The following appeal of the determination of non-significance (DNS) regarding the proposed draft tree ordinance D7 by the Seattle City Council was filed on Sept 13, 2018. On Sept 24, 2018 the Department of Planning and Development withdrew the DNS.
BEFORE THE HEARING EXAMINER
FOR THE CITY OF SEATTLE
In Re: Appeal by TreePAC, Greenwood Exceptional Trees, SCALE (Seattle Coalition for Affordability Livability and Equity), Beacon Hill Council Seattle, Fremont Neighborhood Council, Mt Baker Community Council, SUN (Seniors United for Neighborhoods), University District Council, and Wallingford Community Council, of the August 23, 2018 Determination of Non-Significance by Chanda S. Emery AICP, Senior Planner, Department of Construction and Inspections. NOTICE OF APPEAL Non-Project Action Amending Seattle Municipal Code (SMC), including repealing and replacing Chapter 25.11
Appellants are public interest and community based organizations in Seattle with an interest in working with the City of Seattle to improve the structure, implementation and effectiveness of the City’s codes regarding the protection and restoration of the City’s urban forest and its functions expressed as tree density, health, diversity, and distribution.
Each appellant will be adversely impacted by enactment of the proposed ordinance notwithstanding the determination by the responsible official that it is not likely to have any significant adverse environmental impacts. Together Appellants represent many thousands of Seattle residents who will be significantly and adversely impacted by the proposed non-project action amending Seattle Municipal Code (SMC), including repealing and replacing Chapter 25.11.
II. APPELLANT INFORMATION
1. TreePAC: TreePAC is a non-profit corporation. It is the mission of TreePAC to seek adoption of legislation that would accomplish the goals of tree retention, tree protection and tree replacement that would maintain all the things that make Seattle an essential for a livable community, habitat for nature, and abundant trees.
Representative: Steve Zemke, 2131 N 132nd St, Seattle, WA 98133
2. Greenwood Exceptional Trees: blurb
Representative: Ivy Durslag, address/phone
3. Coalition for a Stronger Tree Ordinance blurb
Representative: Heidi Siegelbaum, address/phone
4. Friends of Seattle’s Urban Forest blurb
Representative: Michael Oxman, address/phone
5. SCALE (Seattle Coalition for Affordability Livability and Equity), SCALE is a non profit corporation organized to advocate for the affordability, livability, and equity of all Seattle neighborhoods.
Representative: David Ward, address/phone
6. Beacon Hill Council Seattle, [short blurb],
Representative: Mira Latosezk, address/phone
Representative: Maria Batayola,
7. Eastlake Community Council, blurb
8. Fremont Neighborhood Council, Appellant FNC is a non-profit corporation incorporated in 1980 “To promote the orderly and comprehensive enhancement, preservation and improvement of the Fremont neighborhood” (North 50th Street on the north, Stone Way North on the east, Lake Union and the Lake Washington Ship Canal on the south and 8th Avenue Northwest on the west.
Representative: Toby Thaler, 4212 Baker Ave. NW, Seattle WA 98107
9. Mt Baker Community Council, [short blurb],
Representative: Eve Keller [address/phone
10. SUN (Seniors United for Neighborhoods), [short blurb],
Representative: Lisa Coon, [address/phone
11. University District Council, [short blurb],
Representative: David Ward, [address/phone,
12. Wallingford Community Council, [short blurb],
Representative: Miranda Berner, address/ 724-622-4586
All appellants prefer to receive communications from the Office of Hearing Examiner by email attachment at the indicated addresses.
In this appeal, the above entities are referred to collectively as “Appellants.”
III. DECISION BEING APPEALED
1. Decision Appealed: Appellants appeal the City of Seattle Department of Construction and Inspections’ (DCI) Determination of Non-Significance (DNS) dated August 23, 2018. The DNS is attached, along with the notice of decision. The action being supported by the DNS is “a non-project action that consists of the adoption of legislation to amend the Seattle Municipal Code including repealing and replacing Chapter 25.11, Tree Protection.” DNS at 1. The specific ordinance amendments being reviewed by the DNS is not explicitly stated, but the version published concurrently with the DNS is a draft ordinance found at the City Council Planning, Land Use, and Zoning (PLUZ) Committee web page identified as “LEG tree regulations updates ORD D7” (in the upper left corner). https://www.seattle.gov/council/meet-the-council/rob-johnson/trees-for-all
2. Property address of decision being appealed: By its own terms, the proposal is “applicable to all [land use] zones in the City.” DNS at 1.
