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BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD
CENTRAL PUGET SOUND REGION
STATE OF WASHINGTON

SEATTLE COALITION FOR
AFFORDABILITY, LIVABILITY, AND EQUITY
(SCALE), et al.,

CASE No. 19-3-0011c

Petitioners,
FINAL DECISION AND ORDER
v.
CITY OF SEATTLE,
Respondent.
SYNOPSIS
Petitioners Seattle Coalition for Affordability, Livability, and Equity (SCALE), et al.,
Wallingford Community Council, Duwamish Valley Neighborhood Preservation Coalition,
Seniors United for Neighborhoods, and Fremont Neighborhood Council challenged City of
Seattle Ordinance Nos. 125790 and 125791 implementing a Citywide Mandatory Housing
Affordability (MHA) program. The Growth Management Hearings Board concluded: (1) the
MHA Environmental Impact Statement is adequate and complies with the requirements of
the State Environmental Policy Act, (2) Growth Management Act (GMA) planning goals
guided the development of Seattle’s MHA legislation, (3) Seattle’s MHA legislation complies
with the GMA requirement that the comprehensive plan shall be an internally consistent
document and all elements shall be consistent with the future land use map, (4) Seattle’s
MHA legislation complies with the GMA requirement that any amendment of or revision to
development regulations shall be consistent with and implement the comprehensive plan,
and (5) Seattle’s MHA legislation complies with the GMA requirements for early and
continuous public participation in the development and amendment of comprehensive land
use plans and development regulations implementing such plans.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 1 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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I.

Table of Contents
INTRODUCTION ............................................................................................................ 5

II.

BOARD JURISDICTION ................................................................................................. 6

III. HEARING PROCEDURE................................................................................................ 7
IV. STATE ENVIRONMENTAL POLICY ACT (SEPA) ......................................................... 7
A.

Standard of Review and Applicable Law................................................................... 7

B.

Nonproject Action...................................................................................................... 8

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C.

Discussion and Analysis of Legal Issues .................................................................. 9

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Legal Issue 1.5 ................................................................................................................. 19

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Shadow Impacts ........................................................................................................... 29

Legal Issue 1.1 – Comprehensive Plan consistency .......................................................... 9
Legal Issue 1.2 – Phased review ...................................................................................... 11
Legal Issue 1.3 ................................................................................................................. 11
Legal Issue 1.4 -- Alternatives/segmentation.................................................................... 11
Comprehensive Plan Amendments – Ordinance 125790 ............................................. 12
MHA Rezones– Ordinance 125791 .............................................................................. 13

Legal Issue 1.6 – Impacts outside Urban Villages and Urban Village expansion areas ... 21
Legal Issue 1.7 – Aesthetics............................................................................................. 22
Baseline Aesthetics and Land Use ............................................................................... 23
Height, Bulk, and Scale Impacts ................................................................................... 25
Edge Impacts ................................................................................................................ 27
View Impacts ................................................................................................................ 28

Conclusion .................................................................................................................... 30
Legal Issue 1.8 – Historic resources ................................................................................ 30
Legal Issue 1.9 – Displacement ....................................................................................... 36
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 2 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Legal Issue 1.10 – Public facilities and Services .............................................................. 42
Legal Issue 1.11 – Parks .................................................................................................. 45
Legal Issue 1.12 – Trees .................................................................................................. 45
Legal Issue 1.13 – Cumulative effects .............................................................................. 49
D.
V.

Conclusion – SEPA EIS Adequacy ...................................................................... 49

INCONSISTENCY AND COMPLIANCE WITH GMA PLANNING GOALS ................... 50
A.

Standard of Review and Applicable law .................................................................. 50

B.

Abandoned Issues .................................................................................................. 53

C.

Discussion and Analysis of Legal Issues ................................................................ 53

SCALE ................................................................................................................................. 54
Legal Issue 2.6 – Historical Preservation ......................................................................... 54
Legal Issue 2.14 ............................................................................................................... 54
Issues 2.14 ....................................................................................................................... 56
Duwamish Valley Neighborhood Planning Council (DVNPC) .............................................. 57
Legal Issue 2.9 ................................................................................................................. 57
Legal Issue 2.10 ............................................................................................................... 57
Legal Issue 2.11 ............................................................................................................... 58
Legal Issue 2.12 ............................................................................................................... 58
Legal Issue 2.13 ............................................................................................................... 58
Legal Issue 3.7 ................................................................................................................. 59
Seniors United for Neighborhoods (SUN) ............................................................................ 60
Legal Issue 2.14 ............................................................................................................... 60
Legal Issue 2.5 ................................................................................................................. 61
Fremont Neighborhood Association (FNC) .......................................................................... 62

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 3 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Issue 2.14 ......................................................................................................................... 62
Conclusion – Inconsistency and GMA Planning Goals ..................................................... 63
VI. PUBLIC PARTICIPATION ............................................................................................ 64
A.

Standard of Review and Applicable law .................................................................. 64

B.

Discussion and Analysis of Legal Issues ................................................................ 65

Legal Issue 3.1 ................................................................................................................. 65
Legal Issue 3.2 ................................................................................................................. 67
Legal Issue 3.3 ................................................................................................................. 68
Legal Issue 3.4 ................................................................................................................. 69
Legal Issue 3.6 ................................................................................................................. 69
Legal Issue 3.11 ............................................................................................................... 69
Legal Issue 3.12 ............................................................................................................... 70
Legal Issue 3.5 ................................................................................................................. 71
Legal Issue 3.8 ................................................................................................................. 71
Legal Issue 3.9 ................................................................................................................. 72
C.

Conclusion – Public Participation and Notice.......................................................... 73

VII. FINDINGS OF FACT .................................................................................................... 73
VIII. CONCLUSIONS OF LAW ............................................................................................. 75
A.

SEPA ...................................................................................................................... 75

B.

Inconsistency and GMA Planning Goals ................................................................. 77

C.

Public Participation and Notice ............................................................................... 77

IX. ORDER ......................................................................................................................... 78

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 4 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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I. INTRODUCTION
In October 2016, the City of Seattle adopted the Seattle 2035 Comprehensive Plan
which anticipates growth of 120,000 new residents, 70,000 net new housing units, and
115,000 jobs by 2035. The Comprehensive Plan established an “Urban Village Strategy”
that concentrates most of the anticipated housing and employment growth within Seattle’s 6
Urban Centers and 24 Urban Villages, as compact mixed-use neighborhoods with a variety
of housing types and affordable rent levels, located within a 10-minute walk of light rail and
other very good transit.1
In November 2017, Seattle finalized an Environmental Impact Statement (EIS) on
Citywide Implementation of Mandatory Housing Affordability, which studied the potential for
even greater housing and job growth than planned for in the Seattle 2035 Comprehensive
Plan. This EIS considered an updated projection of total household growth of about 95,000
citywide over 20 years and referred to a hypothetically increased growth scenario of
100,000 new housing units.2 More than 45,000 of Seattle households, or about one in
seven, currently pay more than half of their income on housing, a condition referred to as
severe cost burden. Average rent for a one-bedroom apartment has increased 35 percent
over the last five years and is unaffordable by conventional measures to a worker earning a
$15 minimum wage.3
On March 20, 2019, the City of Seattle enacted two ordinances seeking to provide
more affordable housing for all economic segments of society by increasing overall
production of both market rate housing and subsidized housing:
Ordinance 125790 amends Seattle’s Comprehensive Plan to:


Expand the boundaries of certain urban villages in areas near high frequency
transit, as studied in the Seattle 2035 Comprehensive Plan, and
 Modify certain neighborhood plan policies concerning single family zoning in
urban villages.
Ordinance 125791 amends Seattle’s Land Use Code to:

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

Adopt requirements for developers either to build affordable housing on-site or to
make an in-lieu payment to support the development of rent- and income-

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Seattle 2035 Comprehensive Plan at 13, 22-28; MHA EIS, Appendix G, at G.2.
MHA EIS at 1.4, 1.9, 3.99-3.100, and Appendix G at G.2.; Seattle Comprehensive Plan Update Final EIS
May 5, 2016, Sensitivity Analysis, at 3.1-29, officially noticed under WAC 242-03-630(4).
3 MHA EIS at 1.1.
2

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 5 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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

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restricted housing when constructing new development meeting certain
thresholds,
Make area-wide zoning map changes,
Modify development standards throughout the City of Seattle to provide additional
development capacity, such as increases in maximum building height and floor
area ratio limits, and
Modify certain rezone criteria.

With these two ordinances, Seattle seeks to increase housing development capacity
to serve a broad range of household incomes, mostly in expanded urban villages, and to
create 6,200 net new rent- and income-restricted housing units for households at or below
60 percent of area median income, while distributing the benefits and burdens of growth
equitably. Affordable housing options will increase in urban villages with high access to
social and economic opportunity while moderating development capacity increases in urban
villages with high economic displacement or gentrification risk. Development capacity
increases are limited in areas with environmental constraints.
Between May 13 and June 3, 2019, various Petitioner groups filed appeals with the
Growth Management Hearings Board seeking review of Ordinance Nos. 125790 and
125791 and a Determination of Invalidity of the Ordinances, alleging that Seattle failed to
comply with the State Environmental Policy Act and the Growth Management Act. These
Petitioner groups assert the City failed to adequately consider adverse environmental
consequences resulting from urban village boundary changes and upzones in many areas
of the City of Seattle, including adverse impacts to: traditional single family neighborhoods;
historic landmarks and early Twentieth Century homes clustered in urban villages;
community aesthetics and land use compatibility; trees and open space; public services and
facilities; and gentrification, economic displacement, and segregation trends. Some
Petitioners also raised concerns about the public participation process for Ordinance Nos.
125790 and 125791.
II. BOARD JURISDICTION
The Board finds the Petitions for Review were timely filed pursuant to RCW

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 6 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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36.70A.280 and RCW 36.70A.290. The Board finds the Petitioners have standing to appear
before the Board pursuant to RCW 36.70A.280(2). The Board also finds it has jurisdiction
over the subject matter of the petition pursuant to RCW 36.70A.280 and RCW 36.70A.290.
III. HEARING PROCEDURE
A two-day Hearing on the Merits was held on November 5, and 7, 2019, before the
Growth Management Hearings Board, Central Puget Sound Panel, consisting of Board
members Raymond L. Paolella, Deb Eddy, and Cheryl Pflug. Attorneys David A. Bricklin
and Claudia M. Newman appeared on behalf of Petitioners Seattle Coalition for Affordability,
Livability, and Equity, et al. (SCALE). Attorney G. Lee Raaen appeared on behalf of
Petitioner Wallingford Community Council (Wallingford). Non-attorney, Authorized
Representative Ira B. Appelman appeared on behalf of Petitioner Duwamish Valley
Neighborhood Preservation Coalition (DVNPC). Attorney Judith E. Bendich appeared on
behalf of Petitioner Seniors United for Neighborhoods (SUN). Attorney Toby Thaler
appeared on behalf of Petitioner Fremont Neighborhood Council (Fremont). Attorneys
Jeffrey S. Weber, Tadas A. Kisielius, and Clara Park appeared on behalf of Respondent
City of Seattle (Seattle).
Just prior to the November 5 Hearing on the Merits, SUN filed a motion to: (1) Strike
portions of Seattle’s Prehearing Brief, (2) Supplement the Record, and (3) Prohibit Seattle
from raising an oral motion at the hearing. SUN’s motion is DENIED because it was not
supported by any legal authorities or legal argument. Similarly, Seattle’s November 1, 2019,
request to strike portions of Petitioners’ Reply Briefs is DENIED.
IV.

STATE ENVIRONMENTAL POLICY ACT (SEPA)

A. Standard of Review and Applicable Law
SEPA is an environmental full disclosure law. SEPA's procedural provisions promote
the policy of fully informed decision making by government bodies when undertaking major
actions significantly affecting the quality of the environment.4
RCW 43.21C.030(2)(c) requires the City to prepare a detailed Environmental Impact

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Norway Hill Pres. & Prot. Assn. v. King County Council, 87 Wn.2d 267, 272 (1976).
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 7 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Statement (EIS) on major actions significantly affecting the environment – the EIS analyzes

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in a negligence claim.8 The City’s determination that an EIS is adequate under SEPA shall

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articulates the expectations for environmental review of nonproject actions:

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the environmental impacts of and alternatives to the proposed action.5 The EIS must
present decision makers with a "reasonably thorough discussion of the significant aspects of
the probable environmental consequences" of the proposal so that City officials can make
an informed decision and reasoned choice among alternatives.6
Whether an EIS is adequate is a question of law, subject to review de novo. The
adequacy of an EIS is tested under the “rule of reason” standard.7 The Rule of Reason is in
large part a broad, flexible cost-effectiveness standard, similar to the reasonableness inquiry
be accorded “substantial weight.”9
B. Nonproject Action
Ordinances 125790 and 125791 are “nonproject” actions under WAC 197-11704(2)(b) and WAC 197-11-774.
The lead agency shall have more flexibility in preparing EISs on nonproject
proposals, because there is normally less detailed information available on their
environmental impacts and on any subsequent project proposals.10 WAC 197-11-442(2)

The lead agency shall discuss impacts and alternatives in the level of detail
appropriate to the scope of the nonproject proposal and to the level of planning
for the proposal. Alternatives should be emphasized. In particular, agencies
are encouraged to describe the proposal in terms of alternative means of
accomplishing a stated objective (see WAC 197-11-060(3)). Alternatives
including the proposed action should be analyzed at a roughly comparable
level of detail, sufficient to evaluate their comparative merits (this does not
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WAC 197-11-440.
Barrie v. Kitsap County, 93 Wn.2d 843, 613 P.2d 1148 (1980); Klickitat County Citizens Against Imported
Waste v. Klickitat County, 122 Wn.2d 619, 866 P.2d 1256 (1993). Solid Waste Alternative Proponents v.
Okanogan County, 66 Wn. App. 439, 442, 832 P.2d 503 (1992).
7 Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 632–33, 860 P.2d 390,
398 (1993); Org. to Preserve Agric. Lands [OPAL] v. Adams County, 128 Wn.2d 869, 875, 913 P.2d 793
(1996).
8 Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 633, 860 P.2d 390
(1993); Richard L. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis §
14.01[3] at 14-73 (2016).
9 RCW 43.21C.090.
10 WAC 197-11-442(1).
6

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 8 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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require devoting the same number of pages in an EIS to each alternative).
For non-project proposals such as comprehensive plans and area-wide zoning, the
EIS's discussion of alternatives “shall be limited to a general discussion of the impacts of
alternate proposals for policies contained in such plans, for land use or shoreline
designations, and for implementation measures.”11 A nonproject EIS “defines alternatives
and evaluates environmental effects at a relatively broad level.”12
The EIS should identify subsequent actions that would be undertaken by other
agencies as a result of the nonproject proposal, such as transportation and utility systems. 13
C. Discussion and Analysis of Legal Issues
Legal Issue 1.1 – Comprehensive Plan consistency: Does the EIS fail to include an
adequate summary of the comprehensive plan, neighborhood plans and relevant
development regulations; fail to adequately analyze the alternatives’ consistency or
inconsistency with them; and fail to adequately assess alternatives to the proposed
amendments?
“Relationship to existing land use plans” is an “element of the environment” under
WAC 197-11-444(2)(b)(i).14 WAC 197-11-440(6)(d)(i) provides that the EIS section on
affected environment, significant impacts, and mitigation measures “shall incorporate, when
appropriate: (i) A summary of existing plans (for example: Land use and shoreline plans)
and zoning regulations applicable to the proposal, and how the proposal is consistent and
inconsistent with them.”
SCALE alleges that the EIS does not comply with WAC 197-11-440(6)(d)(i) because:
(a) the EIS on pages 3-107 to 3-108 only lists six policies from the 2035 Comprehensive
Plan, (b) has no reference to neighborhood plan policies, and (c) does not assess
consistency or inconsistency with specific policies.15
Seattle responds that it did provide a summary of particularly relevant comprehensive

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WAC 197-11-442(4).
Cascade Bicycle Club v. Puget Sound Reg'l Council, 175 Wn. App. 494, 514, 306 P.3d 1031, 1040 (2013);
Heritage Baptist Church v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 2 Wn. App. 2d 737, 755, 413 P.3d
590, 600 (2018).
13 WAC 197-11-442(3).
14 See also RCW 43.21C.110(1)(f).
15 SCALE’s Prehearing Brief at 13-15.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 9 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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plan policies, and the EIS specifically noted in Appendix F that (1) the portions of the
proposal concerning changes to single-family zones within urban villages may conflict with
several policies in the neighborhood plan policy section of the Comprehensive Plan; (2)
those specific plan policies are docketed for amendment to remove inconsistencies; and (3)
the potential impacts of those amendments is evaluated in the FEIS.16
The Board notes that WAC 197-11-440(6)(d)(i) specifies a “summary of existing
plans” when it is “appropriate,” as opposed to a detailed analysis – the City has more
flexibility for nonproject proposals, and the EIS discussion “shall be limited to a general
discussion of impacts.”17 Moreover, only significant impacts must be discussed in the EIS.18
SCALE did not present specific evidence that the MHA ordinance would have a significant
impact on the “Relationship to existing land use plans.”
EIS Chapter 3.2 on “Land Use” states that “overall land use patterns in Seattle have
not changed significantly” since publication in 2016 of the Seattle 2035 Comprehensive Plan
EIS.19 The Seattle 2035 Plan renewed the City’s commitment to the Urban Village Strategy.
Challenged Ordinance 125790 recites that Seattle made changes to Neighborhood Plan
policies and the boundaries of urban villages by “strengthening the Urban Village Strategy.”
Several goals and policies from the Seattle 2035 Plan assist in the implementation of MHA:

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

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





Land Use Goal 1 from the Seattle 2035 Plan is to “Achieve a development pattern
consistent with the urban village strategy, concentrating most new housing and
employment in urban centers and villages, while also allowing some infill
development compatible with the established context in areas outside centers and
villages.” (LU G1)
Urban Center, Hub Urban Village, and Residential Urban Village were established
as Future Land Use designations on the Future Land Use Map (FLUM) (Exhibit
3.2–1). Prior to this, the FLUM indicated other use-specific designations (e.g.,
Single Family, Multifamily) in urban centers and urban villages.
Seattle 2035 renewed the policy commitment for urban centers and urban villages
to flourish as compact mixed-use neighborhoods designed to accommodate most
of Seattle’s new jobs and housing. (GS 1.2)
Land use policies for Urban Center and Urban Village designations were updated
to promote a variety of housing types and affordable rent levels. (GS 1.13, LU G2)

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EIS Appendix at F-11.
WAC 197-11-442.
18 WAC 197-11-440(6)(b)(i).
19 EIS at 3.99.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 10 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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

Seattle 2035 considered expansions of certain urban villages with very good
transit service. The Plan includes new land use policies that support aligning
urban village boundaries generally with a 10-minute walk of light rail and other
very good transit. (GS 1.12)20

