It’s about more than a tree, say West Seattle neighbors whose challenge gets a hearing tomorrow

By Tracy Record
West Seattle Blog editor

It started with a tree.

It’s grown into something more.

Tomorrow, the city Hearing Examiner will hear arguments in the fight over whether a house will replace a 100+-foot tree at 3036 39th SW.

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.

(L-R, Lisa Parriott, Mary Fleck, Jim Borrow, Zelma Zieman, Laura Steinberg)

“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.

44 Replies to "It's about more than a tree, say West Seattle neighbors whose challenge gets a hearing tomorrow"

  • Amy Thomson January 11, 2017 (12:22 pm)

    Many moons ago, when I was fighting an inappropriate  development in our neighborhood, I took a look at the statistics on how many land use appeals win.  The answer was almost none.  The game IS rigged heavily in favor of development.  I wish you luck with your appeal.  We lost our appeal in 2007, but the economy collapsed in 2008.  The developer went bankrupt and the development was never completed.

    • Mike January 11, 2017 (9:02 pm)

      You’d need an army of lawyers to stop a developers army of lawyers and the city officials pockets.

  • anonyme January 11, 2017 (12:34 pm)

    Developers are granted any exception they want.  In the rare cases where they lose, they throw hissy fits lamenting how persecuted they are.  Nonsense.

    One question: is the house that is proposed to replace the tree a second house on the same lot, or will it replace the existing house?  If the former, it’s absurd to squeeze another house onto a 3,100 sq. ft. lot.  If the latter, then there’s no excuse for cutting the tree except for the necessity of caution in the construction process.  I know most developers (including the so-called “green” ones)  prefer the environmentally devastating slash, burn and bulldoze approach, which renders a site inhospitable to plants or trees for decades to come.

    Either way, I see no reason for cutting the tree.

    • WSB January 11, 2017 (12:39 pm)

      Second house. Two stories; the property owner referred to it as “undersized” when he replied to our inquiry for the original June story.

      • Sean January 12, 2017 (6:43 am)

        The three lots are exactly the same size, two of the lots were developed, while the lot in the middle was never developed. It seems that the lot the neighbors house is on is the exact same size as the lot they are saying is too small to build a house on. 

  • Mark Schletty January 11, 2017 (12:58 pm)

    With the change to ward elections the ward Councilmember has more obligations to her ward than before. A part of that is to take more control over what happens in her ward. Lisa Herbold, if she really is supportive,  should direct, or at least pressure, city staff to change their findings. Historically, in ward only elections, the Councilmember only gets reelected if they protect, and deliver for, their ward. When a group of constituents have a reasonable position  on a matter, especially if the Councilmember agrees, the Councilmember should actively demand that the city comply. If this doesn’t happen there is no real reason to have ward elections.

    • Peter January 11, 2017 (3:47 pm)

      I couldn’t disagree more. What your advocating is that
      Herbold take sides based on the opinions of a very small group of constituent, and
      you’re further advocating that she pressure the city to “change their findings”
      without due regard to facts, law, history, or the legal rights of the property
      owner. That’s is not democracy and compatible with rule of law, and further would
      be an abuse of power. No activists, “neighbors,” or city council member should
      ever have the right to deprive a property owner of the legal use of their
      property. The point of district elections is to provide geographic
      representation of the population, not to give NIMBYs the power to take away the
      rights of others.

      • WSRedux January 11, 2017 (8:59 pm)


        While this appeal started with a tree, the crux of the hearing is whether the DCI followed its own rules and City Code in rendering its decision. Remember that the property in question is smaller than allowed for a legal lot under current code and requires a special exception for the developer to build on it. The empty side yard that the DCI is now calling a “legal lot” does not meet the Historic Small Lot Exception criteria of having been called out as a building lot by plat, permit or deed anytime in the 86 years since a permit was issued in 1930 for a home on the south end of the lot. I urge you to go to the link provided in the next to the last paragraph of the Blog article and read the appellant’s brief. It lays out the arguments very clearly. While we should be careful about interfering with what a property owner does with their property, it also is important that everyone plays by the same rules, rules that make up the Municipal Code. If you don’t agree with the code, then work through the City Council to change it.  

