West Seattle development: 3078 SW Avalon appeal hearing begins

By Tracy Record
West Seattle Blog editor

Two years ago, a crowd of neighbors from the neighborhood just north of Avalon filled the room for the first Southwest Design Review Board meeting about 3078 Avalon, proposed for ~100 apartments and 60 parking spaces:

(WSB photo, September 2012)
A lot has happened south of their neighborhood since then – a twin proposal for 3062 Avalon has come and gone; a microhousing building has opened a block west, with two more in the works; two more apartment buildings have opened on the south side of Avalon, just east of 35th.

3078 Avalon has continued to work its way through the system, finishing Design Review in January, though its permits don’t have final approval yet. Forming a group called NERDNeighbors Encouraging Reasonable Development – some of the neighbors have followed it with concerns and critiques.

After the city finalized the Design Review recommendations and issued a Determination of Non-Significance saying the project would have no significant environmental impacts, they got a lawyer and filed an appeal in May. The hearing for that appeal is now under way before city Hearing Examiner Sue Tanner, at the Municipal Tower downtown. We were there for testimony all day Tuesday and expect to return as it continues today.

While the case is just about one development, the issues are much bigger.

First, for reference, here’s the appeal letter from May, which details the issues on which the decision is being challenged:

During Tuesday’s seven hours of testimony (9 to 5 with one hour for lunch), much of the focus was on how the Design Review process works, and how the Department of Planning and Development (DPD) works with projects beyond that process.

Avalon is a flashpoint because it’s an extension of the urban village/center centered on the Junction/Triangle. So the roots of this dispute can be traced in one sense all the way back into the ’90s.

We found another connection – the lawyer leading the case for NERD, Peter Eglick, represented a group called the West Seattle Defense Fund almost 20 years ago in the battle over the city plan that created the “urban villages.”

Meantime, on the other side, is land-use lawyer Rich Hill, who has been involved in many of the cases we’ve covered once they got to appeal or court-case stages. In this case, he is representing the developer, referred to during the hearing as “the applicant.”

In the hearing examiner’s chamber, the two sides sit across from each other at a big table right in front of the examiner. DPD is defending the decision, and its reps are next to Hill.

But the process somewhat stacks the deck against the challengers here. As Tanner has to say at the start of the case – and at the end – she is required to give the most weight to the decision made by the director of the department that is being challenged. The burden of proof is on the challengers – appellants – to prove why a decision should be overturned.

Testimony for the appellants took up all of day one, and will continue today. Eglick started by declaring the decision the result of a “perfect storm of failures and shortcomings,” explaining that this area is unusual because it’s an “edge” between a midrise zone and a single-family zone, an abrupt transition that does not exist in many other places in the city (if anywhere).

So far, testimony and questioning focused on the issues that have dominated so much West Seattle development discussion – including parking, since the rules changed a few years back to allow construction without offstreet parking if “frequent transit” is nearby. This is the neighborhood that pointed out parking was so hard to find, spillover was moving into the abandoned Beni Hoshi Teriyaki restaurant’s lot – and the city, which owns the property, fenced it off, as reported and discussed here.

During the Design Review meetings, neighbors said the building was too tall, too big, to be in that edge zone. They brought research they said supported their claims. The project moved along anyway, though a few feet were shaved off late in the Design Review process.

“This is not just another one of many disappointing (DPD) director’s decisions,” Eglick declared. “This is a project in which significant adverse impacts were left unaddressed.”

DPD’s Bill Mills countered by saying the Design Review process worked, reducing the building’s bulk and scale.

Hill called the project a “poster child for Design Review,” saying each of the three meetings on the project led to a reduction in its bulk and scale.

But was it enough, and should the process have involved a review of the parking impacts, instead of generating a “Determination of Non-Significance” under the State Environmental Policy Act (SEPA)?

Because it’s “in an urban village and close to ‘frequent transit service’ as defined in code,” the city contended that there was no authority under SEPA for mitigation of any parking effects. That was reinforced by city planner Garry Papers, the first witness called by NERD. He is the official staff person assigned to the project. Among the questions Eglick asked – how did the city determine the area had “frequent transit service”? Papers said he checked the Metro schedules. Asked about another project on the drawing board in the area, the microhousing planned at 3050 Avalon, Eglick asked if it consisted of “aPodments”; Papers said, “It’s … whatever the city’s definition is.”

(That process is still in progress.)