The EIS says MHA Action Alternatives would modify the Comprehensive Plan’s
Future Land Use map to include more land in certain Hub and Residential Urban Villages
within a 10-minute walk of light rail or very good transit service.21
Taken together, the text and maps in EIS Chapter 3.2 outline various MHA actions
that are intended to achieve consistency with and implement the City’s existing land use
plans and growth strategies. The Board finds and concludes the EIS complies with WAC
197-11-440(6)(d)(i) by providing an adequate summary of existing land use plans, when
appropriate, and how MHA is consistent and inconsistent with them. Issue 1.1 is dismissed.
Legal Issue 1.2 – Phased review: This issue was abandoned and is dismissed.
Legal Issue 1.3: Does the EIS violate WAC 197-11-060(5) (phased review) by failing to
indicate it is implementing prior ordinances adopted without SEPA review as
indicated in the EIS cover letter: “In 2015 and 2016, the City Council unanimously
adopted ordinances that established the framework for MHA.”
Fremont Neighborhood Council (Fremont) refers to this legal issue statement on
phased review in a footnote.22 WAC 197-11-060(5) provides that environmental review may
be phased, indicates when phased review is appropriate or inappropriate, and sets forth
other provisions regarding use of phased review. However, Fremont presents no legal
argument as to phased environmental review of the challenged Ordinances 125790 and
125791. Under WAC 242-03-590(1), failure by a party to brief an issue shall constitute
abandonment of the unbriefed issue. Accordingly, the Board deems Legal Issue 1.3 to have
been abandoned. Legal issue 1.3 is dismissed.
Legal Issue 1.4 -- Alternatives/segmentation: Does the EIS fail to include a reasonable
range of alternatives, by starting with the assumption that some form of the MHA
ordinance would be adopted and not analyzing other reasonable means of
accomplishing the City’s affordable housing goals?
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EIS at 3.100
Id.
22 Fremont’s Prehearing Brief at 16, n.78.
21

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 11 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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The range of alternatives considered in an EIS must be sufficient to permit a
reasoned choice.23 Reasonable alternatives shall include actions that could feasibly attain or
approximate a proposal's objectives, but at a lower environmental cost or decreased level of
environmental degradation.24 For non-project proposals such as comprehensive plans and
area-wide zoning, the EIS's discussion of alternatives “shall be limited to a general
discussion of the impacts of alternate proposals for policies contained in such plans, for land
use or shoreline designations, and for implementation measures.”25 A nonproject EIS
“defines alternatives and evaluates environmental effects at a relatively broad level.” 26
Comprehensive Plan Amendments – Ordinance 125790
Petitioner SCALE alleges that the 2017 EIS for Seattle’s Mandatory Affordable
Housing (MHA) program did not describe the principal features of and alternatives to the
Comprehensive Plan Amendments adopted by Ordinance 125790 on March 18, 2019. 27
SCALE asserts WAC 197-11-440(5) requires a description of the “principal features” of the
proposal.
In 2016, Seattle adopted the Seattle 2035 Comprehensive Plan which anticipates
growth of 120,000 new residents, 70,000 net new housing units, and 115,000 jobs by 2035.
The Comprehensive Plan establishes an “Urban Village Strategy” that concentrates most of
the anticipated housing and employment growth within Seattle’s Urban Centers and Urban
Villages, as compact mixed-use neighborhoods with a variety of housing types and
affordable rent levels, while allowing some compatible infill development outside Urban
Villages.28 The Seattle 2035 Comprehensive Plan EIS (Seattle 2035 EIS) evaluated the
environmental impacts of alternative boundary configurations for Seattle’s 6 Urban Centers
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Solid Waste Alternative Proponents (SWAP) v. Okanogan County, 66 Wn. App. 439, 444, 832 P.2d 503
(1992); see also Methow Vly. Citizens Coun. v. Regional Forester, 833 F.2d 810, 815 (9th Cir. 1987), rev'd on
other grounds sub nom. Robertson v. Methow Vly. Citizens Coun., 490 U.S. 332, 104 L. Ed. 2d 351, 109 S. Ct.
1835 (1989).
24 WAC 197-11-440(5)(b).
25 WAC 197-11-442(4).
26 Cascade Bicycle Club v. Puget Sound Reg'l Council, 175 Wn. App. 494, 514, 306 P.3d 1031, 1040 (2013);
Heritage Baptist Church v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 2 Wn. App. 2d 737, 755, 413 P.3d
590, 600 (2018).
27 SCALE’s Prehearing Brief at 40 (Sep. 18, 2019).
28 Seattle 2035 Comprehensive Plan at 22-28; MHA EIS at 3.99 and Appendix G, at G.2.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 12 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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and 24 Urban Villages, located within a 10-minute walk of light rail and other very good

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need to be modified because they conflict with MHA-proposed changes to single family

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transit.29 The 2035 EIS evaluated the environmental impacts of alternative urban village
expansion scenarios, plus no-change alternatives, which would convert lower-intensity land
uses to higher-intensity land uses.30 The Seattle 2035 EIS was formally adopted into the
MHA EIS.31 In order to promote efficient environmental review, WAC 197-11-600 allows
such adoptions of existing SEPA documents.
The MHA EIS relies upon and incorporates information from the Seattle 2035 EIS.
The MHA EIS states that Comprehensive Plan policies for individual urban villages may
zones within urban villages.32 The MHA EIS includes, for all action alternatives, detailed
maps showing the proposed changes to single-family-zoned areas within various urban
villages and proposed urban village expansions.33 This information satisfies the rule of
reason because it provided full disclosure to City officials and the public of the contemplated
land use changes to single-family-zoned areas in existing and expanded urban villages.
Ultimately, the City Council adopted revisions to Comprehensive Plan policy
language and future land use maps that enabled the MHA changes to single-family-zoned
areas within urban villages, consistent with the EIS disclosures. The Board finds and
concludes that the EIS adequately describes the principal features of and alternatives to the
Comprehensive Plan Amendments adopted by Ordinance 125790.
MHA Rezones– Ordinance 125791
SCALE, Fremont, and Wallingford allege the EIS is inadequate because Seattle
failed to analyze an adequate range of reasonable alternatives. 34 This is a question of law
that the Board reviews de novo.
The MHA program seeks to increase capacity for multifamily residential and
commercial development in certain areas of Seattle through several related actions:

29

IN 519, Seattle 2035 Comprehensive Plan EIS at 2-15 (May 4, 2015).
Id. at 2-15 to 2-33.
31 MHA EIS at 1.3 and 2.4.
32 EIS, App. F at F.11.
33 EIS, App. H.
34 SCALE’s Prehearing Brief at 40-43; Fremont’s Prehearing Brief at 16; Wallingford’s Prehearing Brief at 2-9.
30

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 13 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Adopt requirements in the Land Use Code (SMC Title 23) for developers either to
build affordable housing on-site or to make an in-lieu payment to support the
development of rent- and income-restricted housing when constructing new
development meeting certain thresholds.
Modify development standards in the Land Use Code to provide additional
development capacity, such as increases in maximum height and floor area ratio
(FAR) limits.
Make area-wide zoning map changes.
Expand the boundaries of certain urban villages on the Comprehensive Plan’s
Future Land Use Map (FLUM) near high-frequency transit, as studied in the
Seattle 2035 Comprehensive Plan.
Modify certain rezone criteria in the Land Use Code and policies in the
Neighborhood Plans section of the Comprehensive Plan, concerning single family
zoning in urban villages.35

Under the MHA program EIS, Seattle’s stated objectives are to:
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Address the pressing need for housing affordable and available to a broad range
of households.
Increase overall production of housing to help meet current and projected high
demand.
Leverage development to create at least 6,200 net new rent- and incomerestricted housing units serving households at 60 percent of the area median
income (AMI) in the study area over a 20-year period.
Distribute the benefits and burdens of growth equitably.36

In essence, Seattle has two overarching goals under MHA to: (1) increase overall
production of housing available to a broad range of households (hereinafter “BroadIncome-Range Housing” or “Market Rate Housing”), and (2) create 6,200 net new rentand income-restricted housing units serving households at 60 percent of AMI
(hereinafter “Income-Restricted Housing” or “Subsidized Housing”), while distributing the
benefits and burdens of growth equitably.
SCALE initially focuses its arguments regarding reasonable alternatives on just the
City’s second goal to create more Income-Restricted Housing:

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EIS at 1.2.
EIS at 1.3. The majority of MHA rent-restricted affordable units will serve the 60% AMI level, although some
small studio units will serve 40% AMI, and some home-ownership units may serve households up to the 80%
AMI level.
36

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 14 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 Here, the EIS considers three action alternatives to the MHA Legislation
(Ordinance 125791) that are so similar that real choices are not
presented. All rely on upzones and Urban Village expansions to create a
pot of money to help fund construction of affordable housing for the
poorest households in the city (those unable to pay for market rate
housing). The variations among the alternatives are minor, shifting
rezone areas slightly among the various Urban Villages. IN 517 (EIS at
1.6-1.8).37

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Seattle responds:
The alternatives evaluated in the FEIS differ in the intensity and location
of development capacity increases and the pattern and amounts of
housing growth across the city that could result. There are also
differences between the alternatives in their approach to the size of
urban village expansions. . . . Exhibits 2–9, 2-10, and 2–11 of the FEIS
describe the different approaches to development capacity increases
and urban village expansions in narrative form; Exhibits 2–12 through 2–
15 of the FEIS demonstrate graphically the differences between the
alternatives in terms of the overall amounts of development capacity
increases of different intensity; and Exhibits 3.3–23, 3.3–25, and 3.3–27
of the FEIS show the differences between the alternatives in terms of the
locations of development capacity increases of different intensities.38

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In reviewing the environmental record, the Board notes that the EIS focuses on
Seattle’s objective to increase both subsidized and market-rate housing. The EIS discloses
land use impacts that the action alternatives would have in Urban Village expansion areas,
plus mitigation measures, at pages 3.117—3.158. As to Aesthetics, the EIS discloses
impacts using maps at EIS Exhibits 3.3-23, 3.3-25, and 3.3-27 to show variations in M-suffix
intensity zone changes for each alternative, while the maps at Exhibits 3.3-24, 3.3-26, and
3.3-28 show the varied distribution of height limit changes by alternative.39
SCALE further argues that Seattle failed to analyze the following three alternatives
that achieve Seattle’s objectives with fewer adverse impacts (i.e., no upzones):
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Higher in lieu fees or a tiered system of in lieu fees (higher fees for units
constructed further away) to create incentives for more on-site units and
thereby increase integration and social equity

SCALE’s Prehearing Brief at 40-41.
Seattle’s Prehearing Brief at 37 (October 16, 2019).
39 EIS at 3.194–3.205.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 15 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Higher affordability requirements (to increase both on-site and off-site
units)
Affordability requirements imposed without upzones (e.g., inclusionary
zoning and/or linkage fees) to provide more affordable housing without the
adverse impact of the upzones.40

SCALE’s witness, David Levitus, testified before the Seattle Hearing Examiner that
Seattle failed to consider these three alternatives -- Levitus asserted they are “reasonable
alternatives” to accomplish Seattle’s stated objectives without the negative impacts of
upzoning such as segregation and displacement.41
The Board now examines whether evidence in the record supports Mr. Levitus’
opinion that Seattle failed to analyze “reasonable alternatives” to achieve Seattle’s housing
objectives without the adverse impacts of upzones. The verbatim transcript of Levitus’
Hearing Examiner testimony contains much discussion of how linkage fees, in-lieu fees, and
inclusionary zoning can increase the supply of affordable (subsidized) units for incomerestricted or low-income households.42
While he testified at length on Seattle’s goal to create more Income-Restricted
Housing (i.e., Subsidized Housing), Levitus presented no analysis on how to achieve
Seattle’s twin goal to increase Broad-Income-Range Housing (i.e., Market-Rate Housing).
Mr. Levitus did not prepare any written report on Seattle’s MHA program, and he did no
economic analysis of the Seattle market. Rather, in oral testimony he extrapolated from
affordable housing experience in Los Angeles, Montgomery County, MD, and Fairfax, VA.43
In contrast, Seattle obtained an independent economic analysis of the Seattle
housing market from a consultant with expertise in development economics. Seattle
contracted with Community Attributes, Inc. (CAI) to prepare a report evaluating development
feasibility based on increased zoning capacity (or upzones) for areas of Seattle outside of
the Downtown and South Lake Union neighborhoods. This feasibility analysis evaluated
project viability across an array of 23 realistic development prototypes that were
SCALE’s Prehearing Brief at 41.
Index 385 (Tr. vol. 7, pp. 56–63, July 24, 2018 (Levitus)).
42 Id. at 60, 66-67, 77, and 74-75.
43 Id. at 73-74, 156. Mr. Levitus has a bachelor’s degree in history and economics and a PhD in history but no
professional experience in economics; he is the director of a social justice advocacy nonprofit group. Id. at 5253.
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41

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 16 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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representative of Seattle’s market conditions and zones.44 The CAI report stated that there

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Housing market analyses determined that MHA performance requirements between

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are a variety of complex market conditions in Seattle’s neighborhoods but in general,
increased development costs will have the effect of reducing developer interest or
increasing rents for market-rate units.45
The EIS states that Seattle initially considered an alternative “with significantly
increased MHA payment and performance requirements” but ultimately excluded it from
further EIS analysis because “an alternative with this approach would not plausibly achieve
the proposed objectives.”46

5% and 7% were amounts that could be supported without negatively impacting
development feasibility; however, based on CAI’s Technical Memorandum, MHA
performance requirements of 25% would render most development prototypes in strong and
moderately strong Seattle markets “infeasible given prevailing land prices.”47 An “alternative
with markedly increased MHA amounts would be likely to negatively affect real estate
markets and undermine economic feasibility for many projects, in turn depressing the
housing market and limiting the affordable units generated.”48
The EIS says no other viable alternatives were identified by commenters that could
meet the key project objective to increase zoning capacity, since MHA requirements are
“inextricably tied to granting additional development capacity under the definition of the
proposal and its objectives.”49
Based on this evidence, Seattle argues that SCALE’s proposed alternative to
increase fees and affordability requirements, without upzones, fails to achieve the objective
of increasing overall housing supply.50 Seattle contends upzones and density increases are
necessary to increase development capacity.

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Index 741 (Technical Memorandum, Community Attributes Inc. (Nov. 29, 2016).
Id. at 4.
46 EIS at 2.65.
47 EIS at 2.64-2.65.
48 Id.
49 EIS at 4.12.
50 Seattle’s Prehearing Brief at 45-49.
45

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 17 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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SCALE failed to adduce evidence to show that significantly higher fees and
affordability requirements (without upzones) could achieve Seattle’s objective of increasing
overall housing supply across a broad range of both market-rate and income-restricted
housing. In contrast, Seattle pointed to evidence that significantly higher fees/requirements
would undermine feasibility and would not achieve the Broad-Income-Range Housing
objective. As to Seattle’s objective to increase overall housing supply across a broad
income range, SCALE’s witness Levitus acknowledged on cross examination that linkage
fees would be unlikely to generate more overall production of housing.51
Regarding SCALE’s argument that significantly higher fees and affordability
requirements could achieve Seattle’s key housing objectives without the adverse
socioeconomic impacts of upzones such as housing segregation, evidence in the record
shows that payment-funded units are not likely to be concentrated in low-cost areas, but
rather will be located in a way that advances social equity goals. Seattle has a 35-year
track record of affordable housing investments in high land-cost areas and also in areas that
have a high risk of displacement with high access to opportunity.52 Going forward, Seattle
has social equity policies to encourage developers to locate affordable housing in high landcost areas such as the recent addition of almost 250 affordable units in the high land-cost
Roosevelt neighborhood.53
Under the SEPA rules, “[r]easonable alternatives shall include actions that could
feasibly attain or approximate a proposal’s objectives, but at a lower environmental cost
or decreased level of environmental degradation.”54 SEPA does not require the City to
evaluate alternatives that would not achieve the City’s objectives.55
After considering the parties’ legal arguments regarding alternatives, together with
evidence in the record, and applying the Rule of Reason to test the adequacy of this
nonproject EIS, the Board finds and concludes as follows:

51

Index 385 (Tr. vol. 7, pp. 157–158, July 24, 2018 (Levitus)).
Index 441 (Tr. vol. 15, at 66, Aug. 24, 2018 (Alvarado)); see also Index 787 (Office of Housing Annual
Investment Report), Maps F and G (showing that 2017 investments were concentrated in areas with high
displacement risk and high access to opportunity).
53 Index 441 (Tr. vol. 15, at 74-76, Aug. 24, 2018 (Alvarado)).
54 WAC 197-11-440(5)(b); SMC 25.05.440.D.2.
55 EIS at 412.
52

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 18 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 1. The alternatives evaluated in the EIS differ in the intensity and location of
development capacity increases, the pattern and amounts of housing growth, and
the size of urban village expansions.
2. The EIS analyzed a reasonable range of alternative actions that could feasibly
attain or approximate Seattle’s objectives to: increase overall production of
housing available to a broad range of households, and create 6,200 net new rentand income-restricted housing units serving households at 60 percent of AMI,
while distributing the benefits and burdens of growth equitably.
3. SEPA does not require Seattle to evaluate alternatives that would not achieve the
City’s objectives.
4. Seattle reasonably chose not to analyze SCALE’s proposals for higher in lieu fees
and higher affordability requirements without upzones because substantial
evidence in the record showed that higher fees or higher affordability
requirements, without upzones, would not feasibly attain or approximate Seattle’s
objective to increase overall production of both market-rate housing and
subsidized income-restricted housing.
5. SCALE’s suggested EIS alternatives were not reasonable for this nonproject EIS.
6. Seattle’s EIS evaluated an adequate range of alternatives that satisfy the Rule of
Reason under SEPA.
7. Legal Issue 1.4 is dismissed.

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Legal Issue 1.5: Is the City of Seattle excused from SEPA requirements to consider
alternatives to the proposed action (Ordinance 125791) in its Final Environmental
Impact Statement based on the City’s claim that the legislation was “formally
proposed” based on the City’s interpretation of WAC 197-11-442(4) (SMC
25.05.442.D)?
Ordinance 125791 enacted area-wide zoning changes and modified development
standards throughout the City of Seattle, and the ordinance included 54 maps showing
rezoned areas. Zoning ordinances are nonproject actions.56
Wallingford Community Council (Wallingford) alleges the law requires that
consideration of meaningful alternatives to a proposed action be part of environmental
review under SEPA. Wallingford asserts Seattle admits it did not consider alternatives to
MHA for reaching the City’s claimed objectives of affordable housing but instead, according
to Wallingford, the City did not consider other alternatives based on the “alternatives which
have been formally proposed” language in WAC 197-11-442(4). Wallingford did not,

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WAC 197-11-704(2)(b)(ii).

