is mentioned only in the context that this is not a “contract rezone” proposal and there is no specific project being proposed right now.)

But it wasn’t pure deja vu. One big change: When this first came up, the development market seemed white-hot. We were at Design Review meetings twice a month, and photographing teardowns-to-townhomes seemingly every week. Now: The Southwest Design Review Board just met for the first time in six months (the 7100 Delridge project), and the most recent demolition we covered (former Pegasus Pizza location on Alki) cleared a building to make way for one smaller than the existing structure – because, its owner told us, he couldn’t get financing for anything bigger.

The proposal to rezone the California SW block between Hanford and Hinds first went public in fall of 2007, not with an announcement or briefing, but with a line in the twice-weekly Land Use Information Bulletin. The then-president of the Admiral Neighborhood Association, Mark Wainwright, suggested publicly that Cayce and Gain might have gotten the proposal off to a more well-received start if they had approached the community first to talk about it, rather than filing the request and dealing with the shock waves. They in turn contended they wanted to restore the area to its earlier zoning and eventually build “something nice.” (The proposal would change the current NC1-30 – thirty-foot buildings, commercial spaces up to 10,000 sf – to NC2-40 – forty feet, 25,000 sf, similar to how the area reportedly was zoned prior to 1990.)

You can scroll down to the start of our coverage archives on the issue to see where things went from there. Though that not-required public meeting eventually was organized, there was concern that the proposal did not get sufficient public airing before launching right into the official process. For most of 2008 and all of 2009, the issue was dormant, and then in June, the city Department of Planning and Development finally released its recommendation for approval of the rezoning, along with a Determination of (environmental) Non-Significance.

That triggered the next phase of the process, which led to the full day of proceedings Wednesday – first public comment and official presentations on the proposal, made to the Hearing Examiner, who will issue a report to the City Council, then the hearing on an appeal filed against the DNS.

As noted here following a pre-hearing conference last week, the day’s first order of business was to be public comment on the rezoning. 16 people spoke – 10 against, 6 for (including applicant Gain; his business partner Cayce did not speak during the comment period, but was a witness later during testimony on the appeal). Hearing Examiner Tanner also indicated that she had received written comments “from some members of the public”; the hearing day last Wednesday was also the official deadline for such comments.

Each person who provided comment sat at the end of a rectangular table that faced Tanner and her paralegal, with room for three or four people on each side. Throughout the day, Ross sat on the left side of the table, while Stepherson, an assistant who never spoke, and DPD planner Shelley Bolser – who said the proposal had been turned over to her toward the end of last year – sat on the other.

The first to testify was Steve Levey, who had joined Ross at the pre-hearing conference on August 10th (WSB coverage here). He told Tanner that he and his neighbors in the 3200 block of 42nd SW, immediately east of the proposed-upzone block, had “been working on the issue for 33 months … We are not opposed to development in West Seattle, but we feel this rezone will degrade the character of our adjacent neighborhood and will do very little to upgrade the commercial life of the 3200 block of California.” When he finished his comments, the first and last applause of the day broke out in the chambers – Tanner informed the room that applause is not appropriate in the proceedings.

From the same block, Janna Annest spoke next. She pointed out a unique factor in the relationship between the proposed-upzone block and the block where she lives: No alley. Acknowledging that the DPD report points out the slope between the California properties and 42nd properties as a buffer, she said, “We don’t think the DPD adequately took into account the fact that slope varies tremendously, literally house to house. It disappears entirely on parts of the block.” She voiced concern that a new development at the proposed 40-foot height could bring, “maybe 8 feet behind our fence, a wall of windows and condo building looking into our (home) … I believe it would make our property unlivable, we’d be living in a fishbowl.”

That “wall” could rise 47 feet under the proposed new zoning, said her husband Dino Annest, speaking next, saying that even with the aforementioned slope, that could be 21 feet above their fence, “two sets of windows staring into our home.” He spoke also of the congestion concerns arising from the absence of an alley, with trash and delivery trucks having to access properties from California – already now, he said, some delivery trucks simply “park in the middle lane” of California. “At the very least, this should be a contract rezone” to set conditions with specific development proposals, rather than a rezone for the entire block, he concluded.

