FINDINGS AND DECISION OF THE HEARING EXAMINER FOR THE CITY OF SEATTLE In the Matter of the Appeals of Hearing Examiner File: W-18-002 ELIZABETH CAMPBELL, ET AL. of adequacy of the EIS issued by the Director, Seattle Of?ce of Housing Introduction The Director of the Seattle Of?ce of Housing (?City?) issued a State Environmental Policy Act Final Environmental Impact Statement for the Fort Lawton Army Reserve Center Development Project ("Project") on April 12, 2018. The EIS has been appealed by the Discovery Park Community Alliance and Elizabeth Campbell ("Appellants"). For purposes of this decision, all section numbers refer to the Seattle Municipal Code or ?Code?) unless otherwise indicated. After considering the evidence in the record and reviewing the site, the Examiner enters the following ?ndings of fact, conclusions and decision on the appeal. Findings of Fact Procedural History 1. On May 15, 2018, a prehearing conference was held regarding this matter. Represented at the conference were the Appellants, Elizabeth Campbell and Discovery Park Community Alliance, represented by Elizabeth Campbell. During the preheating conference the parties identi?ed a schedule for pre-hearing motions, ?nal witness and exhibit lists and exchange of exhibits, and a hearing schedule. Under the pre-hearing order Appellants were required to ?le and serve their ?nal witness list and ?nal exhibit list, no later than 5:00 PM on August 31, 2018. Appellants never ?led a ?nal witness list and final exhibit list. On September 14, 2018 the City ?led a Motion to Exclude Exhibits and Witnesses due to Appellants? failure to ?le required exhibit and witness lists. Appellants ?led a motion for stay of proceedings to allow them time to secure counsel on September 20, 2018. The City?s motion to exclude was granted on September 28, 2018. As a result, Appellants were barred from introducing witnesses or exhibits to the record. Only legal argument remained available to Appellants to proceed with their case. In addition, Appellants? motion W-18-002 FINDINGS AND DECISION Page 2 of?? for stay was granted for thirty-days to secure legal counsel before a new hearing date of October 29, 2018. 6. On October 24, 2018, a prehearing conference was held regarding this matter. The purpose of this second pre-hearing conference was to set a hearing schedule, and determine Appellants? preparedness for hearing. The Appellants failed to appear. 7. Appellants? failure to appear at the second pre-hearing conference, and failure to ?le exhibit and witness lists, were suf?cient grounds for this matter to be dismissed. However, the Appellants were afforded a ?nal opportunity to pursue their case. As there was no opportunity remaining for Appellants to introduce new evidence or testimony, the hearing scheduled for Monday October 29, 2018 was canceled. The parties were directed to address any remaining issues in this matter in the form of legal brie?ng, and were provided a brie?ng schedule. Both parties submitted materials. The Appellants submitted a Notice of Appearance for counsel, a Motion to Reopen Discovery, and a copy of their Notice of Appeal as an Opening Brief. The City ?led a Motion to Strike the Notice of Appeal as an Opening Brief. The Appellants ?led a response to the City?s motion to strike. Motion to Reopen Discovery 8. The cutoff for discovery was set by prehearing order as August 24, 2018. The Appellants moved for a continuance on the basis that they were aware of new information concerning a potential alternative location for the proposal that is the subject of the Environmental Impact Statement under appeal in this matter. Appellants identi?ed no speci?c reason to continue the dates set forth in the prehearing order issued on May 23, 20l8. Appellants had an extensive period in which to address discovery. Nothing in the original motion identi?ed the availability of new information related speci?cally to the EIS appeal. The Appellants? renewed motion through counsel does not identify any reason for granting the motion except a general reference to Appellants? Due Process Rights, which have been fully satis?ed by the opportunity for hearing provided to the Appellants as outlined in the May 23, 2018 pre-hearing order. 