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 19 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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however, point to any evidence showing that there were other, un-analyzed alternatives that
fulfill one of Seattle’s key objectives, i.e., to increase development capacity across a broad
range of household incomes, both subsidized and market-rate housing.
The EIS indicates that Seattle did detailed analysis of three action alternatives and
the no action alternative. After 19 days of testimony, the Seattle Hearing Examiner
concluded that “[t]he range of alternatives considered by the FEIS satisfies the rule of
reason in relation to the City’s stated objectives.”57
Under SEPA Rules for nonproject proposals, the EIS content may be limited to a
discussion of alternatives which have been formally proposed or which are, while not
formally proposed, reasonably related to the proposed action.58
Under Resolutions 31612 and 31622, Seattle chose to limit affordable housing
initiatives to those that provide additional development capacity and create at least 6,000
net new rent- and income-restricted housing units serving households at 60 percent of AMI
over ten years. Resolution 31612 was formally adopted by a unanimous City Council and
approved on by Mayor Murray on November 17, 2015.59 Resolution 31622 was formally
adopted by a unanimous City Council and approved on by Mayor Murray on October 16,
2015.60
Applying the Rule of Reason to test the adequacy of this nonproject EIS, the Board
finds and concludes as follows:
1. The EIS analyzed three action alternatives and the no action alternative, which
allowed Seattle’s legislative body to make a reasoned choice among alternatives
that fulfill Seattle’s affordable housing objectives.
2. Seattle City Council Resolutions 31612 and 31622 formally proposed legislative
changes to provide additional development capacity and create at least 6,000 net
new rent- and income-restricted housing units serving households at or below 60
percent of AMI over ten years.
3. Under WAC 197-11-442(4), Seattle was allowed to limit EIS content to a
discussion of alternatives which have been formally proposed or which are, while
not formally proposed, reasonably related to the proposed action.
57

IN 515, Revised Findings and Decision of the Hearing Examiner for the City of Seattle at 24 of 38 (Dec. 6,
2018).
58 WAC 197-11-442(4).
59 IN 780.
60 IN 779.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 20 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
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Fax: 360-586-2253

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4. Seattle’s EIS evaluated an adequate range of alternatives that satisfy the Rule of
Reason under SEPA.
5. Legal Issue 1.5 is dismissed.
Legal Issue 1.6 – Impacts outside Urban Villages and Urban Village expansion areas:
Does the EIS fail to adequately address impacts caused by the text amendments (and
alternatives and mitigation related to those text amendments), focusing instead on
impacts caused by the map amendments.
SCALE argues the MHA EIS does not adequately assess and disclose impacts that
will be caused by the text amendments as opposed to the map amendments and as

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examples, SCALE states all parcels in the City previously zoned NC1-30 were changed to

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disclosed impacts outside of urban villages relating to transportation and air quality,

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NC1-40, increasing height limits and density, and similarly all NC1-40 zones were changed
to NC1-55. According to SCALE, the EIS does not adequately disclose impacts from text
amendments affecting all commercial and multi-family zoned areas throughout the entire
City of Seattle.61
Seattle responds that the EIS states that the study area includes not only areas in
existing urban villages, but also multi-family and commercial-zoned areas that are outside of
urban villages and expansion areas. Seattle points to EIS Ex. 2-1 showing the study area,
urban villages, and areas outside of urban villages. Finally, Seattle asserts the EIS

greenhouse gas emissions, public services and utilities, school attendance zones, and
critical areas.62
In reviewing SCALE’s prehearing brief, the Board notes SCALE did not identify any
specific evidence demonstrating that the text amendments caused significant probable
environmental impacts to areas outside of urban villages. For example, SCALE did not point
to any evidence that a zoning change increasing building height from 30 feet to 40 feet
causes a probable significant environmental impact. Elements of the environment that are
not significantly affected need not be discussed in the EIS.63
Upon reviewing the EIS, the Board finds it discloses impacts resulting from increased
building heights such as greater visual bulk, reduction in the amount of light and air at
SCALE’s Prehearing Brief at 52.
Seattle’s Prehearing Brief at 59-60.
63 WAC 197-11-440(6)(a).
61
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 21 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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ground level, and shading effects that could occur at transitions between urban villages and
single family areas.64 The EIS discloses edge impacts that could occur in transitions to
single family locations outside the zone change such as noise, increased pedestrian and
vehicle traffic, competition for on-street parking, and changes to building form.65 The EIS as
a whole discloses various impacts affecting neighborhoods in the study area, both within
and outside Urban Villages, although such impacts are described more generally and not
tied to specific locations nor attributed to map amendments versus text amendments. This
approach is consistent with SEPA’s prescription for a “general discussion of the impacts” in
a nonproject EIS.66
Applying the Rule of Reason to test the adequacy of this nonproject EIS, and in
accordance with WAC 197-11-442, the Board finds and concludes that the MHA EIS
contained a reasonably thorough discussion and adequately disclosed to City decision
makers and to the public the environmental impacts caused by text amendments outside
Urban Villages and Urban Village expansion areas.
Legal Issue 1.7 – Aesthetics: Does the EIS fail to adequately describe the existing
environment in each of the individual neighborhoods with respect to aesthetics and
land use and fail to take the required “hard look” at the aesthetic impacts of the MHA
proposal? This includes height, bulk, and scale impacts, shadow impacts, scenic and
other view impacts, noise and edge effects.
SEPA has been described as an environmental full disclosure law. The fundamental
purpose of an EIS is to inform government decision makers and the public about the
environmental consequences of proposed action alternatives in order to promote wellreasoned, environmentally protective decisions.
For nonproject proposals such as comprehensive plans and area-wide zoning, the
EIS's discussion of alternatives “shall be limited to a general discussion of the impacts of
alternate proposals for policies contained in such plans, for land use or shoreline
designations, and for implementation measures.”67 A nonproject EIS “defines alternatives

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EIS at 3.186-3.187.
EIS at 3.117.
66 WAC 197-11-442(4).
67 WAC 197-11-442(4).
65

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 22 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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and evaluates environmental effects at a relatively broad level.”68
The Board now reviews the EIS adequacy by applying the rule of Reason to the
following sub-issues raised by SCALE:
Baseline Aesthetics and Land Use
SCALE asserts the EIS fails, as a matter of law, to meet the requirements of SEPA
because the description of the baselines for aesthetics and land use are incomplete and
inaccurate. According to SCALE, the MHA EIS: (1) does not include a description of the
actual character, architectural aesthetic, or height/bulk/scale of the neighborhoods that are
affected by the MHA Proposal; (2) does not describe the locations of light rail stations, the
existing street networks, or the location of green streets in each neighborhood; (3) has no
discussion of the location and character of specific view sheds in each neighborhood; and
(4) has description of specific buildings and areas of visual interest, scenic routes, shadows
on specific public parks, or historic landmarks in each of the neighborhoods.69
Seattle responds that the description of existing conditions relies on a combination of
the “Affected Environment” sections in EIS Chapters 3.2 and 3.3 (respectively titled Land
Use and Aesthetics), neighborhood-specific paragraphs, and the very specific, city-wide
analysis of existing conditions that was recently completed with the environmental review for
Seattle 2035 that is expressly incorporated into the EIS.70
SEPA promotes efficiency in government decisions affecting the environment by
allowing agencies to incorporate and use existing SEPA documents.71 WAC 197-11-442(1)
says the lead agency shall have more flexibility in preparing EISs on nonproject proposals,
because there is normally less detailed information available on their environmental impacts
and on any subsequent project proposals.
Chapters 3.2 and 3.3 of the EIS discuss the “Affected Environment” under the

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Cascade Bicycle Club v. Puget Sound Reg'l Council, 175 Wn. App. 494, 514, 306 P.3d 1031, 1040 (2013);
Heritage Baptist Church v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 2 Wn. App. 2d 737, 755, 413 P.3d
590, 600 (2018).
69 SCALE’S Prehearing Brief at 16-17.
70 Seattle’s Prehearing Brief at 63.
71 WAC 197-11-600.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 23 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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respective categories of Land Use and Aesthetics.72
The Land Use Chapter relies primarily on the background information contained in
the Seattle 2035 Comprehensive Plan (adopted in October 2016) because while some
changes to existing land use have likely occurred since publication of the Comprehensive
Plan EIS, the MHA EIS states “overall land use patterns in Seattle have not changed
significantly” from 2016 to the 2017 MHA EIS issuance.73 The Seattle 2035 Plan’s Growth
Strategy Element seeks to accommodate growth by guiding new development to Urban
Villages so as to maximize efficient use of infrastructure and services. The MHA EIS
implements several Comprehensive Plan goals and policies, including Seattle’s Urban
Village Strategy. Urban Village boundaries are shown on EIS Exhibit 3.2-1 “Future Land
Use Map (FLUM),” and the MHA study area with Urban Village boundaries are shown on
Exhibit 2-1 in EIS Chapter 2. The EIS Land Use Chapter discusses Seattle’s six (6)
designated Urban Centers, six (6) Hub Urban Villages, 18 Residential Urban Villages, other
land use designations, and existing land use categories (mapped on Exhibit 3.2-2).
The Aesthetics Chapter 3.3, Affected Environment section, discloses that height,
density, scale, and character of development vary considerably across Seattle, and zoning
regulations limit height, density, floor area ratio74 (FAR), lot coverage, and minimum
setbacks. Exhibit 3.3-1 is a baseline map showing citywide allowed building heights,
including for the 6 Urban Centers and the 24 Urban Villages.75 The varying relationships
between building height and FAR are discussed for different neighborhoods as a shorthand
for “bulkiness” of a building. Physical forms vary across the 3,000 acre MHA study area, and
the EIS discusses common built forms as a baseline for analyzing MHA’s aesthetic impacts.
Existing condition urban forms include: Established Single Family Housing, New Infill Single
Family Housing, Lowrise Multifamily Infill Housing, and Mixed Use Commercial Corridors.76
Seattle has a three tiered Design Review Program to evaluate the appearance of new

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EIS at 3.99-3.108 and 3.159-3.169.
Id. at 3.99.
74 Floor Area Ratio (FAR) = gross floor area of a building divided by the total area of the site. Seattle 2035
Comprehensive Plan at 194.
75 EIS at 3.161.
76 Id. at 3.163-3.164.
73

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 24 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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buildings and their relationship to adjacent sites.77
Finally, the EIS discloses existing Comprehensive Plan goals and policies plus
regulations for the protection of public views of important landmarks, natural and humanmade features, views from designated City viewpoints, and scenic qualities along mapped
scenic routes. SMC § 25.05.675 lists the public views that should be considered for
protection during project level review under SEPA. Many of the identified sites are within the
study area.78
SCALE expressed concern that five images on EIS page 3.163 “do not accurately or
adequately describe the current aesthetics in the actual neighborhoods that are impacted by
the MHA legislation.”79 According to the EIS, a comprehensive summary of the 3,000 acre
study area is not possible, but these pictures show representative examples of common
physical forms that exist in the study area.80 The Board notes that typically nonproject EISs
are more general and less detailed than subsequent project proposals.81
SEPA Rules allowed Seattle to incorporate and primarily rely on the 2016
Comprehensive Plan EIS for baseline land use information that had already been compiled.
Applying the Rule of Reason to test the adequacy of the nonproject EIS sections on
“Affected Environment,” the Board finds and concludes that the MHA EIS, including
incorporated portions of the Comprehensive Plan EIS, adequately disclosed to City decision
makers and to the public the baseline environmental land use and aesthetics conditions for
the 18 Urban Villages, six (6) Hub Urban Villages, and three (3) Urban Centers in the MHA
Study Area.
Height, Bulk, and Scale Impacts
SCALE alleges the graphics on 3.178–3.179 of the EIS, which are meant to show
height, bulk, scale and character impacts of the proposal, are incomplete and not credible,
and the mid-level perspective (instead of head-on street level perspective) downplays the

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Id. at 3.164-3.167.
Id. at 3.168-3.169.
79 SCALE’s Prehearing Brief at 19.
80 EIS at 3.162.
81 See WAC 197-11-442(1).
78

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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height impacts.82
Seattle responds that the graphics focus on impact rather than area, and there was
no technical or expert testimony to challenge the accuracy of the portrayal of development
allowed by existing code and by the proposal. Further, Seattle states it would be
unreasonable to require the City to prepare graphics for the many more permutations and
combinations of development possibilities for each zoning change in each area, despite the
fact that the precise location and details of any specific project are unknown.83
The EIS section on impacts to Aesthetics says “[g]iven the large scale of the study
area, impacts to aesthetics and urban design are primarily discussed in a qualitative and
generalized manner.” Because MHA is a broadly defined, citywide program, the EIS does
not provide a detailed analysis of aesthetic impacts at any specific location because the
exact form of future development cannot be accurately predicted.84 EIS section 3.3.2
discusses impacts common to all alternatives and discloses that the action alternatives will
result in an incremental increase in the scale and intensity of development. Zoning changes
are classified into three “M Suffix” categories based on the magnitude of the changes.
Detailed information is presented on code amendments on height, FAR, scale, setback, and
intensity of development, using graphics, text, and tabular information.85 One example on
page 3.186-3.187 is the disclosure that the primary impact of the (M) Tier capacity increase
to NC-55 is the increased height, which allows for the presence of a 5 story building across
the street from the residential zone, with an additional story that contributes to greater visual
bulk and has some reduction to the amount of light and air at ground level.
Impacts to development character, height, and scale are detailed with text and maps
for each action alternative on EIS pages 3.191-3.209. As to the preferred alternative, for
example, the EIS discloses that maximum building height in the HR (Highrise multifamily)
zone within the First Hill-Capitol Hill Urban Center would increase from 300 feet to 440 feet.
This is 100 feet taller than would be allowed under Alternative 2 or Alternative 3, and would
increase the maximum FAR from 14 to 15. The EIS discloses this as a “significant aesthetic
SCALE’s Prehearing Brief at 22.
Seattle’s Prehearing Brief at 67-68.
84 EIS at 3.169.
85 EIS at 3.170-3.190.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 26 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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impact on adjacent development and neighborhood character,” and Exhibits 3.3-29 and 3.330 are graphics showing examples of the potential infill development in the HR Zone for the
preferred alternative compared to the no action alternative.
Applying the Rule of Reason to test the adequacy of the nonproject EIS section on
impacts to Aesthetics, and in accordance with WAC 197-11-442(4), the Board finds and
concludes that the MHA EIS contained a reasonably thorough discussion and adequately
disclosed to City decision makers and to the public the height, bulk, and scale
environmental impacts associated with the action alternatives.
Edge Impacts
SCALE points to testimony that there is a significant number of places where the
proposal will increase the zoning to above 40 feet in areas that are immediately adjacent to
single-family areas, and some single-family zones are immediately adjacent to areas that
are being upzoned to heights of up to 75 feet.86 According to SCALE, when the City Council
adopts a rezone the Seattle Municipal Code requires a transition or buffer between zones,
and a gradual transition, including height limits, is preferred.87
Seattle responds that the EIS provides extensive discussion of theses “edge” effects,
including these examples:






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Significant land use impacts would be most likely to occur near frequent transit
stations, at transitions between existing commercial areas and existing singlefamily zones, and in areas changing from existing single-family zoning in urban
villages and urban village expansion areas.88
Existing single family areas at the outer edges of urban villages with proposed
expansion—including Rainier Beach, North Beacon Hill, Othello, and 23rd &
Union–Jackson—would experience land use impacts similar to those of
Alternative 2. Land use would become denser with more varied housing types,
which could result in moderate land use impacts.89
Because expansion areas are at the edges of urban villages, they would likely
function as transitional areas, forming a buffer between the most intense
development in the urban village and the low-intensity neighborhoods surrounding
it. However, expanding urban villages would, over time, lead to the conversion of
existing development to higher intensity uses, development of taller buildings, and

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SCALE’s Prehearing Brief at 25.
SMC § 23.34.008E.
88 EIS at 1.21.
89 Id. at 3.142.
87

FINAL DECISION AND ORDER
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December 30, 2019
Page 27 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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

establishment of a more urban character in the expansion areas, compared with
existing conditions.90
Land use changes that create more gradual transitions between higher- and
lower-scale zones, may mitigate land use impacts over the long term as this may
achieve less abrupt edges between land uses of different scales and intensity.91

The EIS also discloses and analyzes neighborhood-specific edge and transition
impacts.92 Zoning near Urban Village edges can be identified using an online mapping tool
that is part of the EIS.93
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impacts to Aesthetics, and in accordance with WAC 197-11-442(4), the Board finds and

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concludes that the MHA EIS contained a reasonably thorough discussion and adequately
disclosed to City decision makers and to the public the environmental edge and transition
impacts associated with the action alternatives.
View Impacts
SCALE asserts that the EIS does not adequately disclose and analyze the view
impacts of the MHA Proposal, does not identify viewsheds, and does not provide
meaningful information for the public and decision makers to understand the view impacts. 94

However, the Board notes that In addition to the discussion of impacts to views common to
all alternatives, the EIS includes discussion of view obstruction (including from scenic
routes) and shading effect for all the action alternatives.95 The EIS also discloses that scale
could result in view blockage, decreased access to light and air at ground level, reductions
in privacy, and increases in light and glare.96 The EIS includes discussion of the influence of
topography on impacts to views, such as taller buildings blocking views. 97

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Id. at 3.190.
Id. at 3.156.
92 Id. at 3.122-3.130.
93 Seattle’s Prehearing Brief at 70; Index 459 (Tr. vol. 18, 93:7—96:11, Sep. 4, 2018 (Gifford)).
94 SCALE’s Prehearing Brief at 26-27.
95 EIS at 3.196, 3.199, and 3.209.
96 EIS at 3.111.
97 EIS at 3.118.
91

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 28 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Applying the Rule of Reason to test the adequacy of the nonproject EIS section on
impacts to Views, and in accordance with WAC 197-11-442(4), the Board finds and
concludes that the MHA EIS contained a reasonably thorough discussion and adequately
disclosed to City decision makers and to the public the environmental impacts on Views
associated with the action alternatives.
Shadow Impacts
SCALE argues the EIS has only one grossly inadequate paragraph on shadow
impacts and that the EIS needed to identify specific public parks, schools, and street ends
that will be affected by shadows considering that SMC 25.05.675.Q.2 indicates that these
are explicitly protected areas under SEPA.98
However, beyond the summary of shadow impacts common to all alternatives, the
EIS has multiple sections disclosing how tier zoning changes can create shading impacts.99
Increased shadowing onto adjacent single family areas was disclosed for the Upper Queen
Anne and Greenwood-Phinney Ridge areas.100 Shading and shadow impacts on adjacent
parks are discussed and shown graphically on EIS pages 3.184-3.185. Finally, the EIS
includes mitigation to address protection of public views (including from scenic routes) and
to mitigate shading, acknowledging the Seattle Municipal Code provisions that protect open
space areas from shading and proposing changes to the Design Review Program to
address shading/shadow impacts.101
Applying the Rule of Reason to test the adequacy of the nonproject EIS section on
Shadow impacts, and in accordance with WAC 197-11-442(4), the Board finds and
concludes that the MHA EIS contained a reasonably thorough discussion and adequately
disclosed to City decision makers and to the public the environmental impacts on Shadows
associated with the action alternatives.

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SCALE’s Prehearing Brief at 28.
EIS at 3.176, 3.177, and 3.186.
100 EIS at 3.147-3.148.
101 EIS at 3.211-3.212.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 29 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Conclusion
WAC 197-11-442 states that the lead agency shall have more flexibility in preparing
EISs on nonproject proposals because there is normally less detailed information available
on their environmental impacts and on any subsequent project proposals. Since this is a
nonproject proposal for which the discussion shall be limited to a general discussion of the
impacts, and applying the Rule of Reason to test the adequacy of the EIS, the Board finds
and concludes that the MHA EIS provides a reasonably thorough discussion of
environmental impacts and adequately disclosed significant aspects of the probable
environmental consequences on Aesthetics so that City officials could make an informed
decision and reasoned choice among alternatives. Issue 1.7 is dismissed.
Legal Issue 1.8 – Historic resources: Does the EIS fail to adequately identify the
existing historic resource environment; fail to adequately analyze the impacts of the
alternatives on those resources; and fail to adequately address mitigation related to
those resources?
As a threshold matter, the Board considers dueling arguments by the parties relating
to the City’s February 7, 2019, Historic Resources Addendum to the EIS.102 SCALE asserts
that Seattle improperly used the Historic Resources Addendum to analyze impacts, and
SCALE argues that Seattle was instead required to prepare a Supplemental EIS (SEIS) on
historic resources.103 Seattle asserts that it was legally entitled to analyze historic impacts in
a published Addendum rather than an SEIS and further, Seattle alleges that Petitioners
failed to raise the Addendum as a legal issue in their consolidated Petitions for Review.104
SCALE and other parties appealed Seattle’s Final EIS to the City of Seattle Hearing
Examiner. After 19 days of hearings, the Hearing Examiner affirmed the adequacy of the
EIS in all aspects with the exception of the historic resources analysis, which the Hearing
Examiner remanded for the following:
1. include City designated landmarks information in Exhibit 3.5-2 in the FEIS, and
make associated text amendments to accommodate this inclusion;
2. provide a more detailed and clear analysis identifying the contents of the City

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IN 80.
SCALE’s Prehearing Brief at 37.
104 Seattle’s Prehearing Brief at 91-92.
103

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 30 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 database resource (e.g. all properties in the database not just the designated
landmarks) and how they have been utilized to inform the FEIS analysis; and
3. ensure that the FEIS analysis adequately analyses all probable significant
adverse impacts to City designated landmarks where Code protections are not
assured, including but not limited to those associated with SEPA exempt projects
and redevelopment that impacts the setting or character of a designated historic
landmark property.