The city outright erred in analyzing the effects of property height, given the variable slope, contended the next person to speak, Phil Wingard, also from the 3200 block of 42nd. “To allow a blanket rezone would be to say those differences didn’t exist.”

Wife Monica Wingard followed him, focusing on parking and traffic effects, and the stress already placed on both by the presence of schools including West Seattle High School immediately north of the proposed-upzone block and the Swedish clinic immediately south, which she said has parking for patients but not for employees. On their block, she explained, street parking is only allowed on the west side, which already means a competition for spaces among neighbors who don’t have garages or otheroffstreet parking.

Next to speak, the first commenter in favor of the zoning change – one of the applicants, Mike Gain (Tanner observed during his remarks that it’s unusual to hear from an applicant during the public hearing), beginning with what was something of a rebuttal to a few remarks made by the 42nd SW residents who spoke before he did.

“I have a vested interest in not only this block, but also what happens in the rest of West Seattle,” began Gain, who currently runs Prudential Northwest Realty, which moved its offices last year from the proposed-upzone block to Jefferson Square. Responding to an earlier speaker’s suggestion that he and Cayce did not have a development track record, he detailed several properties in other parts of West Seattle that they have developed, and moved on to suggest the neighbors’ choice of green for their ribbons was ironic because “everything we do build is green.” He agreed with an earlier observation that most of the properties in the 3200 block of California are “dilapidated” … regarding his own, he said they’re maintained and “not vacant, but we’re not going to spend a lot of money on them because we do intend to develop.” Insisting that the block “needs to be developed,” he also noted that any development proposal would require permit applications that would open another phase of community input. “If you have the extra 10 feet, it allows you to build a nicer building and supply adequate parking .. if we develop, we hope to have underground parking and ease the parking problem … I think a lot of the things that (opponents said) were the same things voiced at the community hearing (in 2007) and I think the DPD spent a lot of time reviewing these issues and came to the only appropriate conclusion.”

Dennis Ross spoke next, testifying separately from the appeal process that came later in the day. He cited the Admiral Neighborhood Plan, noting that he was president of the Admiral Community Council when it was written. It recommends, he pointed out, that “existing zoning remain” and that zoning not be changed unless it could be shown that would enhance the neighborhood. He also acknowledged that the city contends that part of the plan is “unadopted.” Nonetheless, he said, there is already more than 400,000 square feet of NC2-40-zoned land in Admiral (triple the size of the proposed rezone). To suggestions that it will add needed housing stock, Ross called attention to the ~40 that are in the plans for the Admiral Safeway site, “and 10 more permitted (in Admiral) now,” adding that he’s concerned that affordable housing on the block will be replaced with not-so-affordable housing, while more of the former is needed.

Whatever is eventually built there, developer/land owner Gary Cobb – whose company Cobb Construction is in the proposed-rezone area – said next, it won’t be built any time soon. He suggested redevelopment might still be a decade away. Or more – he mentioned “maybe … 30 years.” At any rate, he said, “I have no intentions of redeveloping or tearing down my building” even if it’s approved. But his main point, with which he opened his comments, involved his perception of why the 42nd SW residents are opposing the upzone: “I think the main argument on 42nd is that there’s a slight view. It does bump up from California quite a bit. What I’m hearing is that the neighborhood doesn’t want to lose their view.” (This drew audible, disapproving reaction.) He continued, “Right now, if the properties (on California) were developed to the (permitted under current zoning) 30-foot limit, many of those views would be gone.”

Another construction-company owner on the block, Steve Zeasman of Constructive Energy, noted that he bought his building in 1989, “a few months after the downzone of the block,” and looked at redeveloping it about a decade ago, but felt constrained by the current 30-foot height limit. “We were going to provide 45 units of housing, (in an) architecturally significant (building) … but the (height limit) didn’t allow much architecture in terms of drama …” He characterized the block as “the only one on California that has been downzoned” and “about the only one that hasn’t witnessed redevelopment of significance.” Of the applicants, Zeasman said, “(They) have been my neighbors for years. I believe they are sensitive to the neighborhoods they redevelop in. I know them to be upstanding guys.”
If this doesn’t happen, he warned, “We’ll eventually be the only block on California Avenue living with a series of ramshackle buildings.”

