Grounds for appeals of developments

  • A previous column described some of the changes in Sammamish over the 20 years I’ve lived here, ending with appeals I filed over some development along SE 8th Today’s post takes up where that left off.

When I filed appeals of the Greens of Beaver Crest and a companion development, I knew little of what I was doing. I only knew I wanted some traffic calming on SE 8th, where I lived at the time, and King County said no. (This was before Sammamish incorporated.)

Tom Harmon, a citizen activist and a member of SHOUT, a citizens group, dropped off a manual of sorts about how to pursue appeals. I also began attending the public hearings of another appeal of a development along SE 228th by a resident, James Jordan, to learn about the process and evidentiary rules and requirements.

Still another appeal, over traffic issues that were at the heart of my appeal, had been filed a resident, Craig Dickison, and adjudicated by the King County Hearing Examiner.

The appeals were all denied, although the decision on Dickison’s appeal had been a close call. This decision became the one to follow for the Greens.

Citizens lose

One of the early takeaways from these appeals above was that citizens lose appeals. It was very, very rare that they win.

Under the law, Examiners give great weight or deference to the presumed expertise of those government employees making the decisions to grant approval of developments. Appellants have the burden of proof to demonstrate the decisions were in error.

When I talk about appellants as citizens, I should note that developers have the right to appeal as well. They sometimes do, objecting to conditions imposed by the government’s staff. We’ve seen this most recently in King County’s appeal of Sammamish staff conditions for development of the south leg of the East Lake Sammamish Trail. The County largely prevailed, while a homeowner’s group, SHO, did not in its appeal of the same ELST permit.

We also saw the developer appeal the Chestnut West development permit. Citizens won their appeals; the developer lost.

Ground for appeals

The grounds for appeals have to be based in law. Appealing just because you don’t like the development is groundless and a waste of money and time for everybody.

The two most common grounds for appeal are over the environment and over traffic issues.

Washington and King County have some of the strictest environmental protection laws of any State and County. After incorporation, Sammamish largely adopted the County laws. The State has further strengthened some of the laws through the Department of Ecology, with the trickle-down effect to local levels.

In Washington, again with trickle-down effect to the local level, there are two basic key points over which citizens have the chance to challenge in appeals: Levels of Service (LOS) and Concurrency.

LOS is ranked A through F. LOS A is the best level, with easy traffic flow through intersections. LOS F is Failure, where traffic at intersections is delayed beyond standards measured in minutes of stopped traffic.

Concurrency is traffic volume on any given segment of roadways. These segments are designated between side streets or major roadways. For example, 228th Ave. has several segments throughout its entire length where concurrency is measured. If there is too much traffic volume for the road design, delays occur beyond acceptable levels (as determined by computer analysis and approved by the governmental jurisdiction), the road segment is no longer “concurrent” and it fails.

Failure of LOS or concurrency is enough to cause denial of a project at the staff level, or with the Hearing Examiner if the appellants show staff made an error in calculating these factors.

There is a large escape hatch on environmental and traffic issues, however. It’s called a Determination of Non-Significance (DNS) or a Mitigated Determination of Non-Significance (MDNS).

Variances-R-Us

Staffs have the discretion to grant exceptions to the rules. The layman calls these variances, although in legal terms, variances are for zoning issues and not for environmental or traffic matters. So the complaints that the County (and much later, Sammamish) became Variances-R-Us is a misuse of the term “variances,” but it’s nonetheless an apt description.

Staffs may impose conditions on the developer affecting environmental or traffic rules. For example, these might be allowing buffer averaging along environmentally sensitive areas. They might be requirements for turning lanes for entry into a development. These are just two of many, many conditions that could be imposed by staff as a requirement for granting a permit.

Imposing conditions isn’t unusual. Most developments have unique issues, and exercising no flexibility would mean no development. It’s simply impossible to have Code that anticipates all possible circumstances, so staff discretion is a desirable process.

Traffic becomes particularly problematic.