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The City should also correct the typo in FEIS Exhibit 3.5-4 that failed to
indicate that a Context Statement has been prepared for North Beacon Hill.
The City should also ensure that all NRHP [National Register of Historic
Places] properties are depicted on FEIS Exhibit 3.5-2, if any are missing (as
alleged by Appellants at hearing).
Given the opportunity of the FEIS historic resources section remand the City
may also wish to address cumulative impacts to historic resources, if any, in its
revisions to this FEIS chapter.105
On remand from the Hearing Examiner, Seattle prepared a Historic Resources
Addendum to the EIS containing 36 pages of narrative with tabular data plus 105 pages of
appendices with 90 urban village maps and tables disclosing historic resources including
City of Seattle Landmarks, NRHP Determined Eligible Resources, National Register Historic
Districts, and City of Seattle Historic Preservation Districts.106 The urban village maps also
show many green diamonds and green dots, denoting respectively “inventoried resources”
and “hold resources” from the City’s database, which have been disclosed for future
reference as possibly meeting the criteria for designation as a City Landmark.107 For each
urban village, the Addendum maps show the differences between the three action
alternatives.
SEPA Rules define "Addendum" as “an environmental document used to provide
additional information or analysis that does not substantially change the analysis of
significant impacts and alternatives in the existing environmental document. The term does
not include supplemental EISs. An addendum may be used at any time during the SEPA
process.108
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Index 515 (Revised Findings and Decision of Hearing Examiner, at 36 of 38.)
IN 80.
107 IN 80 Historic Resources Appendix.
108 WAC 197-11-706.
106

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 31 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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The SEPA Rules anticipate a situation where an agency may wish to use a
previously issued final EIS for a proposal that is the same as, or different than, the proposal
analyzed in the previously issued final EIS. SEPA Rules in WAC-197-11-600 When to use
existing environmental documents provide that an Addendum is the appropriate vehicle
for adding analyses or information about a proposal that "do not substantially change the
analysis of significant impacts and alternatives in the existing environmental document." By
contrast, the City must prepare a Supplemental Environmental Impact Statement (SEIS) if
there are "substantial changes so that the proposal is likely to have significant adverse
environmental impacts," or if there is "new information indicating a proposal's probable
significant adverse environmental impacts."109
In the present case, the proposal (MHA Ordinance No. 125791) has not changed.
The Addendum does not substantially change the analysis of significant impacts and
alternatives in the existing environmental document; rather it adds additional information
about historic resources. Also, and contrary to SCALE’s argument, the Hearing Examiner’s
remand is not “new information” about probable significant adverse environmental impacts.
Potentially significant impacts to historic resources were known and analyzed in the EIS but
the Hearing Examiner determined that the EIS discussion was not “reasonably thorough”
and needed to include additional information on City designated landmarks and City
database resources in order to better inform City decision makers and the public.110
The Board finds and concludes that under these facts, the City was not required to
use an SEIS and was authorized to use an addendum to add analyses or information about
MHA that "do not substantially change the analysis of significant impacts and alternatives.”
The Addendum to the EIS together with the final EIS constitute the SEPA environmental
record made available to inform City decision makers and the public about the
environmental consequences of the proposed MHA legislation. The City issued a Notice of
Availability of the EIS Addendum111 for public review, and Seattle received public comments
on the Historic Resources Addendum, including from Petitioner SCALE.112
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Thornton Creek Legal Fund v. Seattle, 113 Wn. App. 34, 40 (2002); SMC 25.05.600.
Revised Findings and Decision of the Hearing Examiner for the City of Seattle at 29 of 38 (Dec. 6, 2018).
111 IN 81.
112 IN PC11188.
110

FINAL DECISION AND ORDER
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December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Regarding Seattle’s claim that Petitioners cannot challenge the Addendum because
the Petitions for Review did not mention the word “Addendum,” the Board disagrees. Issue
Statement 1.8 uses the words “identify the existing historic resource environment . . .
analyze the impacts of the alternatives on those resources . . . address mitigation related to
those resources.” The record shows that Seattle’s Addendum was issued in response to the
Hearing Examiner’s remand to add additional information to the SEPA record to more fully
disclose impacts to the affected historic environment. The Addendum identifies historic
resources and analyzes impacts on those historic resources together with potential

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mitigation. The Addendum, along with related SEPA documents, were provided to the City

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1940 houses in all urban villages and expansion areas.113 The Hearing Examiner heard

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Council and made available to citizens who commented on the draft EIS. The Board finds
and concludes that the Addendum falls within the scope of Petitioner’s Issue 1.8 and thus
may be challenged in this proceeding.
Turning now to the substantive arguments about the adequacy of the historic
resources analysis, SEPA requires a reasonably thorough discussion of the significant
aspects of the probable environmental consequences.
SCALE argues that the City should have included more information on the
“assemblage of fine homes that are not on any [historic] register,” including surveying pre-

extensive expert level testimony describing early Twentieth Century homes clustered in the
Ravenna-Cowen, North Rainier, Ballard, South Park, and Morgan Junction
neighborhoods.114
The EIS and Addendum mapped by urban village and analyzed City historic
landmarks and historic districts together with properties listed or eligible for listing on the
National Register of Historic Places. Many of the pre-1940 houses referred to by SCALE
may have been altered so that they are not eligible for NRHP listing and therefore do not
have the “significance” that a listed or NRHP-eligible property would have. There were
10,449 households in single-family neighborhoods covered by the MHA proposal.115 SEPA

SCALE’s Prehearing Brief at 29, including n.6.
IN 515 at 9 of 38.
115 IN 1026.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 33 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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does not require detailed analysis of all houses in 27 urban villages that are older than
1940. Applying the Rule of Reason the Board finds and concludes that it is reasonable to
focus SEPA analysis on significant historic properties as evidenced by being listed or
eligible for listing on a historic register. Moreover, for “nonproject” actions such as area-wide
zoning ordinances, SEPA requires the discussion be limited to a general discussion of the
impacts.116
The fundamental purpose of an EIS is to present decision makers with a "reasonably
thorough discussion of the significant aspects of the probable environmental consequences"
of the proposal so that City officials can make an informed decision and reasoned choice
among alternatives. The SEPA Rules state that Environmental Impacts may be: (i) Direct;
(ii) Indirect; or (iii) Cumulative.117 For a discussion of the impacts of alternate proposals,
Section 3.5.2 of the MHA EIS states in part:
The MHA program would not directly impact any historic or cultural resources,
but development allowed by the MHA program could impact these resources
indirectly by affecting decisions to demolish or redevelop historic-aged
properties or construct new properties on land that may contain belowground
cultural resources. . . .
Redevelopment, demolition, and new construction projects could occur in the
study area as a result of all Alternatives; these projects could impact historic
resources or result in ground disturbance. Any ground disturbance could
impact belowground cultural resources, if present. However, existing policies
and regulations regarding review of historic and cultural resources would not
change under any Alternative. For development projects within the study area
that would be subject to SEPA, potential impacts to historic and cultural
resources would still be considered during project-level SEPA review. . . .

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Potential impacts to historic resources could occur from demolition,
redevelopment that impacts the character of a historic property, or
development adjacent to a designated landmark if the development alters the
setting of the landmark and the setting is a contributing element of that
landmark’s eligibility. Redevelopment could result in a significant adverse
impact for properties that have the potential to be landmarks if the regulatory
process governing the development does not require consideration of that
property’s potential eligibility as a Seattle Landmark, such as projects exempt
from review under SEPA. For example, projects with fewer than 20 residential

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WAC 197-11-442(4).
WAC 197-11-792(2)(c).

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 34 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 units, or that have less than 12,000 square feet of commercial space, are
exempt from SEPA review.

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Typical SEPA-exempt projects that could occur under the project would be
redevelopment or replacement of single-family residences and small buildings
with slightly larger residences and buildings. . . .
Potential decreases to the historic fabric of a neighborhood are likely to occur
if historic buildings are redeveloped or demolished and new buildings are
constructed that are not architecturally sympathetic to the existing historic
characteristics of a neighborhood.118
The EIS thus recognizes and discloses that MHA’s increase in development capacity
has the potential for significant adverse impacts from redevelopment or replacement of
properties such as single-family residences in the affected urban villages or expansion
areas, and over time this could cumulatively alter the historic fabric of a neighborhood. The
EIS also discloses to City decision makers that smaller projects potentially impacting
historic resources may not go through project-level SEPA review because they are below
the SEPA-triggering thresholds, although historic preservation expert Eugenia Woo testified
that SEPA review thresholds are lower for potential historic landmarks.119
SCALE claims that the EIS’s 50% growth rate threshold for significant impacts is
“arbitrary” and was created with no basis whatsoever.”120 However, SCALE does not point
to any evidence justifying a different threshold. Our Supreme Court has recognized the
difficulty in defining a significance threshold, observing, “a precise and workable definition
is elusive because judgments in this area are particularly subjective—what to one person
may constitute a significant or adverse effect on the quality of the environment may be of
little or no consequence to another.”121 Applying the Rule of Reason to this record, the
Board finds that the 50% growth threshold was reasonable.
Finally, both SCALE and Fremont Neighborhood Council challenge the EIS
discussion of mitigation measures for historic resources.122 WAC 197-11-440(6)(c)(iv) says

118

EIS at 3.304-3.306.
IN 342 (TR 1:203).
120 SCALE’s Prehearing Brief at 32.
121 Norway Hill Pres. & Prot. Ass’n v. King Cty. Council, 87 Wn.2d 267, 277 (1976).
122 SCALE’s Prehearing Brief at 34–35; Fremont Neighborhood Council’s Brief at 15.
119

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 35 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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the EIS may discuss the technical feasibility and economic practicability of mitigation but
the EIS need not analyze mitigation measures in detail unless they involve substantial
changes to the proposal causing significant adverse impacts. Petitioners presented no
specific arguments or evidence showing that the mitigation measures discussed on EIS
pages 3.311-3.312 are inadequate.
While the Board has reviewed de novo the MHA EIS and associated Addendum
pertaining to historic resources, the SEPA Rules say the City’s determination that an EIS is
“adequate” under SEPA shall be accorded “substantial weight.”123 In this instance, the final
City determination on adequacy of the historic resources analysis, which shall be accorded
substantial weight, was made by Seattle’s SEPA Responsible Official on remand from the
Hearing Examiner.
Since this is a nonproject proposal for which the discussion shall be limited to a
general discussion of the impacts, and applying the Rule of Reason to test the adequacy of
the EIS, the Board finds and concludes that the MHA EIS and Addendum together provided
a reasonably thorough discussion of environmental impacts and adequately disclosed
significant aspects of the probable environmental consequences on historic resources so
that City officials could make an informed decision and reasoned choice among
alternatives. Issue 1.8 is dismissed.
Legal Issue 1.9 – Displacement: Does the EIS fail to adequately analyze the
displacement impacts associated with the alternatives and fail to adequately address
mitigation related to those resources?
“Displacement Impacts” was raised as a legal issue by multiple Petitioners alleging
the EIS analysis is inadequate. Economic displacement is sometimes referred to in the
record as “gentrification.”124 Expert testimony in the record explains that “economic
displacement is not physical displacement where buildings are torn down” but rather refers
to rising rents or rising property taxes so tenants or homeowners “can no longer afford to
live there.”125

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RCW 43.21C.090.
IN 385 (TR 7:128, 140); IN 465 (TR 19: 150, 153).
125 IN 385 (TR 7:127).
124

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 36 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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SCALE asserts a major displacement concern is that pricey, new development
spurred by MHA’s upzones will cause an increase in rents and housing prices that will force
lower income households out of their homes and out of their established neighborhoods. 126
SCALE’s socio-economic experts state that in terms of Seattle’s equity objective, the largest
economic displacement impacts have been suffered by Seattle’s African American
population.127 SCALE points to a scatterplot in EIS Appendix M showing an apparent weak
positive correlation between change in housing production and change in households with
incomes between 50% and 80% of Area Median Income (AMI) for all Seattle census

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tracts.128 The parties disagreed on whether this citywide scatterplot showed any systematic

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or static due to the recession.132 SUN alleges Seattle’s failure to include 2015-2016 baseline

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relationship between housing production and change of lower income households in the
MHA study area.129
SUN asserts the EIS is inadequate in analyzing displacement impacts from
upzoning,130 and SUN incorporates the discussion and argument re displacement at pages
43-52 of SCALE’s Prehearing Brief.131 SUN points to EIS Appendix A data from 2007-2011
showing that 80% of Seattle’s Census tracts had at least 10-15 % of their populations
experiencing a cost burden (30-50% of their income on housing costs) or a severe costburden (over 50% of their income on housing costs), when housing values were going down
data renders the EIS an inadequate basis to evaluate current or future impacts.133
Seattle asserts that although SEPA does not require the EIS to analyze economic
displacement, Seattle chose to evaluate economic displacement impacts, which exceeds
SEPA requirements and meets the Rule of Reason.134
The City of Seattle and Petitioners appear to agree that economic displacement or
gentrification is an important issue to the citizens of Seattle. EIS Section 3.1 analyzes

SCALE’s Prehearing Brief at 43-44.
IN 348 (TR 2: 71); IN 385 (TR 7: 139).
128 EIS Appendix M, at M.13, Exhibit M-15.
129 SCALE’s Prehearing Brief at 47-48; Seattle’s Prehearing Brief at 82-83.
130 Petitioner SUN’ Prehearing Brief at 4.
131 Id. at 1.
132 Id. at 4.
133 Id.
134 Seattle’s Prehearing Brief at 74-86.
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127

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 37 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Housing and Socioeconomics. Economic Displacement and Cultural Displacement is
analyzed in EIS pages 3.43 to 3.59. The EIS also contains a 68 page Growth and Equity
appendix analyzing impacts on displacement and opportunity related to Seattle’s Growth
Strategy.135
An important threshold question the Board must now consider is whether Petitioners
can legally challenge the adequacy of those EIS sections that analyze socioeconomic
impacts of the MHA program.
In 1980, our Supreme Court held in Barrie v. Kitsap County that Kitsap County’s EIS
“discussion of socio-economic effects” (i.e., economic deterioration) was inadequate as to
potential economic competition from a retail center proposed to be located outside of the
City of Bremerton’s central business district.136 In response to the Barrie decision, the
Legislature in 1983 amended SEPA to limit the scope of required EIS analyses to only a “list
of elements of the environment” as set forth in RCW 43.21C.110(1)(f) and as adopted by the
Department of Ecology in the SEPA Rules.
Under amended RCW 43.21C.110(1)(f) and SEPA Rules at WAC 197-11-444 and 448(2), “Elements of the environment” are now limited to the “natural” and “built”
environments, which includes “housing” but does not include the term "socioeconomic."
According to Professor Richard Settle, one purpose of the 1983 statutory amendments and
the SEPA Rule changes at WAC 197-11-444 and -448 was to “require only analysis of
impacts to elements of the environment listed in WAC 197-11-444 and to exclude from
mandatory EIS coverage purely economic, social, and other nonenvironmental impacts.”137
Economic competition, socioeconomics, profits and income, fiscal policies, and social
policy analyses are not required to be discussed in an EIS.138 An EIS is required to analyze
only significant adverse environmental impacts on the “Elements of the environment” as
listed in the SEPA Rules in WAC 197-11-444. Economics and socioeconomics are not listed
in the SEPA Rules as “Elements of the environment.”

135

EIS Appendix A (May 2016).
93 Wn.2d 843, 860 (1980).
137 Settle, Richard L., The Washington State Environmental Policy Act: A Legal and Policy Analysis, §
14.01[2][a], p. 14-55 (rev. ed. 2002).
138 WAC 197-11-448(2) and -448(3). See also Seattle Municipal Code § 25.05.448.
136

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 38 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Case law interpreting the SEPA statutes and SEPA Rules holds that an EIS needs to
analyze significant adverse impacts on the physical environment or built environment
resulting from economic competition but the EIS does not need to analyze economic
competition, in and of itself.139 Housing is an element of the environment, so an EIS should
analyze significant adverse housing impacts such as demolition of housing as part of the
built environment. For example, the SEPA Environmental Checklist calls for information on
the number of high, middle, or low-income housing units provided or eliminated.140
Since economic displacement and social displacement are not identified as an
“Element of the environment” in RCW 43.21C.110(1)(f) nor in WAC 197-11-444, Seattle was
not required to analyze economic displacement or social displacement in the MHA EIS.
Seattle chose to include some analysis of socioeconomic impacts in the EIS but any
perceived inadequacies in this voluntary analysis cannot be the basis for finding a violation
of SEPA’s environmental disclosure mandates since SEPA does not require such analysis
of nonenvironmental impacts.141 Similarly, the Seattle Municipal Code states that the City
may at its option include EIS analysis of nonenvironmental impacts but such
nonenvironmental analysis “shall not be used in determining whether an EIS meets the
requirements of SEPA.”142
Therefore, the Board cannot review Petitioners’ arguments that the EIS contains an
inadequate discussion of economic displacement, cultural displacement, social policies, or
other nonenvironmental impacts.
The Board now must consider Petitioners arguments that the EIS analysis of physical
housing impacts (e.g., demolition impacts) was inadequate. Demolition of housing is a
recognized impact to the “built environment.”143
SCALE alleges that the EIS understates the risk of demolishing homes to make way
for new, higher priced units because the EIS used past trends to forecast future housing

Indian Trail Property Owner’s Association v. City of Spokane, 76 Wn. App. 430, 444 (1994); W. 514 v.
County of Spokane, 53 Wn. App. 838, 847-848 (1989).
140 WAC 197-11-960 Environmental Checklist, Element 9 Housing.
141 See Settle, Richard L., The Washington State Environmental Policy Act: A Legal and Policy Analysis, §
14.01[2][a], p. 14-55 (rev. ed. 2002).
142 Seattle Municipal Code § 25.05.440(G).
143 WAC 197-11-444(2)(b)(ii) and 197-11-960(B)(9).
139

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 39 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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demolitions. SCALE argues that past redevelopment primarily involved “low hanging fruit” of

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down and replaced with a new project, you may end up with equal or more housing units but

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empty lots or parcels that could be subdivided to create new buildable lots but much of that
supply is now exhausted, meaning that future redevelopment will more often displace
households than indicated by historic data.144
SCALE points to testimony by land use economics consultant William Reid, who
opined that the EIS relied on historic demolition data that does not account for a “greater
rate of demolition” resulting from the MHA upzones creating far more development capacity
on each parcel.145 As an example, Mr. Reid explained that if an old apartment house is torn

financial considerations typically result in a loss of lower-cost units that are replaced by units
at top of market cost.146 Reid acknowledged that the EIS discussed this phenomenon
qualitatively but Reid suggested that the EIS did not contain an adequate quantitative
analysis of greater demolition rates resulting from MHA upzoning as compared to historic
demolition rates under pre-MHA zoning.147
Seattle responds that the “historic trends” approach overstated the amount of
demolition that would occur in the future, since the increased capacity would allow more
new units to be built for each demolished unit. Even under the “historic trends” approach,
the number of additional demolitions under the preferred alternative only exceeds that under
“no action” by 82 units over the twenty-year study period (e.g., 2980 demolished units
versus 2898). The FEIS then estimated the number of additional physically displaced lowincome households that would result from demolitions under the proposal.148 Seattle further
states that the EIS used two different methods to estimate the demolitions that would result
from the proposal: the “parcel allocation modeling” approach and the “historic trends”
approach.149
EIS Appendix G explains the two alternate methodologies for estimating potential
demolitions: (1) modeling demolition by allocating growth to parcels, and (2) estimating
SCALE’s Prehearing Brief at 51.
IN 348 (TR2: 99-104); IN 545.
146 IN 348 (TR2: 87).
147 Id. at 98, 104.
148 Seattle’s Prehearing Brief at 75.
149 Id. at 75-76.
144
145

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 40 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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demolition based on historic trends. The calculated demolitions under both methods are
presented in tabular format for all EIS alternatives in EIS Section 3.1.2 IMPACTS, Exhibit
3.1-41.150
Seattle’s land use and housing expert Kevin Ramsey said “that’s why we chose a
parcel allocation method as the first method of analyzing, because it accounts for the fact
that there may be less empty parking lots than there were back in the year 2000, and it
accounts for what’s actually available for development moving forward.” 151
SCALE’s expert William Reid did not do any quantitative analysis of demolition
impacts but did opine that the EIS relies too much on estimating demolition based on
historic trends. However, SCALE’s expert offered no critique of Seattle’s alternate method of
estimating demolitions using parcel allocation modeling -- Reid simply acknowledged that
Seattle prepared a “detailed analysis” by modeling displacement in different urban
villages.152
SCALE’s expert and Seattle agree that demolition of existing housing due to
redevelopment has already occurred even before passage of the MHA ordinance,153 but
they appear to disagree on the future rate of demolition resulting from upzoning for
increased development capacity.
In conclusion, Seattle conducted a detailed analysis to estimate housing demolition
impacts for all EIS alternatives using two alternate methodologies -- historic trends and
parcel allocation modeling. In contrast, SCALE presented only conclusory statements about
housing demolitions without any quantitative analysis, and SCALE failed to adduce specific
evidence showing that the City’s analyses were deficient.
Applying the Rule of Reason to test the adequacy of this nonproject EIS, the Board
finds and concludes as follows:
1. SEPA’s mandate to analyze significant adverse environmental impacts is limited
to the “Elements of the Environment” listed in WAC 197-11-444.
2. SEPA does not require that an EIS analyze purely economic, social policy,
socioeconomic, or other nonenvironmental impacts.

