Seattle City Attorney Ann Davison’s office is asking the city’s Hearing Examiner to quickly dismiss all six of the appeals currently standing in the way of the Seattle Council’s consideration of the city’s housing growth plan. The appeals, filed in mid-February by residents in exclusive neighborhoods like Hawthorne Hills, Madison Park, and Mount Baker, allege that the city didn’t complete a thorough enough environmental review of the 20-year plan aiming to add 120,000 new homes across the city. A hearing is currently scheduled for late April into early May.
But Davison’s filing, made on behalf of the city’s Office of Planning and Community Development (OPCD) late last week, asserts that the city Hearing Examiner doesn’t have any jurisdiction over the claims raised by any of the appellants, and is required to throw them out.
The motion cites Washington state law that gives cities safe harbor from predatory appeals under the State Environmental Policy Act (SEPA) when it comes to legislation that is intended to allow infill housing. Those laws have been shored up in recent years by the Washington legislature with a clear goal of reducing costs for homebuilding. Senate Bill 5818, approved in 2022, explicitly added local actions cities and counties take to “increase housing capacity, increase housing affordability, and mitigate displacement” to those that are exempt from SEPA appeals under the state Growth Management Act (GMA).
“The Examiner must dismiss all the appeals on a variety of bases. First, the Examiner must dismiss all six appeals under broad statutory exemptions in the GMA and SEPA that prohibit administrative SEPA appeals of nonproject actions that will increase housing capacity, housing affordability or mitigate displacement,” Davison’s filing states, referencing the language added by SB 5818. “Tellingly, almost all the issues raised by Appellants relate to the proposed increases in housing capacity. These are the exact type of appeals that the legislature wants to prohibit.”
The filing also notes that only one of the six groups of appellants — Seattle Symphony bassist Jennifer Godfrey — actually commented during the city’s comment period on the environmental review, which is a prerequisite under state law for the filing of a formal SEPA appeal. That means five of the six appeals could be dismissed without any of the issues raised being directly addressed at all.
Godfrey’s appeal focuses almost entirely on the expected impact of additional housing in Seattle on the health of the endangered Southern Resident killer whale (SRKW) population in Puget Sound, a topic that has come up consistently in public comment throughout the Comprehensive Plan process. Godfrey alleges that the city is disregarding the National Oceanic and Atmospheric Administration’s (NOAA) guidelines around orca recovery, and that the Comprehensive Plan as proposed doesn’t protect large trees that filter pollution from stormwater.
Godfrey is represented in her appeal by Toby Thaler, a former legislative aide to conservative Councilmember Alex Pedersen and a legal advisor to the last appeal of major zoning changes in Seattle, an ultimately unsuccessful challenge of the 2018 Mandatory Housing Affordability (MHA) rezones. Davison’s filing asserts that even though Godfrey is the only appellant with standing, her appeal also lacks merit on the issues.
“These objections take issue with the City’s policy decision to not propose more restrictive tree regulations as part of the One Seattle Proposal. Godfrey would prefer more stringent regulations to protect trees,” Davison’s filing notes of the concerns over orca health. “This policy desire does not serve as a viable claim in a challenge to the adequacy of a FEIS. Further, no Code provision, ordinance, or other Council action grants to the Examiner jurisdiction to review or implement the NOAA SRKW Recovery Guidelines, independently or as part of an adequacy challenge to a FEIS.”
All of this underscores the high bar that will have to be shown for any of the appellants to make headway against the One Seattle Plan, insofar as there were any implicit goals beyond simply delaying the plan. In a prehearing conference on March 10, Hearing Examiner Ryan Vancil explained the narrow scope of his jurisdiction.
“We are here for purposes of administrating a litigation as to the adequacy of the appealed EIS. We’re not here to litigate the legislative concepts or plans for which the EIS has been prepared. The One Seattle Comprehensive Plan Proposed Update is a legislative action over which I don’t have any jurisdiction,” Vancil said. “We’re here to look at the legal adequacy of the EIS only. Thus, the wisdom of upzoning or the increase of affordable housing opportunities or any other legislative concept that may be of concern is not at issue before me in this hearing.”
While any active appeal drags on, the Seattle City Council is prevented from acting on the plan. This week the council’s Select Committee on the Comprehensive Plan discussed plans to adopt a bare bones interim ordinance rezoning residential lots across the city, in compliance with new state requirements to allow up to four units citywide and six units near bus rapid transit and light rail lines. That ordinance is likely to leave key development capacity on the table, despite the fact that a draft ordinance produced as part of the One Seattle plan is ready to go, to say nothing of the more major zoning changes proposed as part of the second phase of the plan.
While the One Seattle Plan remains completely frozen for now, there are signs that a thaw may be coming much more quickly than initially expected.
Ryan Packer has been writing for The Urbanist since 2015, and currently reports full-time as Contributing Editor. Their beats are transportation, land use, public space, traffic safety, and obscure community meetings. Packer has also reported for other regional outlets including Capitol Hill Seattle, BikePortland, Seattle Met, and PubliCola. They live in the Capitol Hill neighborhood of Seattle.