He was followed by former neighborhood association president Mark Wainwright, who recapped points the group made in its official fall 2007 letter opposing the rezoning (read it here), while also observing that it’s been “very difficult for the community to deal with a process lasting two and a half years … this process has been anything but meaningful.” While almost all of the block is considered to be in the Admiral “urban village” zone, it is “separated from the core of the Admiral neighborhood,” Wainwright noted, suggesting it makes more sense for the city to encourage “more intense development in the center of our neighborhood … it makes for a more walkable, transit-oriented community.” As for this block, he said, “I think the neighborhood is up for considering a specific contract rezone on a (specific) parcel – so that, along with the rezone, comes specific public benefits.”

Another resident of the 3200 block of 42nd SW, John Hanson, followed Wainwright, with brief remarks centering on concern about parking. To Gary Cobb’s earlier point, he declared, “I have no view.”

A property owner from the west side of the 3200 block of California spoke next – Brandon Gillespie, who owns 3247 California SW, where he operated Beato Food and Wine for more than two years. He said the block’s “problems” – including “terrible” lighting – were among the reasons his restaurant had to close last November, despite “great reviews.” Gillespie said he couldn’t rent the space for a year after that, and then when he did, the restaurant that followed (Eness) “was open for 3 months.” (This is the space where Blackboard Bistro just opened a week and a half ago.) “The only way to attract the funds necessary to invest in this section of West Seattle is to rezone it,” Gillespie declared. “It just doesn’t make sense any other way … If (the rezone is not approved) that block will just disintegrate. You will deal with crime … even squatting.”

From the block behind Gillespie’s side of the street, on 44th SW, came the next to speak, Lynn McIntosh. She gave Tanner seven letters she described as from rezone opponents in her neighborhood, including herself. First, commenting on what Gillespie had said, she suggested the new restaurant at 3257 California “has a better chance” because it’s “less expensive.” A point she made that hadn’t come up before was a refutation of rezone supporters who pointed to the process that would be required to approve specific projects, saying they’d have to go through Design Review. That didn’t happen for the townhome complex at 3409 and 3423 California (here’s our brief 2007 note on the site) – “(The parcels) escaped the (Design Review) threshold by becoming four units of four … (the complex) is huge and should have gone through Design Review.” McIntosh suggested that even with underground parking, new developments in the proposed-rezone block would pose a safety challenge with “more curb cuts” given the lack of an alley from which the parking could be accessed.” And she took issue with the California property owners’ contention that if the block’s not upzoned, it won’t be redeveloped: “My understanding is that the (block) was downzoned after briefly higher zoning because areas were standing vacant and not being developed.” And that situation exists now elsewhere along California SW, McIntosh observed: “Current developments are not being used to their potential; some have been abandoned.” The economic “boom” climate that existed when the rezone was first proposed three years ago, she added, “is not expected to return.” Not far away, though, she said, there are new buildings within the existing-zoning height limit for this area – about 35 feet – that she described as “vibrant buildings that really fit well.” She also quoted a WSB article from last fall in which Mike Gain talked about some of the new businesses that moved into the block when Prudential Northwest Realty moved out.

More business variety for the area, including those serving “daily needs,” was envisioned by Shelby White from West Seattle Realty, headquartered on the west side of the California block – providing the rezone is finalized; he said he would expect more “walkability” to result in the area, which “would enhance not just the (California) block but also the nearby single-family residences.” He said the block’s lack of “consistency or identity” is its biggest downfall, as he’s seen it in the past almost-five years of being headquartered there, so he believes a “more consistent and vibrant identity” would benefit all. But he also didn’t expect any development to result immediately “with the current economic and real-estate market … this is going to be more a longterm type of development or improvement.”

The final public comment in support of the rezone came from builder-developer Drew Beebe, who echoed previous suggestions that any specific development would require a review – “I’m sure many of the neighbors here would be in attendance and would have a big say on what gets built and how it gets built” – and that future development would improve parking. On a note of semi-optimism, he added, “I’ve heard (others say) the economy’s not expected to rebound any time soon – it wasn’t expected to drop, either.” In response to one opponent’s concern that no “master plan” exists for the proposed-rezone area, he said that would be difficult with more than two dozen diferent property owners.

