The back-and-forth between the City of Seattle and Queen Anne Community Council over accessory dwelling units continues, as a March 25 hearing looms and the potential dismissal of a portion of QACC’s appeal remains uncertain.

QACC’s appeal of the Oct. 4 final environmental impact statement for proposed regulation changes that would increase the construction of accessory dwelling units contends that the city did not adequately address the effects on the characteristics of each neighborhood or the cumulative impact when implemented along with the Mandatory Housing Affordability program and other legislation.

The Seattle City Council filed a motion to partially dismiss the appeal on Nov. 30, in regard to arguments of due process and certain claims in the appeal the city states were addressed following the Determination of Non-Significance appeal that resulted in the development of an environmental impact statement.

The Queen Anne Community Council is conceding that the City of Seattle may have met its public outreach requirements for developing legislation addressing accessory dwelling units, but challenges arguments that portions of its appeal have already been addressed.

Because the final environmental impact statement identifies and addresses a preferred option for expanding the development of accessory dwelling units, QACC argues, its challenge is very different than with the DNS and does not fall under res judicata.

The Seattle City Council’s latest response reasserts that QACC failed to argue for the analyses it wanted in the environmental impact statement when it was appealing the DNS; QACC won that appeal in 2016, which is why the city had to perform an EIS.

“In its Response, Appellant advances distinctions between the DNS appeal and the current appeal of the EIS to try to demonstrate that the subject matter and causes of action are different such that res judicata does not apply,” according to the city’s response on Dec. 21. “However, Appellant relies on an overly narrow theory of res judicata that is not supported by case law. The distinctions upon which Appellant relies are ultimately irrelevant to the analysis of claim preclusion under res judicata.”

The city also argues that the State Environmental Policy Act (SEPA) directs agencies to consider alternatives that could accomplish the proposal’s objectives, and that QACC incorrectly asserts that the preferred alternative creates significant expanded and more intense development than what was considered in the DNS.

“In fact, the preferred alternative includes the same principal features as the proposal in the DNS,” the city states. “Indeed several of the purported distinctions between the proposal in the DNS and the preferred alternative that the Appellant alleges in its Response are actually not differences at all.”

The DNS considered floor areas of more than 1,000 square feet and allowing up to two ADUs, the city argues, and all other issues brought up by QACC either do not contribute to greater significant impacts or are designed to minimize them, such as ensuring the floor area ratio (FAR) does not exceed 50 percent of the lot area.

If the hearing examiner rules in the city’s favor, there would still be arguments left for QACC and its legal counsel to make against the FEIS during its March 25-29 hearing.

That includes that the FEIS failed to consider an adequate range of alternatives with a lower environmental impact, deficiencies in its analysis of transportation and parking impacts, residential requirements, owner-occupancy rules alternatives, and impacts to public utilities and services.

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