Traffic from a development can impact roads and intersections well away from the development. For example, in my Greens appeals, traffic from these developments was found to affect the intersection at SR 202 and East Lake Sammamish Parkway, miles away. Traffic from a development can flow in multiple directions. The same Greens traffic flow onto 228th to the North, to the South, across SE 20th to 212th, where it flowed North and South again, North on the future 244th (which at the time hadn’t even been built, but which was in King County’s transportation plan) and so on.

These traffic flows affected intersection LOS and road segment concurrency throughout the computer-modeled traffic distribution.

King County’s Achilles Heel

The computer modeling proved to be the County’s Achilles Heel in the Greens appeal, and yet another one in which I became involved. This third appeal, Cedar Cover, also involved challenging the County’s concurrency modeling (as did the Greens) and also a proposed connecting road through a wetland to SE 8th. Vic Heller was the lead appellant; Craig Dickison and I were co-appellants.

The County’s traffic computer model, the “black box,” became the key target of the Greens appeals. In Cedar Cover, the black box was also challenged as was the decision by the County staff to allow a road through a wetland.

A traffic engineer by the name of Joe Savage cracked the black box for Greens and Cedar Cove. Attorneys Rick Aramburu and Jeff Eustis were my attorneys on Greens; Peter Eglick was the attorney on Cedar Cove.

The Examiner upheld the appeal on Greens, finding that the black box modeling was flawed. (The Examiner denied the environmental appeals, which were really thrown in “just because.”) A key flaw in the County’s modeling showed that traffic on 228th and 212th actually went down after Greens. This defied common sense because at the time, exiting SE 8th from Greens was only possible to 228th; 244th hadn’t then been punched through either to the North or the South.

Additionally, the model showed traffic to go up between 228th and 212th on SE 20th. As I noted in my Closing argument, did this mean people on SE 20th merely went back and forth time and time again? The model showed they didn’t go either North or South on 228th or 212th.

Similarly, Savage, the appellant’s traffic engineer, demonstrated flaws in the Cedar Cover concurrency modeling. Environmental experts showed the County erred in its calculation of the impact to the wetlands for the connecting road to SE 8th.

The County’s Hearing Examiner found for the appellant in Greens. A different Examiner denied the appeal in Cedar Cove. So did the County Council after an appeal to them. But the Superior Court in Pierce County found in favor of the appellant.

After-effect of the appeals

After we successfully challenged the validity of the black box in Greens and Cedar Cove, the King County Council changed the ordinance for ground for appeals to remove the ability of appellants to challenge the black box. This meant the staff could manipulate the modeling to its heart’s content and appellants would never know—and couldn’t challenge and “crack” the box to find out.

After I won the Greens appeal, the County Executive’s office issued a press release in the name of Ron Sims, the executive at the time, denouncing the decision of its own Hearing Examiner and of the appellant (me).

Although I won the Greens appeal, the developer, Murray Franklyn, and its president, Mike Miller, had not been the target of the appeal. Murray Franklyn spent tens of thousands in legal fees and downsized the project (at a further cost of lost revenue) to settle further litigation. But I made it clear to Miller and his attorney, Bob Johns (brother of US Sen. Patty Murray, an environmentalist politician, by the way) that my dispute was with the County, not them.

Ron Sims and Mike Miller would play roles in future events as I moved on to civic service for the forthcoming City of Sammamish.

 

 

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2 Responses to Grounds for appeals of developments

  1. Sean Smith says:

    Great stuff! Love the history. Keep it coming! I can’t believe the county disallows questioning the black box of it’s traffic models. That is antithetical to what this country is all about! I mean really, that is seems like a severe violation of due process.

    Traffic modeling has to be second only to weather modeling IMO. Changes over short periods invalidate models making planning off them of marginal value. Is there really no checks and balances against the assumptions baked into the traffic modeling? I think everyone that drives in Sammamish is feeling the pain of the modeling that is the basis for the new signaling system in Sammamish. And that is supposedly an adaptive system!

