IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ESCALA OWNERS ASSOCIATION, ) No. 83037-6-I ) Appellant, ) ) DIVISION ONE v. ) ) CITY OF SEATTLE; JODI ) PATTERSON O’HARE; G4 CAPITAL ) SEATTLE HOLDINGS, LLC, 1921-27 ) FIFTH AVENUE HOLDINGS 591683; ) 1921-27 FIFTH AVENUE HOLDINGS ) LLC, ) ) UNPUBLISHED OPINION Respondents. ) )
MANN, J. — This case is about the City of Seattle’s review and approval of a 48-
story mixed use building in the downtown core (project) proposed by Jodi Patterson
O’Hare, G4 Capital Seattle Holdings, LLC, 1921-27 Fifth Avenue Holdings 591683, and
1921-27 Fifth Avenue Holdings LLC (Applicants). We are asked to determine whether
the City’s review process complied with Washington’s State Environmental Policy Act of
1971 (SEPA), ch. 43.21C RCW.
The owners of an adjacent condominium, Escala Owners Association (Escala),
appeal a decision by the King County Superior Court affirming the City hearing
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83037-6-I/2
examiner’s determination that the City complied with SEPA. Escala argues that: (1) the
City erred by adopting an existing 2005 environmental impact statement (EIS) as part of
its SEPA review, (2) the City erred by relying on addenda as part of its SEPA review of
the project, and (3) that the project’s EIS was inadequate. We affirm.
I. SEPA PROCESS
Before addressing the facts specific to this case, we first provide a brief overview
of the SEPA process. SEPA requires the analysis and disclosure of probable significant
environmental impacts of a proposal. WAC 197-11-060(4). A proposal may either be a
particular development proposal (a project action), or a legislative or policy change (a
nonproject action). WAC 197-11-704. The first step in the SEPA process is for an
agency to determine whether a proposal will “significantly [affect] the quality of the
environment.” RCW 43.21C.030(C). This step is known as a “threshold determination.”
RCW 43.21C.033; WAC 197-11-310. A threshold determination produces either a
determination of significance (DS) or a determination of nonsignificance (DNS). WAC
197-11-310(5).
If an agency determines that a proposal may have significant adverse
environmental impacts, it issues a DS. WAC 197-11-360. Issuance of a DS triggers the
requirement that the agency prepare an EIS that includes an analysis of alternatives to
the proposal. RCW 43.21C.030; WAC 197-11-736. If an agency determines that a
proposal will not significantly affect the environment, it issues a DNS and an EIS is not
required. WAC 197-11-340. 1
1 While not relevant here, an alternative threshold determination is the “mitigated determination of non-significance,” or “MDNS,” which involves changing or conditioning a project to eliminate its significant adverse environmental impacts. WAC 197-11-350. A MDNS does not require promulgation of a formal EIS.
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Preparing an EIS requires several steps. The agency first invites public
comments on the scope of the EIS. Scoping involves identifying probable significant
adverse impacts and reasonable alternatives. WAC 197-11-408. The agency then
prepares a draft EIS that it must circulate to the public and affected agencies for
comment. WAC 197-11-400 to -455; WAC 197-11-460; WAC 197-11-500 to -550. The
agency must then prepare a final EIS that addresses and responds to the comments
received. WAC 197-11-560.
Instead of preparing a new EIS for every proposal, an agency may also rely on
“existing environmental documents,” including an EIS prepared for an earlier proposal,
to provide analysis. RCW 43.21C.034; WAC 197-11-600. SEPA allows adoption of
existing environmental documents where the proposal currently being reviewed is either
the same as, or different than, the proposal previously analyzed. WAC 197-11-600(2).
If additional analyses is necessary, the agency can prepare an addendum “that adds
analysis or information about a proposal but does not substantially change the analysis
of significant impacts and alternatives in the existing document.” WAC 197-11-
600(4)(c). The agency must prepare a supplemental EIS (SEIS) if there are “substantial
changes so that the proposal is likely to have significant environmental impacts,” or
there is “new information indicating a proposal’s probable significant adverse
environmental impacts.” WAC 197-11-600(4)(d)(i), (ii).
II. FACTS
A. Downtown EIS
In January 2005, the City issued an EIS for a nonproject proposal to change
zoning requirements for a portion of the downtown office core (Downtown EIS). Along
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with a “no action alternative,” the Downtown EIS examined four alternatives that allowed
for a significant increase in height and density for downtown development. The
Downtown EIS identified and analyzed a range of environmental impacts that could
arise from an increase in density. Topics addressed included: housing, land use,
height, bulk, and scale, employment, transportation, and parking. The Downtown EIS
recognized that the change in zoning would result in a major change to downtown land
uses:
Under all alternatives if forecasted development occurs, land uses in the study area would be significantly transformed by the increased density of residential and commercial development. This transformation is interpreted to be consistent with the City’s Comprehensive Plan and neighborhood plans for the study area and is not interpreted to be a significant unavoidable adverse impact.
After the issuance of the Downtown EIS, the City adopted new zoning for the
downtown core consistent with the preferred alternative considered in the EIS. The
zoning for the area at issue was changed to Downtown Office Core 2 (DOC 2), which
allows a maximum height of 550 feet for structures with residential uses. SMC
23.49.008(A)(3).
Since 2005, the City has repeatedly adopted the Downtowns EIS, along with
project specific SEPA addenda, as part of its SEPA review of specific downtown
residential, office, commercial, and hotel development projects.