Then came the final public comment against the rezone, from another resident in the 3200 block of 42nd SW, Cole Peck. He prefaced his remarks by telling the hearing examiner, “Excuse me if I’m nervous – I’m not a wealthy land owner,” and she smiled, “Some of them are nervous too.” Though little emotion had surfaced in the hearing before his turn, he spoke with some anger, talking about a real-estate agent’s assurance that zoning would “protect” his home from being next to large commercial developments. The land owners can “do improvement without a rezone,” he insisted. “This is about an investment land grab – this is about making money. You don’t need the rezone for these guys to (redevelop).” Bringing back the point that the commercial block on California and the residential block on 42nd are not separated by an alley, Peck said, “Because of the slope, they can build something that may look more like 50 feet, that completely shades my back yard, that has people looking down on my children playing in my back yard. … The people who own properties abutting this will be cheated out of property value.” While Mike Gain had earlier contended that a majority of people at the fall 2007 public meeting were pro-rezone but they hadn’t been able to speak before time ran out, Peck called that “categorically incorrect” and claimed that while city reps told those at the meeting that they’d have time to “respond in writing,” and that while they were told a date was extended, “our letters were stuffed in a file at the DPD and never considered. … This process has been stacked against us property owners from the start.” He closed by calling for the mentioned-multiple-times-earlier “contract rezone … where (various factors and concerns) are carefully considered by the community.”

That concluded the public-comment period, which lasted about an hour and a half, formatted without rebuttals. Following a break, hearing examiner Tanner listened to the official presentation about the rezone proposal – most of which duplicated what’s in the DPD’s official report (see it here), but she also addressed some of the specific points that had come up in public comment along the way, both that morning and when the proposal originally came out.

To the point of the area’s previous status in a zoning classification close to what’s being sought now, DPD’s Bolser said that was in effect 1986-1990, and was apparently rolled back because of the CAP Initiative (here’s historic background on that). Zoning changes under review right now, she said, would allow 40-foot heights for multifamily zones including properties south of the proposed-rezone block. Regarding neighbors’ observations that the slope between the California and 42nd properties varies dramatically, Bolser said that the department “normally wouldn’t require topography for a rezone” and reaffirmed that “full buildout under (existing) NC 1-30 zoning would block any existing views in the uphill properties.”

She also acknowledged an error in the DPD report, saying it did not include a “seismic overlay” showing known earthquake potential in the area. But, she added, “existing codes” would address seismic safety in any potential development, and she said she had spoken with a geotechnical engineer who told her that soil stability would be addressed in a survey for any development proposals that would come forward. To the issue of a “buffer” between the California and 42nd properties, given their lack of alley, she contended that what exists now is better than blocks to the north and south. (It should be noted, West Seattle High School is immediately to the north, and there is no buffer issue there since the high school and adjacent Hiawatha Community Center/Playfield both stretch from California on the west to Walnut on the east, with that street as the buffer between the facilities and the adjacent single-family homes.)

Bolser was followed by Gain and Cayce’s official representative as the project applicant, Josh Stepherson, who opened with the understatement, “It’s been a long process.” His main contention: With the upcoming changes (as mentioned by Bolser) in the multifamily housing codes, plus existing zoning, this change would simply bring the block in line with what exists and/or is allowed all along the rest of California SW (city zoning maps here).

Framing the request in a bigger picture, Stepherson said it would “prevent sprawl” and “protect single-family zoning,” as well as “optimizing” transit investments, where government is making them, and “promot(ing) a pedestrian-friendly mixed-use neighborhood.” And he countered opponents’ mentions of the Admiral Neighborhood Plan saying zoning shouldn’t change, by noting that zoning had changed recently – for the Admiral Safeway project, supported by some who were speaking out against the 3200 California rezone, such as Dennis Ross and Mark Wainwright. (It should be noted – and Ross pointed this out later in the hearing – the Admiral Safeway rezone was a “contract rezone,” which neighbors in this case suggested would be more appropriate, if any specific project arose.) According to Stepherson, records show the area “designated commercial with 40-foot heights” as far back as 1923. “The existing zoning is in part discouraging growth, so this new designation is key,” he concluded.