9. Appellants? motion also impliedly acts as an untimely motion to reconsider the Hearing Examiner? earlier order concerning Appellants? failure to ?le witness or exhibit lists. The MLu?o +n4?nn. 1190.1 1115 1331.10?: U11 LU, AUIU The Of?ce of Hearing Examiner consistently does not allow exhibits or witnesses to be introduced at hearing that have not been disclosed in an exhibit or witness list when such lists are required in advance of a hearing. If a party attempts to introduce a witness or exhibit as part of its case in chief that was not included on a required witness or exhibit list, then such evidence is excluded at hearing. The Pre-hearing Order for this matter issued on May 23, 2018 required that Appellants ?le their exhibit and witness lists by August 31, 2018. The Pre-hearing Order states: ?Except for purposes of impeachment or rebuttal, only those witnesses and exhibits listed by the parties may be offered at the hearing.? The reason for this W-18-002 FINDINGS AND DECISION Page 3 of 7 restriction is that a party should not be able to submit evidence and testimony by surprise, and thereby put the opposing party at a disadvantage. The Appellant has authored and ?led a Motion to Extend Deadlines on September 4, 2018, a reply brief in support of that same motion on September 12, 2018, a Motion for Reconsideration of the Examiner?s Decision Denying Appellants Motion for Continuance on September 19, 2018, a Response to the City?s Motion to Exclude and Dismiss on September 20, 2018, and a Motion for Stay on September 20, 2018, all of which demonstrate Appellants? capacity to draft documents and work on this case, and/or the ability to have communicated at an earlier date that Appellants did not have the capacity to identify exhibits and witnesses within the time required. By failing to identify exhibits and witnesses in advance of the hearing the Appellants have failed to comply with a Hearing Examiner Order, and put the opposing party at a disadvantage to prepare for the hearing. (footnote omitted) 10. Appellants? renewed request fails to overcome the issues identi?ed in the September 28, 2018 Order, and is an untimely request for reconsideration. Notably, Appellants not only missed the deadline to ?le a witness or exhibit list they never did. Thus, Appellants were not merely late in ?ling required materials, they never made an attempt to correct their error. Appellants? Motion to Reopen Discovery is DENIED. Motion to Strike 1 l. The City ?led a motion to strike the Notice of Appeal as an Opening Brief. There are no strict guidelines concerning what a party must ?le concerning an opening brief to argue its case. Appellants have elected to file their Notice of Appeal, and stand their case on that document. The City?s Motion to Strike is DENIED. Appeal 12. The Appellants? Opening Brief/Notice of Appeal raises a variety of issues including: a. That the FEIS alternatives analysis is inadequate; b. The FEIS fails to disclose and analyze probable signi?cant adverse impacts associated with the Project including those related to: land use, recreation and Open Space, transportation, historic and cultural preservation, biological resources, earth, noise, public services, aesthetics/visual resources, and housing; 0. The City failed to follow BRAC procedures; d. Improper incorporation of the US. Army Corps of Engineers? Environmental Assessment and Findings of No Signi?cant Impact; 6. Inadequate notice; f. Failure to identify and analyze the socioeconomic impacts from the Army?s closure of its Reserve Center; FINDINGS AND DECISION Page 4 of ?7 g. FEIS failure to address the Discovery Park Masterplan; h. The FEIS improperly identi?es and characterizes the Project; and i. The FEIS environmental justice analysis is inadequate. Applicable Law 13adequate, the EIS must present decisionmakers with a ?reasonably thorough discussion of the signi?cant aspects of the probable environmental consequences? of the 1.-. .- a 131.. agcucy ucumu?. Aucquacy 1bjuugcu uy me: run: U1 1843011, :1 biuau, 115ml)": cust- effectiveness standard,? and is determined on a case by case basis, considering r?all of the policy and factual considerations reasonably related to SEPA's terse directives.? Concerned Taxpayers Opposed to Modi?ed Mid-South Sequt'm Bypass v. State, Dept. of Transp, 90 Wn.App. 225, 229, 951 P.2d 812 (1998) (citations omitted). ?In determining whether a particular discussion of environmental factors in an EIS is adequate under the rule of reason, the reviewing court must determine whether the environmental effects of the proposed action are suf?ciently disclosed, discussed, and substantiated by supportive opinion and data.? Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 644, 860 P.2d 390 (1993). In an appeal of an FEIS ?the decision of the governmental agency shall be accorded substantial weight.? RCW 43.210090. ?The requirement that only reasonable alternatives be discussed in an EIS is intended to limit the number of alternatives considered, as well as the detailed analysis required for each alternative. WAC The discussion of alternatives in an EIS need not be exhaustive if the impact statement presents suf?cient information for a reasoned choice of alternatives.? Solid Waste AZternatt?ve Proponents v. Okanogan County, 66 Wn.App. 439, 446, 832 P.2d 503 (1992). SMC Chapter 25.05 details the City?s environmental policies and procedures, and SMC Chapter 25.05 Subchapter IV identi?es requirements for an Environmental Impact Statement. .?The lead agenr?v shall nremare its threshold and environmental impact statement (BIS), if required, at the earliest possible point in the planning and decisionmaking process, when the principal features of a proposal and its environmental impacts can be reasonably identi?ed.? SMC 25.05.055.A. ?Agencies shall make certain that the proposal that is the subject of environmental review is properly de?ned . . . A proposal by a lead agency or applicant may be put forward as an objective, as several alternative means of accomplishing a goal, or as a particular or preferred course of action.? SMC 25.05.060. Pursuant to SMC 25.05.400.C, ?Environmental impact statements shall be concise, clear, and to the point, and shall be supported by the necessary environmental analysis. The FINDINGS AND DECISION Page 5 of?1 purpose of an EIS is best served by short documents containing summaries of, or reference to, technical data and by avoiding excessively detailed and overly technical information.? 21. SMC 25.05.402 calls for the following in EIS preparation: EISs need analyze only the reasonable alternatives and probable adverse environmental impacts that are signi?cant. Bene?cial environmental impacts or other impacts may be discussed. The level of detail shall be commensurate with the importance of the impact, with less important material summarized, consolidated, or referenced. Description of the existing environment and the nature of environmental impacts shall be limited to the affected environment and shall be no longer than is necessary to understand the environmental consequences of the alternatives, including the proposal. SMC 2505402 A, and D. Conclusions 1. The Hearing Examiner has jurisdiction over this appeal pursuant to Chapter 23.76 SMC. Appeals are considered de novo, and the Examiner must give substantial weight to the Director?s decisions. SMC 25.05.680.33. The Appellant bears the burden of proving that the FEIS is legally insuf?cient within the standards set by SEPA. Appellants as a result of their failure to prosecute their case by never attempting to disclose witnesses and exhibits, and failure to appear at a scheduled conference were prohibited from entering evidence into the record, and were thereby restricted to presenting legal arguments for issues that did not require the support of evidence. None of the issues raised by Appellants in their Opening Brief/Notice of Appeal are strictly legal arguments that can be supported without evidence. As such none of Appellants? arguments meet their burden of proof required to prevail in their appeal. 2. An agency need follow only a ?rule of reason? in preparing an EIS, and this rule of reason governs ?both which alternatives the agency must discuss, and the extent to which it must discuss them.? Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (DC. Cir. 1991) (quoting Alaska v. Andrus, 580 F.2d 465, 475 (DC. Cir. 1978)) (citation omitted). SMC 25.05.060.01 indicates ?Agencies shall make certain that the proposal that is the subject of environmental review is properly defined . . . A proposal by a lead agency or applicant may be put forward as an objective, as several alternative means of accomplishing a goal, or as a particular or preferred course of action,? (emphasis added). SMC 25.05.440.D.2 requires that an EIS describe the preferred alternative and alternative courses of action and that ?reasonable alternatives shall include actions that could feasibly attain or approximate a proposal's objectives.? W-18-002 FINDINGS AND DECISION Page 6 of 7 The Appellants? arguments identi?ed other alternative means of achieving the identi?ed objectives, but there is no requirement for an agency preparing an EIS to explore every alternative to the proposal, or even the most reasonable alternative presented by opponents to the proposal. Where