That came into play in the discussion of an 800-foot “area of concern” around a project. (That was later explained as “a reasonable walking distance for someone to park their vehicle and get to their residence or business.”) Papers said someone else had led the “vicinity study.”

The next witness was DPD’s senior transportation planner, John Shaw, who said he had worked with Papers on the “parking analysis that is part of the DPD decision.” He reiterated that DPD has “no authority to mitigate parking” in this area because it’s in an urban village and within a quarter-mile of “frequent transit.” In that analysis, though, he was asked, how were the nearby microhousing proposals considered – for the number of residents, or the number of “units” (if you follow development issues, you know that’s been a point of dispute), with each unit representing up to eight rooms/residents.

During this discussion, Shaw said, “The expectation is that people living in units with no parking … tend to have relatively low auto ownership and wouldn’t be bringing too many cars to the project site.”

The nearby Vue Apartments at 3261 SW Avalon Way, opened within the past year, were on DPD’s radar for the analysis, Shaw also said, explaining they didn’t expect spillover because it was built with about one space for each unit.

Issues subsequently discussed included what percentage of street-parking use was considered in an assessment of capacity – 75%? 85%? – and how the big-picture conclusions were reached about parking in the vicinity of a project. One conclusion of note that was mentioned: Two microhousing buildings in the area, though built without parking, were expected to result in about 40 vehicles added to the area.

Is there a record that Design Review Board members visited the site? DPD reps said no. Is there a reason that they get the “packet” showing photos, renderings, and information from the developer/architect, but don’t get a packet with public comments about the project before their meetings?

Planner Papers said, “I can’t answer to why department policy is what it is.”

Do Design Review Board members review the draft decision – which is usually issued a few weeks after their final meeting – before it’s published? “Typical procedure does not involve circulating a draft to board members.”

If a board member missed a previous meeting on the project – which was established to have happened here (and is not uncommon) – how do they get up to speed on what’s happened previously? he was asked. Papers’ reply acknowledged that no minutes are taken of meetings during the process, and the meetings are not audio- or video-recorded, but, he said, board members are advised to “consult public comments” which can be found in projects’ online files. (Not including the ones that are offered in person at meetings, though, unless the speakers also have sent a written version.)

Eglick asked Papers about e-mail from the project team mentioning that they were “considering adding another level of parking,” which would have added 25 more spaces to the 59 planned for the ~100-unit project. The e-mail, Eglick said, asked if that could be approved as “a minor change” because the project team did not want to go back to the DRB.

The change was never made, but how it was considered and discussed – including a “hallway conversation” and a meeting that didn’t include Papers, though he was the project’s assigned planner – was explored at length.

Another first-day witness was architect and former Seattle Planning Commission member Thomas Eanes, whose testimony included elaboration on the “edge” situation between Avalon and the single-family neighborhood to the north, which, he said, calls for “mitigation” when projects come up, through Design Review and SEPA.

A major part of his testimony included the city’s relatively recent change in calculating projects’ height – which was the result, he said, of a recommendation made while he was on the Planning Commission. That change “has effectively allowed building to be taller on the street than it would have been under the old (method)” – a full story taller, he said, suggesting that some of the building’s units could have been moved to lower levels to eliminate that story. “That’s what design review is for – to approve design departures that mitigate impacts.”

Hill noted that Eanes hadn’t served on a Design Review board, so he wasn’t an “expert” in that process.

“Depends on your definition.”

Another witness who was unquestionably an expert in the process was Vlad Oustimovitch, also a local architect, and a veteran of years of service on the Southwest DRB, including two full terms as well as fill-in appearances, including one of the sessions for the 3078 Avalon project. A miscalculation by the project team in the project’s Floor to Area Ratio (FAR) meant the board got erroneous information, he said. That error involved what amounted to “several units of housing.” Other aspects of the process, said Oustimovitch, “call into question the design that was ultimately approved – had this square footage been known beforehand, there would have been some different discussion, (but) people on the board felt the pressure to allow the maximum density on site.”

Also called by NERD: Area resident Charles Burkhalter, who talked about the parking situation since the 3266 Avalon microhousing project opened. He said he knew that some of the street parkers were from the building, because he had talked with them. “This used to be an area where parking was readily available.” He spoke about how the neighbors had tried to stress to the city “that this is a very unique area, and mitigation is required and warranted, with the unique aspect of a 15-foot alley separating midrise development and single-family houses.” The 1999 neighborhood plan “called out 32nd SW as an area to be protected,” he added.