3. Elements of decision being appealed:
Adequacy of conditions
EIS not required
Other (as set forth in more detail in Section V below)
4. Timeliness of Appeal:
The City’s Notice is Attachment A; the deadline to appeal is September 13, 2018.
IV. PROCEDURAL BACKGROUND
For two decades the Seattle City Council has considered proposals to amend Seattle’s Land Use and Zoning Code and Tree Protection Code to update regulations dealing with tree conservation, removal, and related regulations. The failure of the current regulations, both content and implementation, to protect trees and their associated benefits was documented in a two-phase “Tree Regulations Research Project” concluding with a final report and internal City presentation on March 27, 2017. That report was listed in the bibliography of the EIS for the Mandatory Housing Affordability program (MHA EIS)—“City of Seattle. 2017a. Tree Regulations Research Project—Phase II Final Findings and Recommendations. March 27, 2017”—but was not explicitly referenced in the text of the EIS.
Mayor Tim Burgess issued “Executive Order 2017-11: Tree Protection” on October 13, 2017, directing the Executive agencies to take actions to improve City tree protections, referencing the research project obliquely: “recent research showed that existing urban tree protections and enforcement practices related to trees must be strengthened in order to protect Seattle’s canopy coverage.” The order explicitly states that “MHA implementation must work in partnership with the livability promises of the Housing Affordability and Livability Agenda, including urban forestry efforts to preserve and enhance access to urban trees.” Tree canopy issues are an issue in the pending appeal of the City’s MHA EIS, HE No. W-17-006.
The City Council PLUZ committee published a framework for an overhaul of the tree ordinances in early July. No draft ordinance was published with the framework but a schedule was included indicating an intent to “Publish notice of State Environmental Policy Act (SEPA) threshold determination regarding tree regulation legislation around the end of July.” (emphasis in original.
The specific ordinance being reviewed—and the subject of the DNS being appealed—is not explicitly cited in either the DNS or the checklist. A draft ordinance was first made available to the public on August 1 (labeled version “D5B”). A SEPA checklist was prepared and signed on August 14, 2018 by a planner at the City Council Central Staff. On or about August 23, Ordinance Language for Repeal and Replacement of SMC 25.11 was published at the PLUZ Committee’s “Trees for All” page, https://www.seattle.gov/council/meet-the-council/rob-johnson/trees-for-all. The content of this draft (version “D7”) is consistent with the description of the proposed action found in the DNS at p. 2.
The Council PLUZ Committee held a single public hearing on the proposed ordinance on September 5.
V. APPEAL INFORMATION
1. What is your interest in this decision?
Appellants are community and neighborhood organizations who represent thousands of Seattle residents who will be significantly and adversely impacted by the proposed revisions to the tree ordinance. Their respective interests in the conservation of Seattle’s urban forest are enumerated in the Appellant Information section above.
Members of Appellants live, own property, and work in Seattle and will be directly, indirectly, and cumulatively impacted by reduced tree density, health, distribution and function of trees as well as by the loss of particular individual (“exceptional”) trees and groves as defined and protected under current SMC Chapter 25.11. These impacts will be adverse and significant, and will reduce the livability of Seattle’s neighborhoods. The proposed rule creates a tree cutting and mitigation system which will facilitate large tree cutting by developers and property owners. These impacts will also result in an increase in public expenditures for energy and stormwater utilities because tree removal and large tree replacement with smaller trees—on or off site—will increase temperature and stormwater, including associated flooding, an expense born by all taxpaying residents of Seattle. Seattle ranks 10th in the nation for Heat Island Effect and reducing tree canopy will accelerate this adverse impact. The proposed ordinance will move Seattle away from its stated goals of environmental justice and equity, away from its goal of becoming carbon neutral by 2050 (City Council Resolution 31447), and in conflict with the City’s climate action plan (2012) recommended actions, to “protect and enhance natural systems.”