the City?s determination is owed substantial deference, it is not adequate for the Appellants to simply suggest another alternative means of achieving the objectives. Appellants introduced no evidence to demonstrate that their suggested alternatives meet the proposal?s objectives as identi?ed by the City. Appellants challenged whether the alternatives analyzed would actually achieve the objectives of the Project. The Appellants did not demonstrate that any of the alternatives identi?ed in the EIS would not achieve the objectives of the proposal. Appellants did not introduce evidence suf?cient to show the probability of any signi?cant adverse impact that might result from the Project including, but not limited to such impacts that might be associated with: land use, recreation and open space, transportation, historic and cultural preservation, biological resources, earth, noise, public services, aesthetics/visual resources, housing, socioeconomics, and environmental justice. Under SEPA the Appellants must meet the high burden of demonstrating the reasonable probability of the signi?cant impact which they allege. This evidentiary standard is not met by the mere statement from Appellants that they believe there will be signi?cant impacts alleged in a Notice of Appeal. Instead, the probability of signi?cant adverse negative impacts must be demonstrated by actual analysis and evidence showing a more than moderate impact on the environment. The Appellants did not demonstrate how or if the issue they raised concerning failure of the City to follow BRAC procedures is related to challenging the adequacy of the FEIS. To the degree Appellants have argued that the City is barred by SEPA from adopting the FEIS and using the Army Corps Environmental Assessment, the appeal is denied, because the City is permitted to take these actions to ful?ll its SEPA procedural requirements. See e. g. SMC 25.05.610. Courts have consistently upheld rules allowing for reuse of existing environmental documents avoid ?wasteful duplication of environmental analysis and to reduce delay.? Thornton Creek Legal Defense and v. City of Seattle, 113 Wn.App. 34, 50, 52 P.3d 522 (2002,. Adoption of an existing EIS is explicitly authorized when ?a preposal is substantially similar to one covered in an existing If an agency adopts existing documents, it must independently assess the suf?ciency of the document, identify the document and state why it is being adopted, make the adopted document readily available, and circulate the statement of adoption. Id. at 51. (citations omitted). W-18-002 FINDINGS AND DECISION Page 7 of 7 Generally, there is no procedural error under SEPA simply because the Environmental Assessment does not include the items of concern to Appellants. Appellants must demonstrate the inadequacy of that document, and they have not done so. 7. The Appellants argued that the SEPA notice was inadequate, but did not support this argument with evidence, and the issue as framed does not clearly implicate a failure to follow notice requirements. 09 5.. I 1-41.. lbbUC F1310 lU Cbb' ll f'cll not clearly identify an inadequacy of the FEIS under SEPA. 9. The Appellants did not demonstrate that the EIS improperly identi?es and characterizes the Project. Decision The Director?s determination that the FEIS is adequate is AFFIRMED. {a I Entered this? day of November, 2018. Ii 7 I ll/vl/x/ Ryamancil I-Iea Examiner Concerning Further Review NOTE: It is the responsibility of the person seeking to appeal a Hearing Examiner decision to consult Code sections and other appropriate sources, to determine applicable rights and responsibilities. BEFORE THE HEARING EXAMINER CITY OF SEATTLE CERTIFICATE OF SERVICE I certify under penalty of perjury under the laws of the State of Washington that on this date I sent true and correct copies of the attached Findings and Decision to each person listed below, or on the attached mailing list, in the matter of Elizabeth Campbell, et al., Hearing Examiner File: 18-002, in the manner indicated. Party Method of Service Appellant Legal Counsel US. First Class Mail, postage prepaid Nathan Arnold [j Inter-of?ce Mail nathan@jjalaw.com E?mail .. [1 Fax lesley@gjalaw.com Hand Delivery Legal Messenger Department I: U.S. First Class Mail, postage prepaid Patrick Downs Inter-of?ce Mail Assistant City Attorney E-mail patrick.downs@seattle.gov Fax . . . Hand Delivery Allcla Relse Alicia.reise@seattle.gov El Legal Messenger Dated: November 29, 2018 02/ Alayna Jt??eon Legal As' lstant