    • JanS January 11, 2017 (8:06 pm)

      Mar,k, are you talking about District councilpersons?…

      • Mark Schletty January 12, 2017 (2:46 pm)

        Yup. Ward and district mean the same in different cities. Ward is by far the more common, just not here. Sorry for the confusion.

  • Old Friend January 11, 2017 (1:16 pm)

     At this point the city is just covering their ass if this decision indeed gets reversed and isn’t deemed a legal building site then Mr. Low is going file suit against the city for previous acknowledging such in letter.  Really hope the neighbors prevail on this and I wish them the best. We continue to see the community put at odds with one another over “exception” projects  which is eroding  faith in civic process. 


  • Ron Swanson January 11, 2017 (1:38 pm)

    I wonder how many tree plantings their appeal could’ve paid for in an area that’s not in the middle of the biggest city in the region?

  • ehyi January 11, 2017 (2:02 pm)

    WSB, speaking of trees, did you notice they chopped down the big tree at 35th/Graham, aka Upsilon Frats?

  • Ariana January 11, 2017 (3:03 pm)

    I get it, trees are awesome.  I might be the biggest tree hugging hippie ever, that’s mostly a lie, I just love trees.  Anyway, its just a tree and they grow like weeds here.  We are literally surrounded by millions and millions of trees.  I don’t know about you, but that’s why I live here.  If it is not this tree, it will be another tree, probably one in the suburbs, then adding to traffic congestion and the global warming.  With situations like this, it’s no wonder we are becoming the most expensive city in the country.  I am curious if the same people crying about this tree cry about affordable housing in the next breath.  

    Lets work together, come on come on 

    • WSB January 11, 2017 (3:32 pm)

      Yes, actually, that’s a line I cut in the final edit because it didn’t fit where I had it and I was running out of time to just get this published: The property owner/builder said he feels building a house will help alleviate the current shortage; the neighbors noted that it’s not going to help alleviate the shortage of affordable housing, as any new house in that area is likely to be priced around $900,000. – TR

      • Ariana January 11, 2017 (4:22 pm)

        I grew up in a mountain town in AZ, one of the most expensive zip codes in the state, and it still blows my mind that $900k buys you a postage stamp lot with a cold box of a house.  Ironically I work for a home builder that builds pretty much the same thing.  

        Slightly off topic but here it goes anyway.  

        The city needs to cut the option for developers to pay into a fund for affordable housing.  Instead they would need to have the percentage of required affordable housing go directly into the buildings they are constructing.  Allowing them to pay into a fund only creates and deepens the problem with ghettos and economic divide/disparity/inequality.  This is coming from what some Seattlites would call a “republican” even though I am not, just a little more moderate that the typical folk here.  I just find this “fund” thing blatant and criminal.  Maybe not criminal by the way of actual law, but criminal by way of human decency.  

        It would help traffic.  What it would do that is most important is give people an opportunity to live around people different than them.  I am a big personal responsibility person, we all make our choices, but if we keep shoving people into one area because they aren’t good enough to be around the rest of us, what do we all think will happen.  They have no hope and not much opportunity for it.  I cant wrap my mind around a local government that is so for equality and what not, and yet this is aloud.  Of all the things I feel our local government does wrong, I think this might be the most tragic. 

        • WSB January 11, 2017 (4:27 pm)

          That’s the HALA Mandatory Housing Affordability plan – not related to this at all and still under discussion, with no final action expected for about a year, so do get/stay involved in that!

        • JanS January 11, 2017 (8:24 pm)

          ariana…some do that now. The apartments at Calif Ave. And SW Alaska that houses the new corner Starbucks  say they have apartments for lower income…they are $1300/mo.  That’s for a studio/1 bedroom, I believe. I’m pretty sure that a minimum wage family with children cannot afford that, besides it being too small for a family to begin with. 

          That said, it has nothing to do with the topic at hand. This landowner is NOT building affordable housing for anyone. It’s a high priced neighborhood. How do I feel about the tree? I think it’s stupid to spend anywhere between 50K and 100K to deny this person the right to build, just to save a tree(must be nice to have that kind of money to just throw around.)…I suggest giving the money to a charity where people actually need it. The homeless perhaps. If they want to come see a big tree, they are welcome to come visit the one directly behind my apt. building…it’s not a Ponderosa pine, but it’s huge. And lovely to look at in the summer. 