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150

EIS at 3.71.
Index 447 (Tr. vol. 16, 99:13–100:7, Aug. 30, 2018 (Ramsey)); IN 792.
152 IN 348 (TR2: 99).
153 IN 348 (TR2: 87); EIS at 3.69.
151

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 41 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 3. Seattle chose to include some analysis of socioeconomic impacts in the EIS but
any perceived inadequacies in this voluntary analysis cannot be the basis for
finding a violation of SEPA’s environmental disclosure mandates since SEPA
does not require such analysis of nonenvironmental impacts.
4. Housing is an element of the environment so an EIS should analyze significant
adverse housing impacts (e.g., number of high, middle, or low-income housing
units provided or eliminated).
5. Seattle conducted a detailed analysis to estimate housing demolition impacts for
all EIS alternatives using two alternate methodologies -- historic trends and parcel
allocation modeling.
6. SCALE presented conclusory statements about housing demolitions without any
quantitative analysis, and SCALE failed to adduce specific evidence showing that
the City’s physical demolition analyses were deficient.
7. The EIS contains a reasonably thorough discussion of potential housing units
provided and eliminated under the EIS action alternatives using two alternate
methodologies for estimating potential demolitions by modeling demolition
through allocating growth to parcels and by estimating demolition based on
historic trends.
8. Legal Issue 1.9 is dismissed.

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Legal Issue 1.10 – Public facilities and Services: Does the EIS fail to adequately
analyze the alternatives’ impacts on public facilities and services and mitigation for
those impacts?
Seniors United for Neighborhoods (SUN) argues the EIS fails to adequately identify
and analyze the impacts from upzoning on police, fire and emergency services, and water,
sewers and drainage systems.154 SUN points to the EIS statement that the overall effect of
the Preferred Alternative would be an additional 17,015 housing units more than would be
developed on the same number of existing parcels.155 SUN presents evidence of
inadequate levels of service for police, fire, emergency services, water, sewer, and
drainage.156 According to SUN, the true level of impact resulting from the MHA upzones and
density increases cannot be determined without first identifying existing deficiencies in
Seattle’s public services and infrastructure. SUN alleges the EIS discussion of existing
public services is not adequate as follows:

SUN’ Prehearing Brief at 11.
EIS at 3.381.
156 SUN’ Prehearing Brief at 11.
154
155

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 42 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Police. The “2016 Berkshire Report” ranks Seattle number one in overall crime
rate, worst overall in crime clearance rate, and unable to meet response time
standards due to understaffing of police officers.157
Fire and Emergency Services. Fire/EMS response times are met only 77% of the
time and despite population increase during 2015-2018, medic staffing declined
and firefighter staffing was static.158
Water and Sewer. The vast majority of Seattle's sewer pipe is less than 12" and
thus is already at or over capacity, particularly so in West Seattle, South Park,
and Wallingford. A University of Washington professor testified that RSL rezoning
in the Ravenna/Roosevelt area will increase overflow/runoff – the combined
sewer overflow pipes are already at capacity and cannot handle greater density.
Upzones will increase population, impervious surfaces, and sewage flows, further
increasing rainwater runoff which overwhelms the pipes and spills sewage into
Puget Sound, Lake Washington, Lake Union, and the Duwamish. Rain that
previously would have filtered into the soil or run off into streams will instead be
conveyed to the combined sewer that leads to the plant, thus increasing the
amount of peak flows to the plant during storm events. Climate change may also
lead to more frequent and/or more intense rain events, resulting in increased
volumes and frequency of high flows to the plant.159

Seattle responds to SUN’ arguments as follows:





The public services and utilities analysis applied reasonable and standard
methodologies, including use of analysis prepared for the 2035 Comprehensive
Plan EIS, which WAC 197-11-600 expressly allows.
The Comprehensive Plan EIS’s analysis was especially appropriate because of its
citywide scope and recent data.
The EIS’s public facilities and services analysis applied the same Level of Service
(LOS) standards set by the City and used in the Seattle 2035 Comprehensive
Plan EIS, and the City generally sets its LOS standards on a citywide level.
SEPA does not require that an EIS include every piece of information available
from any source (e.g., the 2016 Berkshire Report), particularly in a nonproject EIS
where less detailed information is available and where the City has greater
flexibility in its analysis under WAC 197-11-442(1) and SMC 25.05.442.A.160

The Board notes that EIS Chapter 3.8 on Public Services and Utilities relies on the
Seattle 2035 Comprehensive Plan EIS for information on existing conditions and public

157

Id. at 9-10; IN 716 Berkshire Advisors, Inc. Assessment of Sworn Staffing Needs, Seattle, Washington
(March 2016).
158 SUN’ Prehearing Brief at 10-11.
159 SUN’ Prehearing Brief at 11-12; IN 369, IN 712, IN 713, IN 714.
160 Seattle’s Prehearing Brief at 98-101.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 43 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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services capacities.161 Public services and utilities analyses from the adopted 2035 EIS

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addition, 25 schools are missing sidewalk infrastructure needed for the Safe Routes to

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were supplemented and updated in the MHA EIS, and in order to accommodate growth,
some facility upgrades and/or increased resources will be needed for police, fire/EMS and
utilities.162 In particular, growth induced service demands will likely mean significant
upgrades or new facilities and resources are needed for the Police South Precinct, Fire
Stations 2 and 31, and added EMS services in multiple growing Urban Villages.163 Seattle
Public Schools forecast the growth of 9,000 students, surpassing the existing capacity and
requiring 18 new or replacement schools and seismic upgrades for 37 additional schools. In
School program.164
The EIS discloses area-wide impacts from upzoning and density increases:
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

Development resulting from implementation of proposed zoning changes would
cause substantial population increases in some areas.
Population growth generally increases demand for public services, but more
compact pattern of growth can also reduce the distances that emergency vehicles
need to travel to respond to service calls.
Higher capacity can concentrate demand and cause local capacity problems.
Future MHA-induced development will likely result in greater demands on
localized areas of the water supply, sewer system, distribution system,
stormwater drainage, and electric power.
Urban villages north of 85th Street have a large amount of informal drainage and
are inherently capacity constrained.165

As to mitigation measures, the EIS discloses that the local or statewide regulatory
framework would apply at the time of development that would identify any specific projectlevel impacts and would be addressed on a project-by-project analysis, and development
will not be endorsed without identification of demand and availability of utilities.166
Since this is a nonproject proposal for which the discussion shall be limited to a
general discussion of the impacts, and applying the Rule of Reason to test the adequacy of
the EIS, the Board finds and concludes that the MHA EIS provided a reasonably thorough
161

EIS at 3.360.
EIS at 3.360-3.361, 3.377–3.384.
163 EIS at 3.360-3.362.
164 EIS at 3.362-3.364.
165 EIS at 3.372-3.373.
166 EIS at 3.372-3.373, 3.385.
162

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 44 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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discussion of environmental impacts and adequately disclosed significant aspects of the
probable environmental consequences on public facilities and services so that City officials
could make an informed decision and reasoned choice among alternatives. Issue 1.10 is
dismissed.
Legal Issue 1.11 – Parks: This issue was abandoned and is dismissed.
Legal Issue 1.12 – Trees: Does the EIS fail to adequately analyze the alternatives’
impacts on trees and mitigation for those impacts?
Fremont Neighborhood Council (Fremont) alleges that the EIS tree-loss analysis is
inadequate and unreasonable in several different respects: (1) The EIS did not include any
data on "tree" loss within the "study area" but outside urban villages; (2) the "tree" loss
calculation is unusable because the data include street trees on public property and large
shrubs on private property, greatly inflating the number of so-called "trees" per parcel; (3)
even if the data were valid, which they are not, data aggregation into four groups makes it
impossible to understand the impacts from upzoning in each urban village and in areas
outside urban villages; and (4) the EIS does not include data showing where large trees
(“exceptional" trees) and groves of trees on private property are located.167 Fremont also
states that the EIS “used LiDAR168 to calculate the impact of upzoning on tree cover
(“canopy”) on parcels in 27 residential urban villages,” and Fremont asserts this
methodology was inadequate.
In referring to 27 residential urban villages, Fremont appears to misapprehend the
nomenclature used under Seattle’s Urban Village Strategy to classify three types of areas:
Seattle has designated 18 Residential Urban Villages, six (6) Hub Urban Villages, and six
(6) Urban Centers. Residential Urban Villages emphasize residential uses while allowing
commercial and retail services at a lower scale than in Hub Urban Villages; compared to
Hub Urban Villages, Residential Urban Villages have more land in single-family and

Fremont’s Prehearing Brief at 9-10.
Light Detection and Ranging is a remote sensing method that uses light in the form of a pulsed laser to
measure ranges (variable distances) to the Earth. These light pulses—combined with other data recorded by
the airborne system— generate three-dimensional information about the shape of the Earth and its surface
characteristics.
167
168

FINAL DECISION AND ORDER
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December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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multifamily residential use.169
This distinction in the number of Residential Urban Villages relates to part of
Fremont’s assertion that the “vast majority of trees and large shrubs” are located in “Single
Family Residential areas.”170 Single Family Residential is the designated land use for more
than half of Seattle’s total land area, and predominates outside of the MHA Study Area. 171
Seattle contends that the MHA rezones affect just six percent of Seattle land with singlefamily zoning.172 The EIS states: 72% of Seattle’s tree canopy is located in residential
zones, and 23% of the tree canopy is with the public right-of-way.173 Thus, the EIS record
suggests that only a small fraction of Seattle’s tree canopy is located in MHA-rezoned
areas, outside of public right-of-way.
As to the inclusion of street trees on public property in the EIS analysis, Seattle
asserts that by including street trees in the calculation of trees that may be impacted by the
proposal (even though City regulations provide stronger protections for street trees than
private trees), the impacts analysis is more conservative and decision makers are better
informed.174 The FEIS also explicitly acknowledges the existence of gaps in current tree
protections and includes mitigation measures that suggest improving enforcement,
expanding tree protections, and other measures to strengthen tree protections.175
Fremont’s claim that the EIS did not include any data on "tree" loss within the "study
area" but outside urban villages is disputed by the City and not supported by Mike Leech
who performed the tree canopy analysis and testified the analysis covered the areas within
each of the proposed zoning alternatives – within the project extent.176
Fremont cites a report by the Green Cities Research Alliance finding that residential
areas have much more ecological diversity than other areas and play a key role in

169

EIS at 3.102-3.103 and 3.107.
Fremont’s Prehearing Brief at 2, quoting from Index # 701 at 7, Seattle's Forest Ecosystem Values:
Analysis of the Structure, Functions, and Economic Benefits (August, 2012).
171 EIS at 2.3 and 3.103-3.105.
172 Seattle’s Prehearing Brief at 3, 5, 16, 112, and 152.
173 EIS at 3.316-3.317.
174 Seattle’s Prehearing Brief at 105; Index 399 (Tr. vol. 9, 154:12–155:2 July 26, 2018 (Leech)). Index 399 (Tr.
vol. 9, 201:13–205:23, July 26, 2018 (Rundquist)). See also Index 730 (Resume of Nolan Rundquist).
175 EIS at 3.340–3.341.
176 Index 399 (Tr. vol. 9, 156:24–158:24, July 26, 2018 (Leech)).
170

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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managing storm water runoff, thus reducing soil erosion, pollution loads, and sewage
overflows into water bodies.177 Seattle says the City adequately addressed the impact of
increased impervious surface in its analysis of impacts to stormwater facilities that are
designed to mitigate new impervious surface and pollution generating surfaces.178
According to the EIS, trees in the City are specifically valued and legally protected
under various regulations in addition to the Environmentally Critical Areas (ECA) code (SMC
25.09.320). These include the Tree Protection Ordinance (SMC Chapter 25.11),
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environmental regulations (SMC 25.05.675) that implement the goals and policies of the

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expansion areas.180

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Seattle 2035 Comprehensive Plan for protection of the urban forest. As of 2016, Seattle had
a 28% tree canopy cover, and the Urban Forest Management Plan set a goal to increase
Seattle’s tree canopy cover to 30 percent by 2037.179
Under the EIS Preferred Alternative, the parcels changing from SF and LR to NC/C
would see the largest change in tree canopy cover if fully developed. Overall, there is
currently approximately 22 percent tree canopy coverage within the Preferred Alternative
expansion areas. With the zoning changes proposed in the Preferred Alternative, there is
the potential for a total loss of between 0.7 and 3.6 acres of tree canopy cover within those

Under the worst case scenario of full development of the upzoned areas in the
Preferred Alternative, the EIS Tree Canopy Analysis discloses up to a 1.9% reduction in tree
canopy cover due to site disturbance during construction and through land use activities
after construction.181 The LR to NC/C zone change affecting 10.6 acres of tree cover would
have a high scenario tree cover change coefficient of -9.59%. The SF to NC/C zone change
affecting 6 acres of tree cover would have a high scenario tree cover change coefficient of
-12.16%. The SF to RSL zone change affecting 308.2 acres of tree cover would have a high

177

Index # 701, Seattle's Forest Ecosystem Values: Analysis of the Structure, Functions, and Economic
Benefits (August, 2012).
178 Seattle’s Prehearing Brief at 103; See EIS at 3.368 – 3.370, 3.372, 3.385.
179 EIS at 3.315-3.316.
180 EIS at 3.338.
181 EIS at 3.321.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 47 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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scenario tree cover change coefficient of -1.81%.182
At the November 7, 2019 hearing, Fremont’s attorney presented evidence from the
record showing in green shading the “East Fremont Tree Canopy Series” located just west
of Stone Way N between North 42nd Street and North 45th Street.183 Fremont suggests that
some of this mature tree canopy could be lost as a result of rezone-induced development
and increased density in the Urban Village. However, given that the MHA EIS is a
nonproject EIS covering a large area of Seattle, and since SEPA calls for a more general
discussion of impacts in a nonproject EIS, there is no requirement for highly detailed, parcelby-parcel analyses of tree canopy impacts. Those site-specific tree impacts should be
considered at the project level SEPA review or under other tree protection ordinances.
Finally, Fremont alleges Seattle failed to disclose to the City’s Urban Forestry
Commission a report titled “Tree Regulation Research Project,” and relatedly failed to reveal
knowledge concerning lack of effectiveness of current and proposed mitigation.184
According to Fremont, the report concludes that “Current code is not supporting tree
protection.”185 Fremont does, however acknowledge that the Tree Regulation Research
Project report was listed in the EIS reference section.186 WAC 197-11-440(6)(c)(iv) says the
EIS may discuss the technical feasibility and economic practicability of mitigation but the
EIS need not analyze mitigation measures in detail unless they involve substantial changes
to the proposal or new information about significant adverse impacts. Fremont presented no
specific arguments or evidence showing that the mitigation measures discussed on EIS
pages 3.340-3.342 are inadequate.
Since this is a nonproject proposal for which the discussion shall be limited to a
general discussion of the impacts, and applying the Rule of Reason to test the adequacy of
the EIS, the Board finds and concludes that the MHA EIS provided a reasonably thorough
discussion of environmental impacts and adequately disclosed significant aspects of the
probable environmental consequences on trees so that City officials could make an

182

Id. at 3.339.
IN 623 at 2-3.
184 Fremont’s Prehearing Brief at 10.
185 Id.; Index 588 at 3.
186 Fremont’s Prehearing Brief at 10.
183

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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informed decision and reasoned choice among alternatives. Issue 1.12 is dismissed.
Legal Issue 1.13 – Cumulative effects: Does the EIS fail to adequately address the
cumulative effects of the proposal and the alternatives?
SCALE and SUN argue the EIS failed to assess cumulative impacts to historic
resources (SCALE) and public services (SUN) by failing to evaluate the combination of
development that would occur under baseline conditions “even without MHA,” and the
“additional development catalyzed by MHA.”187
The no action alternative covers growth and potential impacts that will occur
throughout the city without MHA; the action alternatives cover growth that will occur under
MHA.188 Given that much development is driven by private market conditions, it is
impossible to predict the site sizes, or future development configurations that will take place,
and these could vary widely.189
The MHA EIS formally adopted the Seattle 2035 Comprehensive Plan EIS from May
of 2016 to provide current and relevant environmental information. The MHA builds on the
prior Seattle 2035 analysis, which addresses growth patterns in the city as a whole. To
consider cumulative impacts of the MHA alternatives, the EIS analyzed impacts on a

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citywide or systems scale. For example, the Transportation analysis in EIS Section 3.4 is

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the Board finds and concludes that the EIS is adequate and complies with the State

based on a citywide computer model of traffic for the city as a whole, including areas outside
of the study area and even outside of the city.190
Applying the Rule of Reason to test the adequacy of this nonproject EIS, the Board
finds and concludes that the EIS discussion of cumulative impacts was reasonably thorough
and adequate. Legal Issue 1.13 is dismissed.
D. Conclusion – SEPA EIS Adequacy
Applying the Rule of Reason to test the adequacy of Seattle’s nonproject MHA EIS,

SCALE’s Brief at 33–34; SUN’ Brief at 8, 11–13.
IN 429 (Tr. Vol. 13, at 167.
189 IN 80 at 17.
190 EIS at 4.6
187
188