2. What are your objections to the decision?
A. Cumulative Impacts Not Adequately Evaluated
1. No Consideration of Simultaneous Related City Actions
In 2014, in response to concern about the impacts of growth on housing affordability, livability, and equity issues, Mayor Murray appointed a committee to develop recommendations for policy actions the City could take to respond to the problems. This committee was called the Housing Affordability and Livability Agenda, or HALA, committee. The City is currently undertaking two major land use actions resulting from City Executive and Legislative decisions to implement specific recommendations:
• Accessory Dwelling Unit (ADU) proposal. Initially the City issued a DNS for this proposed action to relax the standards for construction of ADUs and detached ADUs (DADUs) throughout the City’s Single Family (SF) zones. At the conclusion of an appeal of that DNS the City Hearing Examiner determined that “The record demonstrates that the challenged DNS was not based on information sufficient to evaluate the proposal’s impacts. It is therefore clearly erroneous and must be reversed.” Hearing Examiner Findings and Decision in number W-16-004, December 13, 2016, p. 14. The City published a DEIS in May 2018 to inform the proposed action.
• Mandatory Housing Affordability (MHA). As noted above, the adequacy of the EIS for the City’s mandatory housing affordability proposal—a large city-wide up zone—is currently being challenged at the Office of Hearing Examiner, appeal number W-17-006.
The cumulative affects of these two potential decisions have not been addressed in any of the documents related to the proposed ordinance including its SEPA checklist and the DNS being appealed here. Moreover, neither the DEIS for the ADU proposed action, nor the MHA FEIS refer to each other, or to the instant tree ordinance proposal for purposes of describing impacts or mitigation for cumulative effects on urban forest resources. The checklist and DNS at issue here does not mention or refer to either the ADU proposed action or the MHA proposed action.
Seattle’s SF zones are the highest non-park, non-open space lands in the City in numbers of trees and tree canopy coverage. The DEIS acknowledges this at p. 4-46, in the description of the affected environment. In the impact assessment sections, there is one reference to SMC 25.11, including the current provision regarding “exceptional” trees. P. 4-53. There is no reference to the City’s proposal addressed by the DNS at issue here.
An FEIS for the ADU/DADU proposal is currently in preparation by the City Council’s Central Staff acting as lead agency.
2. No Consideration of Short Term Significant Cumulative Impacts
The DNS consistently uses the term “long-term cumulative effects” in its analysis of the potential for significant impacts. The definition of “significant” is not limited to “long-term.” WAC 1978-11-794; SMC 25.05.794. This error is a major defect when considering impacts on urban forest resources; as the DNS acknowledges at least obliquely, when removed it can take many years to replace those values even assuming they can be replaced with similar quality resources and in the same geographical location.
B. Improper Segmentation of Tree Provisions from Other HALA Committee Report Driven Proposed Actions
Both the ADU and MHA proposed actions are the results of a list of recommended actions by the housing affordability and livability agenda (HALA) committee and its report of the same name made public by Mayor Ed Murray on July 13, 2015. The City’s segmentation of HALA recommendations for implementation (e.g., enacting them into City ordinances) into separate decision processes with separate SEPA reviews evades assessment of cumulative impacts of the three actions on urban forest resources. The segementation of overlapping actions also evades consideration of a range of alternatives to meet the respective proposals’ objectives with lower environmental impact.
C. Inaccurate and Incomplete Description of Current Conditions and the Likely Impacts of the Proposed Action
1. The DNS refers to “other information on file in the responsible department” (DNS p. 8) as part of the basis for their decision but does not provide any bibliography or links for the public to see those documents.
2. The DNS bases its conclusion in part on “the experience of the lead agency with review of similar legislative actions.” The DCI is not a natural resource management agency; it is a development review and permitting agency. The City agency with expertise on urban forest issues is
the Urban Forestry Commission, some of whose recommendations were to a large extent ignored in the preparation of the proposed ordinance. SMC 3.72; https://www.seattle.gov/urbanforestrycommission
3. The DNS is rife with conclusory statements that the impacts of the proposed action will not be significant, but fails to describe with particularity how this is so.
4. The DNS fails to evaluate the impacts of removing protections for defined exceptional trees (SMC 25.11).
5. The DNS states that “planting several smaller trees may take several years to accomplish comparable value as the larger cut tree.” The DNS fails to acknowledge or take into account in its impact assessment that it takes as many years to replace the canopy volume lost as the removed tree is old. Also lost is the additional canopy growth that would have occurred if the tree had not been cut down.
6. The DNS fails to evaluate the impacts from removing all limits on the number of trees that can be cut down in a year.
7. The DNS fails to evaluate impacts from allowing all trees to be removed on undeveloped lots.
8. The DNS admits that “Large trees that are cut down permanently take away the ecological functions and values that the large tree had provided when it was a living tree” followed by the conclusion that an “outcome [that] would be comparable (similar or nearly the same in overall value) to the functions and values that would be lost” is a “long-term” proposition but fails to acknowledge these facts constitute a significant adverse short and long term impact.