The third and final part of the day came after a lunch break – evidence in the appeal, which specifically challenges one decision that DPD has made so far, the “determination of non-significance,” which means they don’t believe the requested zoning change would have significant environmental impact. (In a case like this, “environmental” goes far beyond “ecological,” taking into account a variety of other factors, like traffic – it’s all explained here.)

Appellant Ross’s primary witness was neighborhood resident Steve Levey, who had evidence on a variety of “environmental” factors, leading Tanner to ask that he present all his testimony at once, rather than in multiple short stints.

First Levey focused on earthquake risk in the area, noting the Seattle Fault that runs through West Seattle and citing in particular a newspaper report from several years ago about chimney failure in West Seattle because of the 2001 Nisqually earthquake. He also referred to a 2007 state ruling (see it here) in which the city was told it should be more closely examining seismic risk factors.

Levey’s second challenge to the nonsignificance ruling involved air quality. Larger projects, he said, would degrade it through emissions from not just vehicles using California SW, but also adjacent side streets and the alley to the west: “We think there’s a possibility this could degrade air quality to the extent we could see increased cases of asthma and other things to which … young children are susceptible.”

Noise also would increase, he said, as it has from bar/restaurant businesses moving into the area, and that segued into the contention that parking effects were not adequately considered either – especially without the entire length of the block being an allowable parking area now.

In followup questioning once Levey was finished, DPD’s Bolser asked if he had done any studies “to show that current city code is inadequate to address” (the effects they mentioned) – in other words, she was asking, wouldn’t the newer development rules make sure those types of problems were handled? (No, he replied, they hadn’t done studies.) And property owners’ rep Stepherson challenged Levey regarding the earthquake risk and the location of the “fault zone” vs. the fault itself.

Ross then picked up the presentation of appeal evidence, going through more areas where he said the city’s analysis had fallen short, including water and drainage – yes, they can supply the area, but Seattle Public Utilities is saddled with an “aging infrastructure,” he noted – and transit service, which already is taxed by the fact that hundreds of older schoolchildren in the area take Metro, “overloading” routes such as the 55 and 128 when they all get out at the same time.

The transit, traffic and parking issues subsequently were addressed by John Shaw, introduced as a transportation expert with DPD. He agreed that there are “notable traffic generators” in the proposed-upzone area, but said that if a project “large enough to trigger SEPA (review)” is proposed for the upzone area, there would be an analysis specifically for that project. Otherwise, Shaw said he doesn’t believe the zoning change itself would “lead to significant impacts for transportation or parking” and trying to put conditions on it now “would be speculative and ineffective, because we don’t know what proposals are coming in.”

The next witness on behalf of the project was co-applicant Roger Cayce. (His business partner Mike Gain was no longer in the examiner’s chambers by the time he appeared.) His role as witness was not to defend the proposal in general but to address the points of the environmental-nonsignificance-ruling appeal; he noted that he had “worked at real-estate companies in the area for almost 29 years.” Cayce said he’d been involved in many “complicated” projects over the years, many involving soil studies. Asked by Stepherson about the seismic concerns voiced in the appeal, Cayce said any new building would be much safer. He also said he believes there’s enough sewer, water, etc., capacity for potential development, and reiterated that underground parking in potential future developments would help address area parking concerns.

As they summarized toward hearing’s end, Ross returned to the 16 housing units just south of the proposed-rezone block that did not go through Design Review, saying, “I think that can happen again – just by saying everything is subject to design review, that may not occur.” (DPD’s Bolser said a short time later that policies have changed and there are “different thresholds” now.) Ross repeated his contention that the city needs to address issues from earthquake risk to air-quality and traffic effects before approving a rezone paving the way for bigger buildings – otherwise, “we have no knowledge what’s going to happen next.”

Stepherson reiterated that while building out the block to its current zoning would meet what’s projected to be the need for housing and business space in the area, “(redevelopment is) unlikely to happen in this zoning” – his clients need the change to make it financially feasible.

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WHAT’S NEXT: The Hearing Examiner will issue her recommendation on the rezone and her decision on the DNS appeal by the end of next week. Whatever she recommends, the rezone proposal would be scheduled for City Council consideration – first a committee hearing, then a full council vote.

EDITOR’S NOTE: While this story has been in the works since the hearing, a followup discussion post-hearing has already taken place in the comment section following our item previewing the hearing – they’re worth reading as a supplement to this account – find them here.