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BEFORE THE HEARING EXAMINER CITY OF SEATTLE In the Matter ofthe Appeal of QUEEN ANNE Hearing Examiner File COMMUNITY COUNCIL, W-18-009 of the adequacy of the Final Environmental ORDER ON Impact Statement (FEIS) issued by the MOTION FOR Seattle City Couneil PARTIAL DISMISSAL On October 18, 2018, the Queen Anne Community Council (“Appellant”) filed a “Notice of Appeal of ADU-FEIS Final Environmental Impact Statement.” On November 30, 2018, Respondent Seattle City Council City”) filed a motion for partial dismissal. Appellant filed an ‘opposition brief on December 14, 2018, and the City filed a reply on December 21, 2018. For purposes ofthis decision, all section numbers refer to the Seattle Municipal Code ("SMC" or “Code”) unless otherwise indicated. Having considered the evidence in the record, the Deputy Hearing Examiner (“Examiner”) enters the following decision and order. ‘actual Background 1, The Code defines an “acessory dwelling unit” (“ADU") as one or more rooms that: 1)"are located within an owner-occupied dwelling unit, or within an accessory stucture on the same lot as an owner-occupied dwelling unt:” 2) meet certain Code standards; 3) “are designed, aranged, and intended to be occupied by not more than one household a living accommodations independent from any other houschold:" and 4) “are so occupied oF vacant A Detached Accessory Dwelling Unit (“>DADU") is secondary unit located in 4 separate structure from the principal dwelling unit? 2. In 2016, the Office of Planning and Community Development (“OPCD”) prepared a draft ‘ordinance that would amend existing land use code provisions on ADUs and DADUs. That proposal was deseribed as Propos{ing} to change regulations in the Land Use Code to remove ‘regulatory barriers tothe creation of ADUs in single-family zones... The ‘proposal involves several Land Use Code changes, including allowing two ADUs on some lots, changing the existing off-street parking and ovmer- ‘occupancy requirements, and changing some development standards that regulate the size and location of DADUs? 5 SMC23 4A 002 “A and SMC23.84A.002“R 2 iy of Sete, Accessory Dwelling Unis Fil Environmental Impact Siotement a 12 (Oxober (FBS. Sia W-18-009 ORDER ON MOTION FOR PARTIAL DISMISSAL Page 208 3. The Cty issued a Determination of Nonsignificance (DNS) on the proposal as part of is ‘environmental review process under the State Environmental Policy Act (SEPA). The DNS was timely appeaed by the same Appellant as in this matter, the Queen Anne Community Council. Hearing Examiner Sue Tanner reversed the DNS and remanded the matter to OPCD, requicing an Environmental Impact Statement (EIS) be prepared.* Examiner Tanner determined that: +The proposed legislative changes would create a regulatory environment that is likely to yeerate entirely diferent impacts than considered in the [DNS process, what was refered toby an expert witness as “a fundamental change inthe land use form.” + The evidence showed that the indirect impacts of the legislation would adversely affeet housing and cause displacement of populations. "As a significant adverse environmental impact, Examiner Tanner required these pacts tobe studied in an EIS in the context of the developmenieconomic environment that would be eeated bythe proposal + The City’s documents didnot accurately depet the impact of the increased height, bulk, and scale that would be erated by the proposel. Examiner “Tanner ordered that on remand, the analysis of the height, bulk, and scale impacts be done in the context of the atual development envionment create by the legislation and include renderings that accurately represent atleast the maximum height, bulk, and scale that could be constructed on at Jeast one fll block and include los as smal as 3200 square fect. +The determination of parking impacts was not based on sufiient evidence to evaluate thse impacts, and the Appellant demonstrated more than a ‘moderate impact on parking, and therefore it needed to be examined in an EIS + The evidence in the rood was insufficient to evaluate whether public services and facilites, specifically the road end utility systems, including Stormwater, ae sized to suppor the likely increase in density and attendant ‘nease in impermeable surfaces tat could result rom the peopossl. The "Examiner required that that issue be studied in an EIS.> 4. The Seattle City Council issued a draft EIS on May 10, 2018, and a Final EIS (“FEIS”) on October 4, 2018. The Appellant fled an appeal of the adequacy of the FEIS on October 18,2018. Standard of Review Rule 3.02(a) ofthe Hearing Examiner Rules of Practice and Procedure (“HER”) provides that an appeal (in whole or in part) “may be dismissed ifthe Hearing Examiner determines that if fails to ‘ Inahe Mauer ofthe Appel of Oucen Anse Community Coun, W-16-004 a 14 (Dee. 13,2016) Sia.at tts weis.009 ORDER ON MOTION FOR PARTIAL DISMISSAL, Page 3018 state a claim for which the Hearing Examiner has jurisdiction to grant relief ori without merit on its face, frivolous, or brought merely to secure delay." A mation to dismiss i treated as a motion for summary judgment when matters outside the pleadings are included with the motion and considered by the decision maker. Sea-Pac v. United Food and Commercial Workers Local Union “#4, 103 Wn.2d 800, 802, 699 P.2d 217 (1985). The City included materials in its motion that are ‘outside the pleadings, and therefore the motion will be treated as a motion for patil summary judgment ‘Quasi-judicial decision makers, such as the Examiner, may dispose ofan issue summarily where there is no genuine issue of material fact. ASARCO, Inc. v. Air Quality Coalition, 92 Wo.24 688, 696-97, 601 F.2d 501 (1979); Kettle Range Conserv. Grp. ¥. Department of Nat, Res, 120 Wa, ‘App. 434, 456, 85 P3d 894 (2003). HER 1.03 (c) states that for questions of practice and procedure not covered by the HERS, the Examiner “may look to the Superior Court Civil Rules for guidance.” The moving party must demonstrate the absence ofa factual dispute, and al facts and reasonable inferences must be considered “ina light most favorable to the nonmoving party.” City of Lakewood v. Pierce Cy., M44 Wa.2d 118, 125,30 P.2d 446 2001) (citations omitted). Once the moving party demonstrates the absence of an issue of material fact, the burden shifls to the rnonmoving party to “set forth specific fats showing that there is a genuine issue for {hearng].” CR 56), Avaly ‘The City asserts challenges to three types of claims contained in Appellants Notice of Appeal 1. Claims alleging process violations or procedural due process claims (Appellant's Claim $2.1); 2. Claims Appellant raised or should have raised when Appellant appealed the DNS. for the subject proposal and are thus barred by the doctrine of res judicata— specifically, claims challenging the cumulative impacts of the proposal, impacts to ‘open space and tree canopy coverage, and loss of historic buildings; (Appellant's Claims $Y 2.3, 2.4, 2.12, 2.13, 2.15); and 3. Claims that are vague, overly broad, and unspecified. (Appellant's Claims §§ 2.2, 23,219), Each of the City’s grounds are considered below, paraphrased in italics, 1X The Examiner should dismiss Appellant's procedural due process claim ‘challenging the fairness of the process. (Appellant's Claim § 2.1) In response to the City’s motion, the Appellant has voluntarily withdrawn Claim $2.1. The Examiner will not decide the merits of the argument brought by the City. Claim § 2.1 will be dismissed.