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 49 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Environmental Policy Act.
V. INCONSISTENCY AND COMPLIANCE WITH GMA PLANNING GOALS
A. Standard of Review and Applicable law
Comprehensive plans and development regulations, and amendments to them, are
presumed valid upon adoption.191 This presumption creates a high threshold for
challengers as the burden is on the Petitioners to demonstrate that any action taken by the
City is not in compliance with the Growth Management Act.192 The scope of the Board’s
review is limited to determining whether a City has achieved compliance with the GMA only
with respect to those issues presented in a timely petition for review. 193 The Board is
directed to find compliance unless it determines that the challenged action is clearly
erroneous in view of the entire record before the Board and in light of the goals and
requirements of the GMA.194
RCW 36.70A.130(1)(d) provides that any amendment of or revision to development
regulations shall be consistent with and implement the comprehensive plan. RCW
36.70A.020 sets out a list of goals, not listed in any priority, and which are to be used
“exclusively for the purpose of guiding the development of comprehensive plans and
development regulations”.
The Department of Commerce has issued regulations to guide jurisdictions in
evaluating the consistency of their development regulations and comprehensive plan. WAC
365-196-210(8) defines consistency as meaning “that no feature of a plan or regulation is
incompatible with any other feature of a plan or regulation. Consistency is indicative of a
capacity for orderly integration or operation with other elements in a system.”
WAC 365-196-800(1) describes the relationship between development regulations
and comprehensive plans:
Development regulations under the act are specific controls placed on
development or land use activities by a county or city. Development regulations
191

RCW 36.70A.320(1).
RCW 36.70A.320(2).
193 RCW 36.70A.290(1).
194 RCW 36.70A.320(3). In order to find the City’s action clearly erroneous, the Board must be “left with the
firm and definite conviction that a mistake has been made.” Dep’t of Ecology v. PUD 1, 121 Wn.2d 179, 201
(1993).
192

FINAL DECISION AND ORDER
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December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
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must be consistent with and implement comprehensive plans adopted pursuant
to the act.
"Implement" in this context has a more affirmative meaning than merely
"consistent." See WAC 365-196-210. "Implement" connotes not only a lack of
conflict but also a sufficient scope to fully carry out the goals, policies,
standards and directions contained in the comprehensive plan.
Over the years, the Board has applied the statute and regulations in a variety of
settings and in numerous decisions.
The Board has stated that "consistency can also mean more than one policy
not being a roadblock for another; it can also mean that the policies of a
comprehensive plan … must work together in a coordinated fashion to achieve
a common goal." 195
Growth Management Act (GMA) also requires that development regulations
"implement" the policies and provisions of the comprehensive plan.
"Implement" has a more affirmative meaning than merely "consistent with."
Implement connotes not only a lack of conflict but sufficient scope to carry out
fully the goals, policies, standards and directions contained in the
comprehensive plan.196

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Perceived inconsistencies between a specific development regulation and
specific, isolated comprehensive plan goals does not violate RCW 36.70A.040.
Rather, an .040 violation results if the development regulations preclude
attainment of planning goals/policies.197

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In determining when an inconsistency exists between various parts of a local
jurisdiction's planning policies and regulations, we have held that consistency
means that no feature of the plan or regulation is incompatible with any other
feature of the plan or regulation. … Said another way, no feature of one plan
may preclude achievement of any other feature of that plan or any other
plan.198
A finding of inconsistency requires a showing of actual conflict between
competing provisions of a city’s planning policies and development
regulations.199
In analyzing whether there is a lack of consistency between a plan provision
and a development regulation, arising to a violation of the GMA, this Board has
195

Alberg, et al v. King County, CPSGMHB No. 95-3-0041c (FDO, September 13, 1995) at 15. See also: West
Seattle Defense Fund, et al. v. Seattle, CPSGMHB No. 94-3-0016c (FDO, April 4, 1995) at 27; Children's
Alliance v. City of Bellevue, CPSGMHB No. 95-3-0011 (FDO, July 25, 1995).
196 Bertelsen and Raine v. Yakima County, et al., EWGMHB No. 00-1-0009 (FDO, November 2, 2000) at 7.
197 Cook & Heikkila v. Winlock, CPSGMHB No. 09-2-0013c (FDO, October 8, 2009) at 35.
198 Ray, et al. v. City of Olympia and Dept. of Ecy, WWGMHB No. 02-2-0013 (FDO, June 11, 2003) at 9.
199 Id. at 1.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 held that such a violation results if the development regulations preclude
attainment of planning goals and policies.200
The GMA’s consistency requirement “means that differing parts of the
comprehensive plan ‘must fit together so that no one feature precludes the
achievement of any other.’” 201

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This does not mean that any tension between the goals in a plan is
impermissible; courts recognize that “[g]oals considered by local governments
in comprehensive planning may be mutually competitive at times,’ and “[t]he
weighing of competing goals and policies is a fundamental planning
responsibility of the local government.” If an amendment “meaningfully
advances [some] comprehensive plan goals and policies,’ the fact that it ‘fails
to advance another … cannot [alone] be an invalidating inconsistency” if the
latter goals are not precluded by the former. 202
Instead,
“[t]he GMA requirement for internal consistency means that the planning
policies and regulations must not make it impossible to carry out one provision
of a plan or regulation and also carry out the others.”203
In Cook & Heikkila,204 the Board identified three questions to guide analysis of
consistency in any case:


Do the development regulations implement the comprehensive plan goals and
policies?



Do any of the development regulation’s features preclude achievement of any of
the Comprehensive Plan policies?



Have the Petitioners shown actual conflict between Comprehensive Plan policies
and the new developments regulations?

In answering these questions, the Board looks to the Petitioner’s briefs for
identification of the language of the Ordinance alleged to be inconsistent with specific

200

Martin v. Whatcom County, GMHB No. 11-2-0002 (FDO, July 22, 2011) at 17.
Brinnon Grp. v. Jefferson County, 159 Wn. App. 446, 476-77; 245 P.3rd 789, 804 (2011), quoting WAC
365-196-500(1).
202 Spokane County v. E. Wash. Growth Mgmt. Hearings Bd., 173 Wn. App. 310, 333; 293 P.3d 1248, 1259-60
(2013).
203 Futurewise v. Whatcom County, WWGMHB No. 05-2-0013 (Final Decision and Order, January 9, 2012) at
169.
204 Cook & Heikkila v. Winlock, WWGMHB No. 09-2-0013c (FDO, October 8, 2009) at 34, 35.
201

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 52 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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language in the Comprehensive Plan (existing or newly adopted) or an explanation of how
implementation of the Ordinance precludes achievement of or is in direct conflict with the
Comprehensive Plan policy. Generally speaking, adequate briefing requires not only
identification of the inconsistency, but also legal analysis and an application of the law to the
facts.205
B. Abandoned Issues
For any issues set out in the Prehearing Order but not specifically addressed here,
the briefing is insufficient to sustain the argument and the issues are deemed abandoned.
The Board cannot entertain an argument based on conclusory statements without shifting
the burden of proof from the Petitioners on to the City, an outcome that the statute does not
embrace. Specifically, of the issues set out in the Prehearing Order, no Petitioner offered
briefing on legal issues 2.1, 2.2, 2.3, 2.4, 2.7, 2.8; these issues are deemed abandoned and
are dismissed.
C. Discussion and Analysis of Legal Issues
Ordinance 125790 amended the land use map to expand the boundaries of certain
urban villages and amended certain neighborhood plan policies.206 Ordinance 125791
amends the development regulations applicable and to these areas and the zoning map. 207
Substantively, the impact or effect of these ordinances is to increase development capacity
in certain areas of the City and to require new development to either provide affordable
housing or make an in lieu payment to support development of such housing.
All Petitioners, with the exception of Wallingford, alleged that the MHA ordinance was
inconsistent with certain policies of the City’s Comprehensive Plan, in violation of GMA
goals set out at RCW 36.70A.020 and with RCW 36.70A.130(1)(d) and implementing
regulations. Petitioner SUN limited its challenge to asserting that passage of the MHA
ordinance is in conflict with and was not guided by the GMA planning goals for open space,

205

Tulalip Tribes of Wash. v. Snohomish Cty., CPSGMHB No. 96-3-0029 (Final Decision and Order, January
8, 1997) at 7; Samson v. City of Bainbridge Island, CPSGMHB No. 04-3-0013 (Final Decision and Order,
January 19, 2005) at 6.
206 Index 99, Ordnance 125790.
207 Index 100, Ordinance 125791.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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recreation and public facilities.208 The discussion and analysis here is organized by
Petitioner, consistent with the organization of the issues as presented in the Petitioners’
briefs.
SCALE
Legal Issue 2.6 – Historical Preservation
Is the MHA ordinance in conflict with and not guided by the GMA planning goals for
historic preservation, to identify and encourage the preservation of lands, sites, and
structures that have historical significance?
Legal Issue 2.14
Does the MHA ordinance violate GMA requirements in RCW 36.70A.130(1)(d) that a
development regulation be consistent with and implement the Comprehensive Plan
adopting regulations that are inconsistent and fail to implement the Comprehensive
Plan policies listed in Appendix A. The comprehensive plan consistency issues
include these major topics: 2.14.1 Historic Resources
Petitioner SCALE alleges that the Ordinance in inconsistent with the GMA goal
concerning historic preservation, RCW 36.70A.020(13), which advises local jurisdictions to
“identify and encourage the preservation of lands, sites, and structures, that have historical
or archaeological significance.”
More specifically, SCALE alleges that the Ordinance is inconsistent with LU 14.1 of
the City’s Comprehensive Plan:
Maintain a comprehensive survey and inventory of Seattle’s historic and
cultural resources. Update the survey and inventory when developing a new
community plan or updating an existing plan, as appropriate.
SCALE alleges that the City has not complied with either the call to maintain a
comprehensive survey and inventory or the call to update these items when updating a
community plan. SCALE notes that the City did conduct historic surveys as called for in LU
14.1 before proposing zoning changes in two prior actions involving updating community
plans and rezones in the University District and Uptown/Queen Anne, but did not comply
with the policy here.209 The Petitioner asserts that the City has “never surveyed 17 of the 28

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Prehearing Order at 4.
SCALE’s Prehearing Brief, p. 56.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
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Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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… urban villages” affected by the Ordinance, “nor the commercial areas outside the urban
villages.”210
The City points out that the GMA goal does not mandate a specific action and LU
14.1 itself encourages action “as appropriate”, providing flexibility in application of the policy.
The City made a distinction in how it dealt with the potential impacts on historical resources
in the University District and Uptown/Queen Anne case and in the case of the Seattle MHA
ordinances.211
In response, Petitioner states that the City has not complied with the policy requiring
the City to maintain a comprehensive policy and inventory, but then limits its argument
concerning consistency only to the city’s failure to update the survey and inventory when
developing this legislation.212
Petitioner’s argument rests on the assertion that the failure to perform same updates
for the land use zones affected by this Ordinance, as was done in other actions impacting
specific land use zones, is a direct conflict and thus proves the inconsistency. 213 But to
accept Petitioner’s conclusion is to negate the wording of the policy itself, which gives the
City the authority to use its judgment in deciding precisely where the policy concerning
updating the survey and inventory will be applied. Nor can the City’s action in adopting
these Ordinances be read to preclude achievement of the policy, as nothing in the
challenged Ordinances prevents such surveys and updates from being performed in the
future.
To the extent that the SEPA analysis reviewed by the hearing examiner required
additional work concerning historic resources, the City performed that work and issued an
Addendum. The argument made by the Petitioner for the necessity of the SEPA Addendum
cannot, in the absence of legal argument pertaining specifically to the GMA’s requirements,
sustain a finding of inconsistency here.

SCALE’s Prehearing Brief, pp. 55-56.
Seattle’s Prehearing Brief, p. 121.
212 SCALE’s Reply Brief, p. 23.
213 Id. The argument about whether or not the survey was appropriate in part because it was cost-prohibitive is
not a criteria or element which the Board chooses to pursue. Although a jurisdiction’s budget provides an
expression of its policies, it is not a matter of evaluation or analysis by this Board.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 55 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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The Board finds and concludes that the Petitioner has failed to demonstrate a
direct conflict between the Ordinance and policy LU 14.1, or that the Ordinance precludes
the achievement of the policy.
Legal Issue 2.6 is dismissed.
Issues 2.14
Does the MHA ordinance violate GMA requirements in RCW 36.70A.130(1)(d) that a
development regulation be consistent with and implement the Comprehensive Plan
adopting regulations that are inconsistent and fail to implement the Comprehensive
Plan policies listed in Appendix A. The comprehensive plan consistency issues
include these major topics: 2.14.5 Height, Bulk, Scale, Edge Effects and Noise; 2.14.6
Land Use, and 2.14.7 – Urban form/ Aesthetics
SCALE lists a number of Comprehensive Plan policies identified and testified to in
the record wherein the Comprehensive Plan envisioned urban villages as including single
family areas, as opposed to the Ordinance’s alleged elimination of single family zoning.214
The brief lists the policies, GS 3.11, 3.21, GS 3.11, LU 1.4, R-HP1, GS 1.3, LU 7.1, GS 1.3,
and GS G3, but identifies no specific language of the Ordinance or of the policies alleged to
be in conflict nor any legal argument as to why the implementation of the Ordinance would
preclude or prevent the realization of these policies. Petitioner offers:
Due to page limit restrictions, the arguments and evidence provided above
regarding the analysis in the MHA EIS is incorporated herein for the purpose
of demonstrating that the MHA Legislation is inconsistent with all of these
identified policies.215
The City notes the absence of explanation or legal analysis and points out that
arguments related to this case’s SEPA issues do not provide adequate argument on issues
of GMA compliance. The City asserts that the lack of discussion or legal argument
constitutes abandonment of the issues.216 The Board agrees.
The Board finds and concludes that Petitioner SCALE has failed to satisfy its
burden of proof by abandoning the assertions of inconsistency in Issues 2.14.5, 2.14.6 and
2.14.7.
Testimony by Peter Steinbrueck identified in Petitioner Scale’s brief at 56.
SCALE’s Prehearing Brief, p. 57.
216 Seattle’s Prehearing Brief, p. 130.
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FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 56 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Duwamish Valley Neighborhood Planning Council (DVNPC)
Legal Issue 2.9
By eliminating single-family zoning throughout South Park and other neighborhoods,
did the Citywide MHA ordinance violate the requirements of RCW 36.70A.130(1)(d)
and WAC 365-196-800(1) that a development regulation “shall be consistent with and
implement the comprehensive plan” which must “encourage preservation of existing
housing stock” (RCW 36.70A.020(4)) and must provide “mandatory provisions for the
preservation, improvement, and development of housing, including single-family
residences” (RCW 36.70A.070(2)(b))?
Legal Issue 2.10
By eliminating single-family zoning in South Park, but not amending the
Comprehensive Plan’s South Park neighborhood “subarea” plan (RCW
36.70A.080(2)), including SP-G8 to preserve single-family housing, SP-P8 to
encourage maintenance of existing housing, and the Future Land Use Map, did the
Citywide MHA ordinance violate requirements of RCW 36.70A.130(1)(d) and WAC-365196-800(1) that any “amendment or revision to development regulations shall be
consistent with and implement the comprehensive plan?”
Petitioner DVNPC argues that the challenged Ordinance “eliminated all single-family
zoning in urban villages, including South Park”, and is in conflict with RCW 36.70A.070(2)(b)
requiring comprehensive plans to include a housing element with “mandatory provisions for

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the preservation, improvement, and development of housing, including single family

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groups.

residence.217 The argument is conclusory; as the City points out in its response, the
legislation did not touch most of the single-family zoning in South Park and, indeed
preserves the opportunities for single-family housing.218
In its response, the City notes that the introduction of the RSL zone is consistent with
the preservation and development of single-family detached housing, but modestly sized
and with on more than one single-family home allowed on any individual lot.219 The Board
notes that the Ordinance advances a number of other housing policies,220 all of which serve
to support housing, including single family residences, across economic and demographic

217

DVNPC’s Prehearing Brief, p. 22.
Seattle’s Prehearing Brief, pp. 124-126,
219 Id. at 125.
220 Id. at 119, citing Housing goal 2, Housing Goal 5; Housing Policy 1.2, Housing Policy 5.2, Housing Policy
5.15, Housing Policy 5.16.
218

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 57 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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The Board finds and concludes that the Petitioner has failed to demonstrate a
violation of the GMA, a conflict between the Ordinance and existing policies in the
Comprehensive Plan, or that the Ordinance precludes the achievement of those policies.
Legal Issues 2.9 and 2.10 are dismissed.
Legal Issue 2.11
Did the Citywide MHA ordinance violate the requirements of RCW 36.70A.130(1)(d)
and WAC 365-196-800(1) that development regulations must be “consistent with and
implement comprehensive plans” by failing to comply with the Comprehensive Plan’s
goals and policies CW 6.2, CI 1.2, CI 1.5, CI 2.1, and CI 2.4), including the failure to
translate significant portions of MHA legislation into the languages prevalent in
South Park and the surrounding Duwamish Valley neighborhoods?
Legal Issue 2.12
Does the Citywide MHA ordinance violate RCW 36.70A.020(13) and is it inconsistent
with WAC 365-196-450 and a variety of Comprehensive Plan goals and policies (GS
3.9, LU 14.2, LU 14.8, LU 14.9, LU G15, LU 15.1, LU 15.2, LU G16, H 4.5, and ED 1.4) to
preserve historic resources by rezoning South Park to encourage redevelopment
while DVNPC is working to create an historic district with the support of a King
County grant?
Legal Issue 2.13
Is the Citywide MHA Ordinance part of a continuing pattern of discrimination against
marginalized populations, which the City concedes occurred in the past, inconsistent
with the Comprehensive Plan goals and policies (GS 1.8 limit displacement, LU 2.7,
LU 2.8, CW 1.7, CI 1.4, CI 1.6) in violation of RCW 36.70A.130(1)(d) and WAC 365-196800(1), because rezoning South Park to RSL(M) will create additional displacement in
a neighborhood classified as having High Displacement risk?
Petitioner DVNPC lists the policies with which the Ordinance is inconsistent, including
LU 14.2, LU 14.8, LU 14.9, LU G15, LU 15.1, LU 15.2, LU G16, H 4.5 and ED 1.4
concerning historical resources, LU 2.7, LU 2.8, CW 1.7, CI 1.4, and CI 1.6 concerning
marginalized populations and displacement.221 Petitioner identifies no specific language in
the policies cited nor any argument as to precisely how the challenged Ordinance conflicts
with or would preclude achievement of any of these policies. Petitioner’s argument
throughout appears to be based on the idea that any diminution of single-family zoning is
221

DVNPC’s Prehearing Brief, p. 24.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 58 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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per se in conflict with the Comprehensive Plan’s policies encouraging the preservation of
single-family housing.222
The Board finds and concludes that the Petitioner has failed to demonstrate a
violation of the GMA, a conflict between the Ordinance and existing policies in the
Comprehensive Plan, or that the Ordinance precludes the achievement of those policies.
Legal Issues 2.11, 2.12, and 2.13 are dismissed.
Legal Issue 3.7
Did the City violate the notice, public participation, and coordination provisions of
RCW 36.70A.020(11) and Comprehensive Plan policy GS 4.1 for adjacent jurisdiction
cooperation in violation of RCW 36.70A.035,RCW 36.70A.140, and RCW
36.70A.130(1)(d), by failing to notice South Park residents, failing to work with King
County, and failing to notice unincorporated King County residents to “ensure
coordination between communities and jurisdictions to reconcile conflicts” affected
by a pending annexation [ftn. omitted] previously approved by King County that
could be affected by Citywide MHA?
DVNPC failed to brief and therefore abandoned that portion of Legal Issue 3.7
pertaining to notice and public participation. As to the requirement in RCW 36.70A.130(1)(d)
that development regulations “shall be consistent with and implement the comprehensive
plan,” DVNPC did not present any legal argument that specified language in the challenged
ordinance was inconsistent with specified language in the Comprehensive Plan. DVNPC
simply alleged that MHA rezoning could jeopardize that annexation because it requires
adjacent neighborhoods have similar zoning.223
The Board finds and concludes that Petitioners have failed to satisfy their burden of
proof to demonstrate that Seattle Ordinance Nos. 125790 and 125791 violate the
requirements of RCW 36.70A.130(1)(d) that “[a]ny amendment of or revision to
development regulations shall be consistent with and implement the comprehensive plan.”
Legal Issue 3.7 is dismissed.