          To all those wanting Lisa Herbold to intervene because “she is supposed to represent her constituents” she also represents those in the community who are against this. What are you going to do, cut her in half?  She doesn’t just represent this group trying to prevent this man from building on property that he owns. Let’s make that clear.

        • Neighbor January 12, 2017 (7:24 pm)

          Love your comment and agree. This is my worry too that the fund will provide housing (but where?) somewhere else “away” and create a slum.  

  • heyalki January 11, 2017 (3:10 pm)

    The amount of money being spent on this damn tree is so insane! Doesn’t anyone realize that..!?

  • longtime WSer January 11, 2017 (3:32 pm)

    Thank you so much for your coverage, WSB! You took the time to sort through all of the details & provide a digestible summary for the rest of us. Land-use issues are important for everyone out here, and this helps us understand the process, even beyond this particular case. Kudos!

  • Peter January 11, 2017 (3:35 pm)

    This is ridicuolous. What this is really about is “neighbors” trying to dictate what others can and can’t do with their property. It’s always the same nonsense: they want to strip property owners of their rights and the value of their investment in order to force on others their personal aesthetic idea of “neighborhood character” to the exclusion of all other points of view and others’ property rights. In a city suffering a sever housing shortage, they put one non-native tree (according to their own statement) above providing housing and above the property rights of the owner. How do you think Parriott et. al. would react if their “neighbors” started telling them what they can and can’t do with their property? Not well, I imagine. Yet they feel at liberty to do that to others.

  • Doug January 11, 2017 (3:45 pm)

    As WSB said in the headline, this about much more than a tree.

    I agree with Mark. This group needs to ensure Lisa Herbold follows through on this. She represents our interests on the council and should start acting like it.

  • Mark Ahlness January 11, 2017 (4:22 pm)

    For a nice big picture view of this issue, check out  “No Place for Big Trees” by Cass Turnbull. Please read and share.

    • JanS January 11, 2017 (8:34 pm)

      Mark Ahlness…I appreciate  the story you linked to…but remember…trees do not live forever naturally. The next windstorm could very well take this non-native tree down. We just lost a historical tree in California to the wind, weakened, I believe but people, humans , cutting through it to create a  tourist attraction.  For people who love trees, I suggest you get out and walk around your various neighborhoods and parks…there are many exceptional trees out there.  And when they have reached the age that will bring them down naturally, they will come down. City arborists are not plebes…they know what they’re doing when they have to take a beloved tree down…of course, this is just my opinion…we all have them…just look at the posts above and below.

  • WestCake January 11, 2017 (4:44 pm)

    The tax base for the state depends on property taxes so developers get a pass to build. If you want to change the tax system in the state of Washington, support politicians who will impose a state income tax. Then the budget is filled up by other tax revenue. Until that occurs, developers will continue to get preference. 

  • Michael Oxman January 11, 2017 (4:54 pm)

    Here’s the video of the Mayor in July telling Lisa Parriott that he will look into the issue of the tree.

  • WSeattleite January 11, 2017 (6:14 pm)

    The trees in my back yard will be coming down when they get close to being some sort of protected “right for other people to look at and feel good about”.  That will be in about 5 years.    Very very sad and not what I want, but apparently that is the only way to keep busybodies away from imposing their will on other peoples personal property in this Seattle.  Too bad.

    • BD January 11, 2017 (8:46 pm)

      That’s the hidden incentive behind the Significant Tree ordinance, remove your trees before they grow to that classification.

      Oddly, the current case arguments don’t seem to involve the actual tree, so, I suppose, it’s possible the neighbors will win their case and the tree will still be lost. 

      One other incentive, never ever let the city put a tree in the parking strip by your house because once it is there you can never remove it.

  • riggs January 11, 2017 (7:43 pm)

    Seriously folks, its not some sort of special tree. I would rather have a city full of smaller more space appropriate trees than huge trees waiting to crush a house or car.  Learn more and think more about what a developed city means. Better a property be covered with size-appropriate specimens than large forest trees.