    Found some good articles related to all this.
    Google search: sammamish traffic site:news.google.com/newspapers
    Google search: traffic model “king county” site:news.google.com/newspapers

    https://news.google.com/newspapers?nid=1057&dat=19980901&id=qq8kAAAAIBAJ&sjid=Cw8GAAAAIBAJ&pg=1933,442854

    https://news.google.com/newspapers?nid=1057&dat=19981101&id=rK8kAAAAIBAJ&sjid=Cw8GAAAAIBAJ&pg=1335,608149

    I love this quote from the second link:
    “…both consultants found evidence the county’s program for measuring the impact of traffic was skewed in favor of developers- possibly [lea]ding to quicker build-out of [are]as such as the Plateau without [suffi]cient improvements to roads”

    Judge orders traffic test redo, Mar 15, 2000:
    https://news.google.com/newspapers?nid=1057&dat=20000315&id=vq8kAAAAIBAJ&sjid=Cw8GAAAAIBAJ&pg=1827,1954352

    Google search: “king county” concurrency site:news.google.com/newspapers

    I didn’t realize there was a whistle-blower complaint (5 employees) about the KC traffic modeling software?
    Nov 19, 2003:
    https://news.google.com/newspapers?nid=1057&dat=20031119&id=7K8kAAAAIBAJ&sjid=VA4GAAAAIBAJ&pg=1615,178641

    https://news.google.com/newspapers?nid=1057&dat=20040218&id=8q8kAAAAIBAJ&sjid=VA4GAAAAIBAJ&pg=922,1218995

    “The employees – Hossein Barahimi, Jim Ishimaru, Sean Wellander, Jim Davis and their supervisor Ho-Chuan Chen – all work for the county’s Travel Forecasting and Data Management group (TFDM) and helped develop the underlying model used to · process concurrency applications. They allege oar has used arbitrary and inaccurate data that favor development. The allegations are spelled out in e-mails between
    the employees, the Ombudsman’s Office and the county council. When contacted by The Press,
    none of the five employees wanted to be quoted for this story. A King County employee who
    spoke only on the condition of anonymity, however said the TFDM group was formed several
    years ago specifically to address existing problems within the concurrency program, which is supposed
    to work to ensure that roads and other transportation infrastructure keep pace with development.
    Dougherty disputed the reason the group was formed. “Their job is to develop and keep
    updating the underlying model, she said. “If they thought something was not done correctly, they could
    raise concerns to their manage but they do not audit the program or have oversight responsibility.””

    The fact that the whistle-blowers complained about retaliation is of concern. No doubt BIG money is at stake here:

    “The employees also have filed three retaliation complaints, a grievance with their union, a
    civil-rights complaint and a professional-engineer complaint. “On May 4, we filed a retaliation
    complaint because we believe our working conditions have been detrimentally impacted by our whistle-blowing actions. Our job responsibilities have been reassigned,” they wrote.

    They added that their supervisor, Ho-Chuan Chen was given an unwarranted written reprimand from our Division Manager.'”

    Traffic was a campaign issue in the last council elections. The regional models for traffic will need to be as accurate as possible before we can start tackling the serious regional traffic issues Sammamish faces.

    Google search: Barahimi Ishimaru complaint
    http://myplace.frontier.com/~m.costello/sitebuildercontent/sitebuilderfiles/whistleblower_complaint.pdf
    http://myplace.frontier.com/~m.costello/sitebuildercontent/sitebuilderfiles/re_kcdot_dea_investigation.pdf
    http://myplace.frontier.com/~m.costello/sitebuildercontent/sitebuilderfiles/re_questions_retaliation_investigation.pdf
    http://myplace.frontier.com/~m.costello/sitebuildercontent/sitebuilderfiles/re_request_for_an_investigation.pdf

    Looks the complainers got laid off (page 48):
    http://www.pte17.org/units/county/king/professional+technical/contracts/17M_contract.pdf

    And the story goes dark. If anyone knows more about the resolution of the complaint, please post.

  2. Pingback: History of Sammamish resumes today | Sammamish Comment

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