In Design Review, Burkhalter said, it “seemed more like a process … to check a box off to get this thing through to completion.” Eglick asked him if he recalled the board being told it did not have authority to remove a story from the building; he said he did. Yes, changes were made, but in Burkhalter’s view, it was “as if they took an ice pick to a glacier,” not addressing the community’s concerns, and “that’s why we’re here” (in the appeal hearing).

Burkhalter, a CPA by trade, also spent time making calculations on a whiteboard in the hearing room in a further discussion about area parking and what added development would/could bring; he pointed out that because of the business area to the west, and the stadium to the south, the only area for spillover parking is their single-family neighborhood to the north.

One final topic before the day’s testimony concluded was an exploration of how DPD handled it when the FAR error was discovered. Mills said, “We considered what that might do to the project and how to address that,” but “we would not withdraw the (approval) decision.”

Again, the appellant’s case is being presented first, so the first day was all under their lead; once they’re done, the city and project team will present their side. When both sides are done, and rebuttals too, the Hearing Examiner takes it all under consideration and issues her decision in writing, usually within a few weeks.

If you’re interested in following along, documents in the case are filed here. Also, we’ll likely be posting as-it-happens highlights again today via the WSB Twitter feed.

4 Replies to "West Seattle development: 3078 SW Avalon appeal hearing begins"

  • Thomas M. October 2, 2014 (8:44 pm)

    Has the GEO been addressed? Withdrawal of lateral and subjacent support by an excessively deep excavation will cause buildings to sink on the side away from the failure. Soil movement is no joke, and there is no insurance coverage for it. So, when SHTF and the developer goes into Chapter 11, the residents will be left with the bag, the damage, and will still have nowhere to park. At least make these developers pay experts to actually do a professional job of investigating, testing and reporting on slope hazards and related soil movement.

  • John October 3, 2014 (8:03 am)

    @Thomas M.
    In Seattle, the first thing addressed is the ‘GEO’.

    Even on small residential projects a developer must hire State Licensed geotechnical engineers, who drill, collect, analyze and store core samples. The geo report this generates is presented to the DPD for its own staff of geotechs to verify or dispute these studies at a $250 per hour cost to the developer.

    All reports and DPD’s responses -“Correction Notices”- are available online at DPD under the project’s address.

    The developer must carry insurance, sign a liability agreement and follow the extensive codes covering excavation. Excavation is monitored and inspected by both city inspectors and the independent geotechnical engineers.

    Homeowner’s insurance for ground movement is available just as slide and earthquake coverage, added for an extra premium.

  • Thomas M. October 6, 2014 (6:40 pm)

    Given the law abhors a waste, digging deeper than planned is still a hazard.

    I have done years of heavy coverage and was once an insurance broker (and a Sr. SIU guy). Just because insurance is available does not mean it will be affordable, or that the deductibles will be anything like tolerable.

    Ever try to sell a house with an active soil movement litigation going? Ever heard of a stigma effect on the market price?

    Insurance is not an ATM. Claims take years to develop, and sometimes over a decade to litigate and appeal. All of that takes money, blood, sweat, tears, stomach acid and gray hair. Up and down the chain you go as every party files cross motions for summary judgment, and the loser takes that final order up and everyone waits. Been there and done that. Classing it up or subjecting it to “complex litigation” rules does nothing to accelerate the process or cut costs.

    And who pays for all those advance costs and eats the diminution in property values? Homeowners.

    (Edit SumdAye eYe wil lUrn 2 Spel an tipE, I promis.)

  • John October 7, 2014 (7:10 pm)

    Due Diligence.

    People that choose to buy SFR property adjacent to a an apartment or multi-story zone get a ‘discount’ when they buy, as the market understands that there is diminished value because of the possibility of development.

    That said, there is no law that abhors a waste. It is just much more expensive for the developer to dig, export the soil, and shore-up the sides after getting all of the necessary insurance, geotechnical studies and permits.

    Contrary to the claim, homeowners’ insurance is available and expensive just like earthquake and flood riders with high deductibles.

    It is not any more affordable than the house it insures, the gas at the pump, the car that you drive or living in Seattle. It is the consumers’ decision.

    A homeowners coverage is different than what is described. A homeowners insurance company pays off the claim and then seeks damages from the various responsible parties, like car insurance.

    If one chooses to buy in an area zoned for development, pays less accordingly and there is no development for a period of time, then you have done alright. But to then complain about the expected development when it does come begs belief.

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