Legal wrangling continues over Benchview neighborhood land use
DPD says lot boundary adjustments are ok; Neighborhood planning further legal action
When Judge Marianne Spearmann ruled in the Benchview Neighborhood Associaation's (BNA) case against developers in their neighborhood in late July, the neighborhood association thought they had won. But legal wrangling often continues as long as there are arguments to be made and the money holds out. In what the BNA calls a "stunningly narrow position" the city maintains that developer Dan Duffus and associated people can go ahead with their plan to build three homes on what had been two lots. The city's letter from Department of Planning and Development Director Diane Sigamura spells out their position.
Dear Benchview Neighbors:
I wanted to let you know where we are with the proposed lot boundary adjustment (LBA) for the site at the corner of 55th Ave. SW and SW Manning St. I understand the concerns expressed by a number of people regarding the proposal- whether or not the site should be limited to two rather than three houses. I have read the correspondence and Judge Spearman's decisions. In addition, Patrick Downs, Law, and I visited the site on August 16, viewed the house currently under construction, and met with Dick Miller, a neighbor, at the site.
Having visited your neighborhood, and experienced the views and the characteristics of the neighborhood, I do understand your response to the proposal. The Department of Planning and Development, however, cannot "choose" to make a decision based on the desires of the neighborhood, as some have suggested, just as we cannot "choose" to make a decision based on the desires of the developer. We are bound by the adopted Land Use Code and, in this case, the court decisions.
On July 24, 2013, Judge Mariane Spearman decided the following three points:
1. The City's decision that the Historic Lot Exception applies is AFFIRMED.
2. The City's decision that lots 10 and 11 meet the 75/80 rule is REVERSED.
3. The City's decision to classify the application as an LBA is AFFIRMED.
In short, she did not determine that the City erred in its conclusion that the property qualified as three lots, or could be reconfigured as three different lots through the lot boundary adjustment process. The only error the judge found related to the lot area of one of the proposed lots. The judge concluded that one of the lots, which had taken advantage of the 75/80 Rule lot area exception, was too small by 132 square feet. As we understood the decision, the lot boundary adjustment was permissible as long as it was modified so that the parcel has at least 132 square feet of additional lot area.
The attorney for the developer subsequently asked for reconsideration of the decision regarding the lot area required under the 7S/80 Rule, and clarification. On August 22, 2013, Judge Spearman denied the motion for reconsideration.
"Instead, this matter is REMANDED to the City of Seattle
Department of Planning and Developmentfor modification or further proceedings (emphasis added) in conformance with the Court's Memorandum Decision dated July 24, 2013." As we read this decision, the judge contemplated that the lot boundary adjustment, as originally proposed and approved, could be modified to try to provide the lot area that the judge determined was required. too will beposted on the site.
Thank you very much. I hope this helps clarify the current situation.
Diane M. Sugimura
The BNA has made it clear that they will file another lawsuit because they believe the city's interpretation of the judge's ruling is wrong. To accomplish that means they will launch a campaign to help defray costs by using a non-profit entity to collect any donations. The campaign will also inform the public that the city ignored its power to revoke the permit. They expect to make an announcement about that in the near future.
The BNA response to the city takes square aim at what they regard as the confusing issues around the matter. Spokesperson for the BNA David Allen said, "Today the city said, 'We interpret the judge's decision to mean that we can revise the boundary adjustment and give the developer what he wants, three houses and we're really sorry.'
What's amazing is that it's a very narrow interpretation and they ignore that the Judge said 'I send this back to the city to modify or process in a different way.' "
Allen explained that there's a city law that allows them to revoke a permit issued in error. "There are several ways they could protect the neighborhood and one of them is extremely legally strong. If they revoked the permit it would be done."
Dear Mayor McGinn and DPD Director Sugimura,
Thank you for informing us of the status of the situation in the Benchview community.
A. PLEASE EXPLAIN WHY FACTS ARE IGNORED
We are confused how the City's interpretation of the court ruling can be so stunningly narrow and selective in favor of the developer. Could you please explain:
1. Why you do not address the fact that 23.76.034 gives you the clear authority to "revoke a permit that was issued in error"
2. Why the City ignores the fact that the judge DENIED Duffus' request for reconsideration to " remand the LBA to DPD for processing of a revision". The judge explicitly avoided telling the City that it had to process the LBA revision.
3. Why the City ignores half of the judge's Aug. decision. The judge directed that "This matter is remanded to DPD for modification OR FURTHER PROCEEDINGS."
- "Or further proceedings" allows DPD many options, esp. the ability to revoke the LBA (which is consistent w DPD's proposed new rules.)
- You could also determine that the old LBA is dead and can not be revised. There are no city rules that clearly state that you can revise an approved LBA that was later reversed by a higher authority.
- You could and should interpret that the request for revision is a new LBA application (which would only allow 2 houses bc of the Manning house straddling lots 8 and 9)
In short, King County Superior Court provided several reasonable, legal options to ensure the developer only has 2 houses here, thereby following the same basic rules as everyone else. This outcome would be consistent w/ DPD's own recommendation #8 for new small lot development rules.
Why would the City choose the option which hurts the nhood, and would likely be struck down in a lawsuit?
B. WE WILL FILE ANOTHER LUPA
Neighbors want to be upfront with DPD that Benchview will file another LUPA if the city revises the LBA under these selective and shaky legal grounds.
To defray costs and inform Seattle residents of the City's choices in this matter, we will launch a citywide fundraising campaign which will highlight that the City ignored its authority to revoke the erroneous permit under 23.76.034.
C. PLEASE REASSESS YOUR PLAN
Again, the community is simply asking for equitable treatment under the law and that you take the legal route consistent with DPD's recommendation #8 for the new land use rules.
Please reconsider your current plan.
D. REQUEST MAYOR'S RESPONSE
Mr. Mayor, we are still waiting for a reply as to why you said you can not instruct your direct report at DPD to use the power under SMC 23.76.034 to revoke the erroneous permit.
Blockwatch Capt., Benchview
Secretary, Benchview Nhood Assoc.