  • Mark January 11, 2017 (8:03 pm)

    If the neighbors want to save the tree they should all contribute and buy the property.

    • WSB January 11, 2017 (8:41 pm)

      Mark, that’s mentioned in the story.

  • Fan of WS Blog January 11, 2017 (10:12 pm)

    Thank you WS Blog for covering this issue and for making the complicated issues easier to understand!  West Seattle is so lucky to have you! 

    One quick correction:  the swimming pool was on a different property also determined to be a legal building site based on the Historic Lot Exception.

  • dsa January 11, 2017 (10:56 pm)

    The lesson here is that if you have a tree that may approach significance size on develop able property, cut it down now.  I have one, but it probably is not in the way.

  • Jeff Baker January 12, 2017 (5:32 am)

    The real lesson here is to plant the heck out of your own yard. I had a neighbor behind me that cut down a couple 80+ year old trees. I replaced them with 3 large native trees of my own. Taking the view away and any kind of sun light they would hope 2 have. The birds love it! 

    • heyalki January 12, 2017 (7:30 am)

      So…you just did that in spite of them…to be a jerk. OK.

  • Ex-Westwood Resident January 12, 2017 (10:37 am)

    Neighbors can decide what an owner can do on their property the second they start paying the exorbitant Property Taxes on it!!!!

  • Checkyersource January 12, 2017 (10:41 am)

    When this area was originally platted in 1909, the minimum size building lot was 2500 ft.². If you look at the parcel viewer, and noted the size of each lot on that block, I would bet there are as many lots under 5000 ft.², as lots over 5000 ft.². They range from 2500 to 7500, and everything in between. All the houses there were built displacing trees and hillside- including the house of the complaining neighbor. So apparently it was OK for everyone else to build a house here, destroy nature, and clear trees- but this New project is where this busy neighbor draws the line. The whole historic lot size exception rule is about fairness- and fairness is what is lost in this challenge. And demanding Lisa Herboldt bully planners, clearly demonstrates bully neighbors MO. Pray you never buy a piece of property near a person so fixated on other people’s business. 

  • Jason January 13, 2017 (1:45 pm)

    I purchased a house in the 3700 block of Belvidere 12 years ago. It was a small somewhat rundown house on a nice corner lot with lots of trees. Used to be a small orchard. At any rate, I spent $500k improving the original home with a major addition that resulted in a beautiful house that only increased values of the houses around it. This brings me to the trees. There was one very large pine tree on the side lot that was upending the public sidewalk and ruining the front porch of the house. Out of 6 large trees on the lot, that was the only one we wanted removed. When the tree guys arrived to take down the tree I had neighbors I never met come out of their house, screaming at me, physically threatening me (and I’m a big guy), and calling the police (not sure why). All for this one tree.

    I was floored. This situation seems very similar. It is one tree. This owner has every right to build as the next. I wish people would spend their time and energy focusing on larger issues we have in the city than hurting this one guy. It is disgusting to me that a neighbor would go through any means necessary to block it. It’s the passive aggressiveness of some people that makes me shake my head.

    Build a nice house and plant some new trees.

  • BW January 13, 2017 (4:36 pm)

    Homeless Families – That’s the Issue.  

    Seattle has an affordable housing crisis.  Many families with kids live in cars and shelters around the greater Seattle area.  Many of them have jobs but can’t afford rent or a mortgage.  The tree is beautiful, no doubt.  But if the lot is safe and legal to build, we desperate need the home.  

  • Save Our Silent Giant January 16, 2017 (9:50 pm)

    What I think is tragic is that the elderly person who sold his home had no idea of how valuable his land was.  The developer got the land for free.  Yes, a vacant lot in Seattle for free.   What would he have done with his $175,000 if he had just known the value of his property?

    His realtor didn’t know the value of the land either.  She convinced him to take the cash  (being on the market for one day) before there was even an open house!  

    If only homeowners knew about these tiny side yards being buildable lots, they would be able to realize their real wealth and benefit from all those property taxes they paid over the years.

Sorry, comment time is over.