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DVNPC’s Reply to City Prehearing Brief, p. 8.
DVNPC Prehearing Brief at 24.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 59 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Seniors United for Neighborhoods (SUN)
Legal Issue 2.14
Does the MHA ordinance violate GMA requirements in RCW 36.70A.130(1)(d) that a
development regulation be consistent with and implement the Comprehensive Plan
adopting regulations that are inconsistent and fail to implement the Comprehensive
Plan policies listed in Appendix A. The comprehensive plan consistency issues
include these major topics: 2.14.2 Displacement and loss of affordable housing
Petitioner SUN argued that the Ordinance is inconsistent with policy H 2.6 and LU
2.8.224
Policy H 2.6 admonishes the City to seek to identify affordable housing at risk of
demolition and work to mitigate the displacement of residents ahead of planned up zones;
LU 2.8 required the City to evaluate new land use regulations to determine if there are
adverse outcomes on certain populations “unfairly,” and seek to avoid or mitigate those
outcomes.
Petitioner acknowledges the City’s efforts in the EIS, but asserts that the City did not
identify specific housing at risk nor provide for avoidance or mitigation of those specific
adverse outcomes.225 Petitioner SUN thereafter concludes that the failure “will lead to
displacement of thousands of marginalized people, seniors, and others on fixed incomes,” in
addition to displacement middle and lower-wage workers, but without further proof of these
results.
The City replies that the FEIS not only evaluated physical displacement, but offers
evidence from the record that the Ordinance, the preferred alternative under evaluation, will
generate more new affordable housing than to “no action” alternative. The City argues that
the legislative itself links development capacity increases to the imposition of affordable
housing requirement.226
In reply, SUN emphasizes language in the policies that require the City to identify the
housing at risk and work to mitigate displacement ahead of planned up zones, interpreting

224

SUN identifies other policies by number, but offers no analysis or legal argument. As noted, simply claiming
inconsistently without providing adequate argument is insufficient to offer the Board any basis to analyze the
claim. These issues are deemed abandoned.
225 Petitioner SUN’s Prehearing Brief, at 7.
226 Seattle’s Prehearing Brief, at 122.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 60 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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this language to require rather specific identification of the properties that may be subject to
displacement and to provide mitigation addressing those specific displacements.227 The
problem with this argument is, of course, that it is patently impractical and, if interpreted as
SUN suggests, would essentially bar any rezones.
As the City notes, the entire thrust of the challenged Ordinance is to provide and
address housing scarcity, and the FEIS thoroughly evaluated physical displacement
especially as it impacts marginalized populations.228 The Board is persuaded that the
Petitioner has not met its burden to show that the Ordinance is in conflict with or precludes
achievement of Policy H 2.6.
As pertains to LU 2.8, the City offers somewhat the same defense, inasmuch as the
legislation is aimed at providing alternative housing to these potentially displaced
populations. In sum, however, the burden of proof is on the Petitioner, and the Board
cannot find that the Petitioner has met its burden to show how the Ordinance here
challenged is in conflict with or precludes achievement of the City’s policies H 2.6 or LU 2.8.
The Board finds and concludes that the Petitioner has failed to demonstrate a
violation of the GMA, a conflict between the Ordinance and existing policies in the
Comprehensive Plan, or that the Ordinance precludes the achievement of those policies.
Legal Issue 2.5
Is the MHA ordinance in conflict with and not guided by the GMA planning goals for
open space and recreation, and for ensuring adequate public facilities and levels of
service? RCW 36.70A.020(9) and (12)?
Petitioner SUN alleges that the Ordinance violates the GMA Goal RCW
36.70A.020(9) which calls on local governments to retain open space, enhance recreational
opportunities and develop parks and recreational facilities. Petitioner SUN argues that the
EIS, Chapter 3.7, admits adverse impacts and thus provides the evidence in the record that
the Ordinance is noncompliant. Further, while the EIS identifies mitigation measures, SUN
argues that the City’s failure to adopt any of those measures further supports

227
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Petitioner SUN’s Reply Brief, at 4-5.
Seattle’s Prehearing Brief, at 122-123.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 61 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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noncompliance.229
There is no specific GMA section or requirement implementing this goal. SUN’s
argument seems to be a recitation that the City should have policies on this goal and, had
they had such policies, this Ordinance would have conflicted with them.230
The Board finds and concludes that the Petitioner has failed to demonstrate a
violation of the GMA, a conflict between the Ordinance and existing policies in the
Comprehensive Plan, or that the Ordinance precludes the achievement of those policies.
Legal Issue 2.5 is dismissed.
Fremont Neighborhood Association (FNC)
Issue 2.14
Does the MHA ordinance violate GMA requirements in RCW 36.70A.130(1)(d) that a
development regulation be consistent with and implement the Comprehensive Plan
adopting regulations that are inconsistent and fail to implement the Comprehensive
Plan policies listed in Appendix A. The comprehensive plan consistency issues
include these major topics: 2.14.3. Trees and tree canopy
Petitioner FNC asserts that the Ordinance is in conflict with Comprehensive Plan
environmental policies in support of Goal EN G1 encouraging the preservation of tree
canopy throughout the City, thereafter listing policies EN 1.1, 1.2, 1.3 and 1.4. Fremont
argues that “[f]or many of the same reasons discussed in the section above” on
noncompliance with SEPA, the Ordinance is inconsistent with the Comprehensive Plan. 231
These policies are all phrased in aspirational terms:


EN 1.1 Seek to achieve an urban forest ...



EN 1.2 Strive to increase citywide tree canopy coverage …



EN 1.3 Use trees … and other low-impact development features to … reduce the
impacts of development.



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EN 1.4 Increase the amount of permeable surface by reducing hardscape
surfaces where possible …

229

Petitioner SUN’s Prehearing Brief, at 14-15.
Id.
231 Fremont Neighborhood Council Opening Brief, at 13.
230

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 62 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Not one of these policies sets out an affirmative or quantitative duty. FNC in its opening
brief does offer significant argument for exactly how the Ordinance is deficient in
implementing the policies,232 but the City counters by pointing out that FNC cannot show a
direct conflict with the policies, nor that the Ordinance precludes attainment of policies
relating to trees.233 The Board agrees.
The City points out that the FEIS for this Ordinance found that all the action
alternatives under consideration presented a potential to change the tree canopy cover over
the 20 year planning period as less than one percent.234 This level of impact of the
challenged Ordinance in insufficient to present either a direct conflict with or a preclusion of
the achievement of the cited policies.
As has been noted, the burden is on the Petitioner to show that the challenged action
either directly conflicts with existing policies or precludes their attainment.
The Board finds and concludes that the Petitioner FNC has failed to demonstrate a
violation of the GMA, a conflict between the Ordinance and existing policies in the
Comprehensive Plan, or that the Ordinance precludes the achievement of those policies in
Issues.
Legal Issue 2.14 is dismissed.
Conclusion – Inconsistency and GMA Planning Goals
As to Legal Issues 2.5 and 2.6, Petitioners have failed to satisfy their burden of proof
to demonstrate that Seattle Ordinance Nos. 125790 and 125791 are in conflict with and not
guided by the GMA Planning Goals for Open Space and Recreation (RCW 36.70A.020(9)),
Public Facilities and Services (RCW 36.70A.020(12)), and Historic Preservation (RCW
36.70A.020(13)). Legal Issues 2.5 and 2.6 are dismissed.
As to Legal Issues 2.9 and 2.10, 2.11, 2.12, 2.13, 2.14, and 3.7, Petitioners have
failed to satisfy their burden of proof to demonstrate that Seattle Ordinance Nos. 125790
and 125791 violate the requirements of RCW 36.70A.130(1)(d) that “[a]ny amendment of or
revision to development regulations shall be consistent with and implement the
232

Id. at 14.
Seattle’s Prehearing Brief, at 123.
234 Seattle’s Prehearing Brief, at 123.
233

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 63 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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comprehensive plan.” Legal Issues 2.9 and 2.10, 2.11, 2.12, 2.13, 2.14, and 3.7 are
dismissed.
VI.

PUBLIC PARTICIPATION

A. Standard of Review and Applicable law
Comprehensive plans and development regulations, and amendments to them, are
presumed valid upon adoption.235 This presumption creates a high threshold for
challengers as the burden is on the Petitioners to demonstrate that any action taken by the
City is not in compliance with the Growth Management Act.236 The scope of the Board’s
review is limited to determining whether a City has achieved compliance with the GMA only
with respect to those issues presented in a timely petition for review. 237 The Board is
directed to find compliance unless it determines that the challenged action is clearly
erroneous in view of the entire record before the Board and in light of the goals and
requirements of the GMA.238
Cities “shall establish and broadly disseminate to the public a public participation
program identifying procedures providing for early and continuous public participation in the
development and amendment of comprehensive land use plans and development
regulations implementing such plans.”239 Public participation requirements “shall include
notice procedures that are reasonably calculated to provide notice” of proposed
amendments to comprehensive plans and development regulations to individuals, property
owners, and organizations.240 “Errors in exact compliance with the established program and
procedures shall not render the comprehensive land use plan or development regulations
invalid if the spirit of the program and procedures is observed.”241 The GMA has a planning
goal to “[e]ncourage the involvement of citizens in the planning process”, and this goal

235

RCW 36.70A.320(1).
RCW 36.70A.320(2).
237 RCW 36.70A.290(1).
238 RCW 36.70A.320(3). In order to find the City’s action clearly erroneous, the Board must be “left with the
firm and definite conviction that a mistake has been made.” Dep’t of Ecology v. PUD 1, 121 Wn.2d 179, 201
(1993).
239 RCW 36.70A.140.
240 RCW 36.70A.035(1).
241 RCW 36.70A.140.
236

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 64 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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guides the development of comprehensive plans and development regulations.242
Thus, Petitioners have the burden of proving that Seattle failed to use procedures
reasonably calculated to provide notice of the City Council’s proposed enactment of
Ordinance Nos. 125790 and 125791.
B. Discussion and Analysis of Legal Issues
Legal Issue 3.1
Did the City Council violate the enhanced notice and public participation provisions
of RCW 36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 by adopting the
Citywide MHA ordinance and the Citywide MHA Comprehensive Plan amendments on
March 18, 2019 before the expiration of the published comment period on March 25,
2019 or March 29, 2019?
Petitioner Duwamish Valley Neighborhood Preservation Coalition (DVNPC) alleges
Seattle violated RCW 36.70A.140 which requires that Cities “shall establish and broadly
disseminate to the public a public participation program” identifying procedures that provide
for “consideration of and response to public comments.” DVNPC presented no legal briefing
as to RCW 36.70A.020(11) nor on RCW 36.70A.035 under legal issue 3.1.
DVNPC asserts (1) the City Council adopted the MHA ordinance on March 18th, 7 to

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action” on March 18, 2019, and stated, “Written comments may be submitted at any time

inadvertent error, and (3) at the official public hearing on February 21, 2019, a citizen read
and submitted written comments objecting to MHA passage before the end of the comment
period (Index No. 946, p. 21).243
Seattle responds: The notices published in advance of the February 21, 2019, City
Council public hearing mistakenly stated that final Council action was “not anticipated to
occur before March 25, 2019,” and that written comments would be accepted until that
point. However, subsequent notices published on March 4, 2019, expressly corrected the
date of the expected final Council action. The notices stated that the Council “may take

until the final Council vote on the legislation. A previous notice incorrectly indicated that

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RCW 36.70A.020(11).
DVNPC’s Prehearing Brief at 20.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 65 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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comments would be accepted through March 25.”
Under the SEPA Rules, errors in exact compliance with the established program and
procedures shall not render the comprehensive land use plan or development regulations
invalid if the spirit of the program and procedures is observed. In this instance, the City
corrected the mistake in the comment deadline prior to the March 18, 2019, City Council
meeting, and there is no evidence that this error in exact affected the public’s ability to
comment on the ordinance or to participate in the February 21 public hearing. The Board
finds that Seattle followed the spirit of the public participation program and procedures.
Moreover, DVNPC asserts a violation of RCW 36.70A.140 but does not point to any
evidence, and does not provide any legal argument that Seattle failed to “establish a public
participation program” identifying procedures that provide for consideration of and response
to public comments. The record indicates that Seattle did “establish” a public participation
program and when a mistake was made on the comment deadline date, the City corrected
that error and notified the public that the Council “may take action” on March 18, 2019.
DVNPC submitted at least six comments on or before March 10, 2019.244
The Board finds and concludes as follows:
1. Seattle has an established public participation program codified in Seattle
Municipal Code Chapter 23.76 that includes procedures that provide for
consideration of and response to public comments.
2. Notices published in advance of the February 21, 2019, City Council public
hearing on the MHA legislation mistakenly stated that final Council action was “not
anticipated to occur before March 25, 2019”, and that written comments would be
accepted until that point.
3. At the official public hearing on February 21, 2019, Ira Appelman read and
submitted written comments objecting to MHA passage before the end of the
comment period.
4. Seattle corrected the mistake in the comment deadline prior to the March 18,
2019, City Council meeting when the MHA legislation was adopted.
5. There is no evidence that Seattle’s error in exact compliance with public
participation procedures affected the public’s ability to comment on the MHA
legislation prior to the March 18 adoption date or to participate in the February 21
public hearing.

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Index PC07120, PC07594, PC08706, PC09284, PC11422, PC11428 (emails sent from Penni Cocking
under the email address dvnpcoalition@gmail.com).
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 66 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

 6. Errors in exact compliance with the established program and procedures shall not
render the comprehensive land use plan or development regulations invalid if the
spirit of the program and procedures is observed.
7. In enacting Ordinance Nos. 125790 and 125791, Seattle followed the spirit of the
public participation program and procedures.
8. DVNPC failed to satisfy its burden of proof to show that Seattle violated the RCW
36.70A.140 requirement to “establish and broadly disseminate to the public a
public participation program,” including procedures that provide for “consideration
of and response to public comments.”

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Legal Issue 3.1 is dismissed.
Legal Issue 3.2
Was it a violation of the enhanced public participation provisions of RCW
36.70A.020(11) and RCW 36.70A.140 for Councilmember Rob Johnson, the Chairman
of the Select MHA Committee, the Planning, Land Use, and Zoning (PLUZ) Committee,
and main advocate of Citywide MHA, to schedule a vacation on the hearing date,
missing the official public hearing for the Citywide MHA ordinance and Citywide MHA
Comprehensive Plan amendments, discouraging and avoiding public participation?
Under Legal Issue 3.2, DVNPC states:
The sponsor of the MHA bills, Councilmember Rob Johnson, was absent from
the official public hearing. He was absent, not because he was sick or injured
or had a death in the family or because of any other emergency. He was
absent because he decided to take a vacation on the day of the official MHA
public hearing (Index No. 846).245
DVNPC alleges these facts violate the enhanced public participation requirements of
the GMA include the RCW 36.70A.140 mandate … “for…consideration of and response to
public comments,” with the RCW 36.70A.020(11) goal to, “Encourage the involvement of
citizens in the planning process…”
DVNPC does not cite any GMA provision requiring the presence of a particular
public official when adopting amendments to comprehensive plans or development
regulations. City Councilmember Johnson attended multiple hearings and workshops, and
had ample opportunity to receive, consider, and respond to public comments in-person, in
addition to considering the written comments that the Council received.246

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DVNPC Prehearing Brief at 21.
E.g., Index 886, 887, 900, 901.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 67 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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DVNPC failed to satisfy its burden of proof to show that Seattle violated the RCW
36.70A.140 requirement to “establish and broadly disseminate to the public a public
participation program,” including procedures that provide for “consideration of and response
to public comments.”
Legal Issue 3.2 is dismissed.
Legal Issue 3.3
Does the Citywide MHA notice, which wasn’t reasonably available, wasn’t reasonably
likely to reach interested persons, and didn’t fairly and sufficiently apprise the public
of the disadvantages of MHA, but, instead promoted MHA and emphasized only the
alleged advantages, violate the notice and public participation provisions of RCW
36.70A.020(11), RCW 36.70A.035, WAC 365-196-600(6) and RCW 36.70A.140?
DVNPC argues: “The City materials were advertisement or promotions, not notice,
because they didn’t ‘alert the public to the key questions in play.’ The ‘notice’ provided by
the City didn’t inform the public that single-family housing would be eliminated because it’s
racist, which, as the City Council discussion proves, were key questions in play. . . . Failure
to provide notice that alerts the public to the key issues at play fails to comply with RCW
36.70A.035 and RCW 36.70A.140 is clearly erroneous.”247

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Seattle responds in pertinent part as follows:
The notices that the City published gave notice of the MHA ordinances’ key
features . . . and accurately described the rezones that would affect six
percent of Seattle land with single-family zoning. . . . For example, notice of
the Council’s public hearing provided a lengthy and detailed summary of the
bills, including specifically the rezones in “areas currently zoned Single Family
in existing urban villages” and “within expanded urban village boundaries.” The
notices also described the Council’s consideration of amendments of the goals
and policies in certain neighborhood plans; area-wide revisions to the official
zoning map; required contributions to affordable housing; amendments to the
various zones; amendments to general development standards, and other
features. . . . the City canvassed every household in areas currently zoned
single-family that were proposed for an increase in zoned capacity. . . .
materials used as part of that canvassing effort, such as the “door hanger” left
behind on residents’ doors, notified residents that zoning in their neighborhood
could change to RSL or Lowrise (LR1 – LR3) and provided a summary of what

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247

DVNPC Prehearing Brief at 16.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 68 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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those zoning changes could mean (e.g., allowing two to three attached
townhouses in areas zoned RSL, or three-story apartment buildings in LR1
zones).248
The Board finds and concludes that DVNPC failed to satisfy its burden of proof to
show that Seattle violated the RCW 36.70A.140 requirement to “establish and broadly
disseminate to the public a public participation program,” and DVNPC also failed to satisfy
its burden of proof to show that Seattle violated the RCW 36.70A.035 requirement to
“include notice procedures that are reasonably calculated to provide notice to property
owners and other affected and interested individuals, tribes, government agencies,
businesses, school districts, and organizations of proposed amendments to comprehensive
plans and development regulation.”
Issue 3.3 is dismissed.
Legal Issue 3.4
Was it a violation of the enhanced notice and public participation provisions of RCW
36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 to fail to use site-specific
means of notification when Seattle had a list of specific addresses affected by the
proposed lot-by-lot MHA zoning and used site-specific means of notification for other
purposes and projects?
Legal Issue 3.6
Did the City violate the notice and public participation provisions of RCW
36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 and the “spirit” of enhanced
public participation by failing to conduct surveys or measurements of any kind to
determine the effectiveness of the notice methods they adopted?
Legal Issue 3.11
Is the Citywide MHA ordinance part of an over 50-year pattern of attempts to eliminate
the single-family zoning and character of South Park where, in this latest Citywide
MHA round, the rezone to RSL(M) was predetermined and approved without proper
public participation in violation of RCW 36.70A.020(11), RCW 36.70A.035, and RCW
36.70A.140?