9. The DNS states that “The proposal would not prevent the possibility of large trees from being cut down” Probable increased loss of large trees, particularly native trees and tree groves, would severely reduce habitat for existing wildlife and migratory birds, that depend on large trees, native trees and tree groves.
10. The DNS does not evaluate the net loss of canopy over time by not requiring replacement of trees as long as the canopy is not reduced below the zone goal. The canopy zone value in the proposed ordinance is an average across the zone.
11. The DNS fails to assess the likely impacts of the new ordinance on the geographic distribution of trees and tree canopy among the City’s zones and neighborhoods, including disparate economic and racial impacts.
12. The DNS fails to assess increased heat island impacts likely to occur as a result of the geographic shifting of trees and canopy away from urban villages and other rapidly densifying areas.
13. The DNS does not take into account that canopy loss is defined as area in the draft, yet canopy volume is a much more accurate measure of ecological services that trees provide, including reduction in stormwater runoff and cleaning the air of pollutants.
14. The DNS provides no numbers of expected trees to be removed or cut down or expected replacement values. This proposal makes it easier for developers to remove trees and there is no evaluation of development impacts on tree and canopy removal such as by major city zoning and development decisions like ADU and MHA ordinances being passed.
15. The DNS does not evaluate the increase in impermeable surfaces that will increase stormwater runoff as a result of trees being removed.
16. The DNS does not mention or assess increased health impacts as a result of increased removal of trees under the proposed action.
17. The DNS does not include in its impact assessment the history of failure by DCI and its predecessors to enforce SMC 25.11.090 and other sections of the City’s tree ordinances.
18. The DNS relies on the City’s 2016 LiDAR study which does not accurately measure the attributes of Seattle’s urban forest necessary to support the City’s assessment of likely impacts from the proposed action.
19. DNS does not not discuss impact of the proposed ordinance using canopy goals for 2 zones that are less than what 2016 LiDAR study said was current canopy cover. Institutional goal 20%, LiDAR study 25%: multifamily goal 20%; LIDAR study 23%. This over time would contribute to canopy loss based on the way the ordinance is drafted.
20. The proposed action weakens tree protection the most where most of Seattle’s “urban forest” exists – single-family zoned lots. The City proposed changes places additional burdens on existing home owners—an impact the DNS fails to acknowledge or assess—it removes all barriers to tree removal from new home builders. The proposed action allows new home builders to clear-cut established groves and significant trees by repealing SMC 23.44.008(I).
21. The DNS speculates that “probable increased canopy cover would lead to better plant and animal habitat functions and values…” There is no analysis of how this conclusion is more likely to occur than a decrease in canopy.
22. DNS does not discuss possible technical errors, compliance errors and possible gaming of a tree permit system based on property owners calculating canopy cover for trees to be removed and canopy cover of a lot. Including public right of way trees in calculation of property owners canopy may be a legal problem since they do not own the right of way, the city does.
23. DNS does not discuss why the ordinance uses canopy cover figures for tree replacement that differs significantly from a similar table used by the city for Green Factor using same size trees.
D. Inaccurate and Incomplete Description of Mitigation
1. The DNS “anticipates” many laudatory results without reference to data or specific analyses, and fails to describe the City’s current level of monitoring of activities—or lack thereof—affecting tree canopy resources.
2. DNS does not discuss that tree permit costs and tree replacement costs are absent from the proposed ordinance. This makes it difficult to determine whether the permit and replacement system can pay for itself, including operation and enforcement costs. Economic costs of program to public will be a factor in public acceptance and compliance.
3. The DNS admits: “Increased enforcement of the new tree regulations could occur, but it would require additional funding for enforcement.” DNS at 4 (emphasis added). Whether or not the lack of impacts is dependent on specific program funding is a deficiency in the impact analysis, and the uncertainty of funding is likely to result in more significant impacts than the DNS already fails to address.
VI. RELIEF REQUESTED
Appellant requests that the Hearing Examiner vacate the August 23, 2018 Determination of Non-Significance with instructions to DCI to prepare an Environmental Impact Statement EIS to adequately address the environmental impacts and mitigation for a reasonable range of alternatives
to meet the objective of conserving and increasing Seattle’s urban forest and associated ecosystem services.
Filed on behalf of the Appellants this 13th day of September, 2018.
Steve Zemke, President of TreePAC
Toby Thaler, WSBA 8318
Counsel for Appella