Seattle’s Prehearing Brief at 151-152. Seattle references the record as follows: Index 1130 (notice of public
hearing in LUIB); Index 1131 (Aff. of Publ’n, Notice of City Council Hr’g); Index 1132 (LUIB Notice of
Opportunity to Comment); Index 1133 (Aff. of Publ’n, Notice of Opportunity to Comment); Index 1026 (Final
Report for Cmty. Outreach Project on the HALA Mandatory Housing Affordability Program); and Index 1039
(door hanger notice).
248

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 69 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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Legal Issue 3.12
Did the City violate: (a) the requirements for enhanced notice and public participation
and “bottom up” effort of RCW 36.70A.020(11), RCW 36.70A.035, RCW
36.70A.130(2)(a), RCW 36.70A.140, and WAC 365-196-010(1)(c), and (b) the
requirements of RCW 36.70A.130(1)(d) and WAC 365-196-800(1) that development
regulations be consistent with and implement the Comprehensive Plan?
In their legal argument section under Issue Statements 3.4 and 3.6, DVNPC alleges
Seattle “used deceptive tactics to promote MHA, which are inconsistent with effective notice
and enhanced public participation (RCW 36.70A.035, RCW 36.70A.140), by hiring a very
strong advocate of MHA to provide “notice” and “survey” the public and then claim
overwhelming public support for MHA. . . . We urge the Board to conclude that hiring an
extreme partisan to inform the public and determine public attitudes is clearly erroneous and
that a mistake has been committed. ”249
Seattle responds that DVNPC’s theories of bias are wholly unsupported, however,
and its brief presents no evidence that suggests the canvassing effort was unreliable or
inaccurate.250
In their legal argument section under Issue Statements 3.11 and 3.12, DVNPC
asserts as follows:

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[T]he decision to eliminate single-family zoning in South Park and the other
urban villages was predetermined in the secret and closed meetings of the
HALA Committee, a group of development insiders, and extraordinarily
codified in a documents, the Grand Bargain, signed by the Mayor,
Councilmember O’Brien, the HALA Co-Chairs and many development
insiders, that is a top-down rather than bottom-up process (WAC 365-196010(1)(c). We contend that this latest attempt to eliminate single-family zones
in South Park is just another example in an over fifty-year struggle, which
violates proper public participation requirements of RCW 36.70A.020(11),
RCW 36.70A.035, RCW 36.70A.140, WAC251
Seattle states it followed all of the public participation and notice requirements in the
Seattle Municipal Code, and further alleges that DVNPC’s argument that the City violated
public participation requirements because the HALA Committee “predetermined” the City’s

249

DVNPC Prehearing Brief at 17, 20.
Seattle’s Prehearing Brief at 156.
251 DVNPC Prehearing Brief at 23.
250

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 70 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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action is wrong because the HALA Committee made no binding decision about rezones,
has no legislative power, and just makes recommendations to the City Council.252
The Board notes that DVNPC’s representative attended and participated in the
official City Council public hearing on February 21, 2019, and Ira Appelman read and
submitted written comments to the City Council.253
While DVNPC has expressed concerns about the HALA advisory committee,
Petitioners have failed to satisfy their burden of proof to demonstrate that Seattle did not
use procedures reasonably calculated to provide notice of the City Council’s proposed
enactment of Ordinance Nos. 125790 and 125791, or that the City did not follow the
statutory requirement to establish and broadly disseminate a public participation program
with procedures for consideration of and response to public comments.
Legal Issues 3.4, 3.6, 3.11, and 3.12 are dismissed.
Legal Issue 3.5
Did the City violate the enhanced notice and public participation provisions of RCW
36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 by setting a standard for
notice and public participation for six, individual Seattle neighborhoods, but then
including 27 neighborhoods into an omnibus (ftn. omitted) process creating
confusion and suppressing public participation?
Legal Issue 3.8
Did the City violate the enhanced public participation provisions of RCW 36.70A.140,
RCW 36.70A.130(2)(a), RCW 36.70A.035, and RCW 36.70A.020(11) by failing to
establish and broadly disseminate a public participation program in each of the 27
Citywide MHA affected neighborhoods including South Park to provide for early and
continuous public participation in the development of Citywide MHA after effective
notice in the spirit of a “bottom up” effort (WAC 365-196-010(1)(c)?
In Issue Statements 3.5 and 3.8, as originally submitted to the Board in the Petition
for Review filed on June 3, 2019, DVNPC alleged violations of RCW 36.70A.020(11) and
RCW 36.70A.140 in addition to two other statutes. In DVNPC’s Prehearing Brief, however,
there is no mention of RCW 36.70A.020(11) and RCW 36.70A.140 in their legal argument
section for Issues 3.5 and 3.8. Accordingly, the Board deems this failure to brief the two
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Seattle’s Prehearing Brief at 156-157.
Index 946.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 71 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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statutes as an abandonment of legal arguments under both RCW 36.70A.020(11) and RCW
36.70A.140.254
DVNPC states “[w]e haven’t been able to find such a [public participation] program in
the Index of Record provided by the City.” DVNPC questions “if one actually exists and the
City claims it was followed.” DVNPC asserts “[f]ailure to adopt a public participation program
and use it in the consideration of comprehensive plan amendments and development
regulations fails to comply with RCW 36.70A.035(1) and RCW 36.70A.130(2)(a) and is
clearly erroneous.” 255
In their legal argument section for Issues 3.5 and 3.8, DVNPC does not point to any
specific evidence that Seattle failed to use or follow an adopted public participation program.
DVNPC makes only the conclusory allegation that Seattle did not use or follow any public
participation program.
Seattle disputes this by saying it followed its adopted public participation program for
comprehensive plan amendments under Seattle Resolution 31117 and its public
participation program in Seattle Municipal Code Chapter 23.76 for amendments to the Land
Use Code and area-wide amendments to the Official Land Use Map.256
The Board finds and concludes that DVNPC failed to come forward with specific
evidence to satisfy its burden to prove that Seattle violated RCW 36.70A.035(1) and RCW
36.70A.130(2)(a).
Legal Issues 3.5 and 3.8 are dismissed.
Legal Issue 3.9
Did the City violate the notice and public participation provisions of RCW
36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 by failing to use notice
methods targeted at getting public participation of the marginalized populations (ftn
omitted) of South Park including low-income residents, persons of color, and nonnative English speakers?

“Failure by such a party to brief an issue shall constitute abandonment of the unbriefed issue.” WAC 24203-590(1).
255 DVNPC Prehearing Brief at 16-17.
256 Seattle’s Prehearing Brief at 153-154; the Board officially notices City of Seattle Resolution 31117 pursuant
to WAC 242-03-630(4).
254

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 72 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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DVNPC failed to provide any legal argument supporting alleged violation of RCW
36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140 under Legal Issue 3.9, and the
Board deems this to be an abandonment of this issue.257 Legal Issue 3.9 is dismissed.
C. Conclusion – Public Participation and Notice
DVNPC failed to satisfy its burden of proof to show that Seattle Ordinance Nos.
125790 and 125791 were not guided by the GMA Planning Goal in RCW 36.70A.020(11) to
encourage the involvement of citizens in the planning process. DVNPC failed to satisfy its
burden of proof to show that Seattle violated the public participation requirements of RCW
36.70A.035 and RCW 36.70A.140.
VII. FINDINGS OF FACT
1. In 2015, the Seattle City Council adopted Resolutions 31612 and 31622
establishing the City’s affordable housing objectives to provide additional housing
development capacity and create at least 6,000 net new rent- and incomerestricted housing units serving households at or below 60 percent of AMI over
ten years.
2. In October 2016, Seattle adopted the Seattle 2035 Comprehensive Plan which
anticipates growth of 120,000 new residents, 70,000 net new housing units, and
115,000 jobs by 2035.
3. The Comprehensive Plan established an “Urban Village Strategy” that
concentrates most of the anticipated housing and employment growth within
Seattle’s 6 Urban Centers and 24 Urban Villages, as compact mixed-use
neighborhoods with a variety of housing types and affordable rent levels, located
within a 10-minute walk of light rail and other very good transit.
4. In November 2017, Seattle finalized an Environmental Impact Statement (EIS) on
proposed Citywide Implementation of Mandatory Housing Affordability (MHA),
which analyzed the environmental impacts of the MHA program, assuming
housing growth of up to 100,000 units and employment growth of 115,000 jobs by
2035.
5. The EIS states that more than 45,000 of Seattle households, or about one in
seven, currently pay more than half of their income on housing, a condition
referred to as severe cost burden -- average rent for a one-bedroom apartment
has increased 35 percent over the last five years and is unaffordable by
conventional measures to a worker earning a $15 minimum wage.

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“Failure by such a party to brief an issue shall constitute abandonment of the unbriefed issue.” WAC 24203-590(1).
257

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 73 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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6. A coalition of neighborhood groups administratively appealed the MHA EIS to the
Seattle Hearing Examiner.
7. After 19 days of testimony, the Seattle Hearing Examiner affirmed the adequacy
of the MHA EIS in all aspects except for the historic resources analysis which was
remanded for certain specified additional work.
8. On February 7, 2019, Seattle issued an EIS Addendum on Historic Resources to
address the Hearing Examiner’s remand.
9. Seattle has established public participation programs for comprehensive plan
amendments, pursuant to Resolution 31117, and for land use code amendments
under Seattle Municipal Code Chapter 23.76, that include procedures to provide
for consideration of and response to public comments.
10. Notices published in advance of the February 21, 2019, City Council public
hearing on the MHA legislation mistakenly stated that final Council action was “not
anticipated to occur before March 25, 2019” and that written comments would be
accepted until that point.
11. At the official public hearing on February 21, 2019, Ira Appelman read and
submitted written comments objecting to MHA passage before the end of the
comment period.
12. Seattle corrected the mistake in the comment deadline prior to the March 18,
2019, City Council meeting when the MHA legislation was adopted; the public
was notified in advance that the expected final action date for the MHA legislation
was March 18, 2019, which exceeded the 30-day public comment period required
by city code.
13. There is no evidence that Seattle’s error in exact compliance with public
participation procedures affected the public’s ability to comment on the MHA
legislation prior to the March 18 adoption date or to participate in the February 21
public hearing.
14. Prior to adoption of the MHA legislation and in response to public comments on
the Draft MHA EIS, the City made changes to the proposed MHA legislation.
15. On March 20, 2019, Seattle enacted Ordinance No. 125790, amending the
Seattle Comprehensive Plan Growth Strategy Element, Neighborhood Plans, and
Future Land Use Map to incorporate changes to plan policies and urban village
boundaries related to Mandatory Housing Affordability.
16. On March 20, 2019, Seattle enacted Ordinance No. 125791, rezoning certain land
and modifying development standards throughout the City of Seattle in order to
increase development capacity and implement Mandatory Housing Affordability
requirements in Urban Centers, Urban Villages, and existing multifamily and
commercial zones outside of Urban Centers and Urban Villages.
17. Between May 13 and June 3, 2019, various Petitioner groups filed appeals with
the Growth Management Hearings Board seeking review of Ordinance Nos.
125790 and 125791 and a Determination of Invalidity of the Ordinances, alleging
that Seattle failed to comply with the State Environmental Policy Act and the
Growth Management Act.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 74 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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VIII.

CONCLUSIONS OF LAW

A. SEPA
1. The MHA EIS adequately describes the principal features of and alternatives to
the Comprehensive Plan Amendments adopted by Ordinance 125790.
2. The EIS complies with WAC 197-11-440(6)(d)(i) by providing an adequate
summary of existing land use plans, when appropriate, and how MHA is
consistent and inconsistent with them.
3. The alternatives evaluated in the EIS differ in the intensity and location of
development capacity increases, the pattern and amounts of housing growth, and
the size of urban village expansions.
4. Under WAC 197-11-442(4), Seattle was allowed to limit EIS content to a
discussion of alternatives which have been formally proposed or which are, while
not formally proposed, reasonably related to the proposed action.
5. The EIS analyzed a reasonable range of alternative actions that could feasibly
attain or approximate Seattle’s objectives to: increase overall production of
housing available to a broad range of households and create 6,200 net new rentand income-restricted housing units serving households at 60 percent of AMI,
while distributing the benefits and burdens of growth equitably.
6. SEPA does not require Seattle to evaluate alternatives that would not achieve
both of the City’s objectives to increase overall housing development capacity and
to create at least 6,000 net new rent- and income-restricted housing units serving
households at 60 percent of AMI.
7. Seattle reasonably chose not to analyze SCALE’s proposals for higher in lieu fees
and higher affordability requirements without upzones because substantial
evidence in the record showed that higher fees or higher affordability
requirements, without upzones, would not feasibly attain or approximate Seattle’s
objective to increase overall production of both market-rate housing and
subsidized income-restricted housing.
8. SCALE’s suggested EIS alternatives were not reasonable for this nonproject EIS.
9. Seattle’s EIS evaluated an adequate range of alternatives that satisfies the Rule
of Reason under SEPA.
10. The MHA EIS contained a reasonably thorough discussion and adequately
disclosed to City decision makers and to the public the environmental impacts
caused by text amendments outside Urban Villages and Urban Village expansion
areas.
11. The MHA EIS provides a reasonably thorough discussion of environmental
impacts and adequately disclosed significant aspects of the probable
environmental consequences on Aesthetics so that City officials could make an
informed decision and reasoned choice among alternatives.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 75 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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12. The MHA EIS and Addendum together provided a reasonably thorough
discussion of environmental impacts and adequately disclosed significant aspects
of the probable environmental consequences on historic resources so that City
officials could make an informed decision and reasoned choice among
alternatives.
13. SEPA’s mandate to analyze significant adverse environmental impacts is limited
to the “Elements of the Environment” listed in WAC 197-11-444.
14. SEPA does not require that an EIS analyze purely economic, social policy,
socioeconomic, or other nonenvironmental impacts.
15. The Board cannot review Petitioners’ arguments that the EIS contains an
inadequate discussion of economic displacement or cultural displacement
because they are nonenvironmental impacts.
16. Seattle chose to include some analysis of socioeconomic impacts in the EIS but
any perceived inadequacies in this voluntary analysis cannot be the basis for
finding a violation of SEPA’s environmental disclosure mandates since SEPA
does not require such analysis of nonenvironmental impacts.
17. Housing is an element of the environment so an EIS should analyze significant
adverse housing impacts (e.g., number of high, middle, or low-income housing
units provided or eliminated).
18. Seattle conducted a detailed analysis to estimate housing demolition impacts for
all EIS alternatives using two alternate methodologies -- historic trends and parcel
allocation modeling.
19. SCALE presented conclusory statements about housing demolitions without any
quantitative analysis, and SCALE failed to adduce specific evidence showing that
the City’s physical demolition analyses were deficient.
20. The EIS contains a reasonably thorough discussion of potential housing units
provided and eliminated under the EIS action alternatives using two alternate
methodologies for estimating potential demolitions by modeling demolition
through allocating growth to parcels and by estimating demolition based on
historic trends.
21. The MHA EIS provided a reasonably thorough discussion of environmental
impacts and adequately disclosed significant aspects of the probable
environmental consequences on public facilities and services so that City officials
could make an informed decision and reasoned choice among alternatives.
22. The MHA EIS provided a reasonably thorough discussion of environmental
impacts and adequately disclosed significant aspects of the probable
environmental consequences on trees so that City officials could make an
informed decision and reasoned choice among alternatives.
23. The EIS discussion of cumulative impacts was reasonably thorough and
adequate.

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 76 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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24. The MHA EIS, together with Historic Resources Addendum, satisfied the Rule of
Reason, was adequate and complied with the requirements of RCW 43.21C.030,
the State Environmental Policy Act.
B. Inconsistency and GMA Planning Goals
25. Petitioners have failed to satisfy their burden of proof to demonstrate that Seattle
Ordinance Nos. 125790 and 125791 are in conflict with and not guided by the
GMA Planning Goals for Open Space and Recreation (RCW 36.70A.020(9)),
Public Facilities and Services (RCW 36.70A.020(12)), and Historic Preservation
(RCW 36.70A.020(13)).
26. Petitioners have failed to satisfy their burden of proof to demonstrate that Seattle
Ordinance Nos. 125790 and 125791 violate the requirements of RCW
36.70A.130(1)(d) that “[a]ny amendment of or revision to development regulations
shall be consistent with and implement the comprehensive plan.”
C. Public Participation and Notice
27. Petitioners have failed to satisfy their burden of proof to demonstrate that Seattle
Ordinance Nos. 125790 and 125791 violate the public participation requirements
of RCW 36.70A.020(11), RCW 36.70A.035, and RCW 36.70A.140.
28. Seattle Ordinance Nos. 125790 and 125791 are in compliance with the Growth
Management Act.
29. Errors in exact compliance with the established program and procedures shall not
render the comprehensive land use plan or development regulations invalid if the
spirit of the program and procedures is observed.
30. In enacting Ordinance Nos. 125790 and 125791, Seattle followed the spirit of the
public participation program and procedures.
31. DVNPC failed to satisfy its burden of proof to show that Seattle Ordinance Nos.
125790 and 125791 were not guided by the GMA Planning Goal in RCW
36.70A.020(11) to encourage the involvement of citizens in the planning process.
32. DVNPC failed to satisfy its burden of proof to show that Seattle violated the RCW
36.70A.035 requirement to include notice procedures that are reasonably
calculated to provide notice of proposed amendments to comprehensive plans
and development regulations to individuals, property owners, and organizations.
33. DVNPC failed to satisfy its burden of proof to show that Seattle violated the RCW
36.70A.140 requirement to “establish and broadly disseminate to the public a
public participation program,” including procedures that provide for “consideration
of and response to public comments.”

FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 77 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253

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IX. ORDER
Based upon the Petitions for Review, the legal arguments and evidence submitted by
the parties, the goals and requirements of the State Environmental Policy Act and the
Growth Management Act, prior Board orders and appellate court case law, and having
deliberated on the matter, the Board orders:
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The City of Seattle Final Environmental Impact Statement on Citywide
Implementation of Mandatory Housing Affordability, including the Historic
Resources Addendum, is adequate and complies with the State Environmental
Policy Act,
City of Seattle Ordinance Nos. 125790 and 125791 comply with the Growth
Management Act, and
This case is closed.

SO ORDERED this 30th day of December 2019.
_________________________________
Raymond L. Paolella, Presiding Officer

_________________________________
Deb Eddy, Board Member

_________________________________
Cheryl Pflug, Board Member
Note: This is a final decision and order of the Growth Management Hearings Board
issued pursuant to RCW 36.70A.300.258

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Should you choose to do so, a motion for reconsideration must be filed with the Board and served on all
parties within ten days of mailing of the final order. WAC 242-03-830(1), WAC 242-03-840. A party aggrieved
by a final decision of the Board may appeal the decision to Superior Court within thirty days as provided in
RCW 34.05.514 or 36.01.050. See RCW 36.70A.300(5) and WAC 242-03-970. It is incumbent upon the
parties to review all applicable statutes and rules. The staff of the Growth Management Hearings Board is not
authorized to provide legal advice.
FINAL DECISION AND ORDER
Case No. 19-3-0011c
December 30, 2019
Page 78 of 78

Growth Management Hearings Board
1111 Israel Road SW, Suite 301
P.O. Box 40953
Olympia, WA 98504-0953
Phone: 360-664-9170
Fax: 360-586-2253