B. Escala Condominium
In 2009, construction of the Escala Condominiums was completed. Escala is a
30-story residential tower with over 400 residents located at 1920 4th Avenue (the
corner of 4th Avenue and Virginia Street). An alley runs behind Escala, connecting
Virginia and Stewart Streets, and bisecting the block bounded by 4th and 5th Avenues.
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The figure below shows Escala’s location at 1920 4th Avenue. The figure also
illustrates the alley bisecting 4th and 5th Avenues. Escala residents rely on the alley for
delivery services, emergency services, as well as for waste and recycling collection
services. Some of Escala’s units are located adjacent to the alley.
C. The Project
The Applicants propose to develop a 48-story mixed use building containing retail
and restaurant space, a 155 room hotel, and 431 apartments. The project is located at
1933 5th Avenue. The project will include parking for 239 vehicles below grade.
Access to the parking lot and loading dock will be via the alley shared with Escala. The
figure above highlights the location of the construction site.
The project requires a master use permit (MUP) administered by the Seattle
Department of Construction and Inspections (Department). MUP approval requires
review under SEPA and the City’s design review process. The design review process
ensures that projects are consistent with the citywide design guidelines. A project that
is approved under the design review process is presumed to comply with the City’s
SEPA height, bulk, and scale policies. SMC 25.05.675(G)(2)(C). -5- No. 83037-6-I/6
Design review began July 7, 2015, with an early design guidance meeting where
the design review board (DRB) heard the Applicant’s analysis and took public
comments. After changes to the project design, the DRB held two more early design
guidance meetings in 2015, followed by a first recommendation meeting on June 28,
2016. After additional design changes, the DRB voted unanimously to recommend
approval of the project at its final meeting on December 20, 2016.
The City’s SEPA review of the project consisted of several interrelated steps. On
December 15, 2016, the City issued a SEPA DS. As part of the DS, the City adopted
the 2005 FEIS, determining that the project’s impacts will be within the 2005 FEIS’s
range of impacts and its mitigating measures. The City also adopted a SEPA
addendum containing project-specific analyses.
After receiving public comments, on July 3, 2017, the Department issued a
revised addendum replacing the December 2016 version. A second notice of DS was
also issued on July 3, 2017. 2 The second notice of DS adopted the 2005 Downtown
EIS along with the revised addendum. The notice explained that the Director:
has determined that the referenced proposals could have probable significant adverse environmental impacts under [SEPA] on the land use; environmental health; energy/greenhouse gas emissions; aesthetics (height, bulk and scale; light, glare and shadows; views); wind; historic and cultural resources; transportation and parking; and construction elements of the environment.
[The Department] has identified and adopts the [Downtown EIS]. [The Department] has determined that the proposal’s impacts for the current Master Use Permit application have been adequately analyzed in the referenced FEIS. The FEIS was prepared by the city of Seattle. That document meets [the Department’s] SEPA responsibilities and needs for 2 The December 2016 notice of DS stated the proposal was “likely to have probable significant
adverse environmental impacts.” The July 2017 notice of DS changed the wording to “could have probable significant adverse environmental impacts.”
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the current proposal and will accompany the proposal to the decisionmaker.
The current Addendum has been prepared to add specific information on land use; environmental health; energy/greenhouse gas emissions; aesthetics (height, bulk and scale; light, glare and shadows; views); wind; historic and cultural resources; transportation and parking; and construction impacts from the current proposal and discusses changes in the analysis in the referenced FEIS. Pursuant to SMC 25.05.625-630, this current Addendum does not substantially change analysis of the significant impacts and alternatives in the FEIS.
On October 27, 2017, the Department issued its MUP decision approving the
project. The decision granted design review approval and SEPA review approval.
Relying on the Downtown EIS and revised addendum, the MUP decision addressed the
project’s environmental impacts on construction, environmental health, greenhouse gas
emissions, height, bulk, and scale, historic resources, land use, light and glare, parking,
public views, shadows on open spaces; and transportation. For each area of review,
the MUP decision determined that no significant adverse impacts were anticipated by
the project.
D. Administrative Appeal
On November 9, 2019, Escala appealed the MUP decision to the City hearing
examiner. After a multiday hearing, the hearing examiner affirmed the MUP Decision in
respect to design review and the legal adequacy of the City’s SEPA review of the
project’s potential environmental impacts related to transportation, alley operations,
height, bulk, and scale, and land use compatibility elements. The hearing examiner
determined, however, that the City erred by failing to evaluate the impacts related to
loss of light on human health. The hearing examiner remanded to the City for further
analysis of the project’s impacts as they relate to loss of light within the Escala
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residential units. The hearing examiner otherwise affirmed the DS, subject to the
addition of a loading dock management plan.
Following the remand, the Department evaluated the health impacts from light
using analysis prepared by three experts. The Department then issued a draft lighting
addendum for comment. Escala and its consultants submitted extensive comments and
analysis. The Applicants also responded providing additional analysis and an
explanation of the methodology used by its consultant. Following a 19-month review
period, the Department issued a revised MUP Decision, including the adopted
Downtown EIS and the lighting addendum.
On May 5, 2020, Escala appealed the revised MUP Decision. The hearing
examiner upheld the revised MUP Decision, finding that the Department provided a
reasoned and thoughtful analysis. The hearing examiner concluded that Escala failed
to demonstrate any new probable significant adverse impacts to the health of its
residents.
Escala petitioned for review of the hearing examiner’s decisions before the King
County Superior Court. On July 30, 2021, the superior court dismissed Escala’s
petition.
Escala appeals. 3
3 On September 23, 2021, this court linked Escala’s appeal to that of another proposed site on
the same block. See Escala Owners Association v. City of Seattle, No. 82568-2-I (Wash. Ct. App. July 25, 2022). We write separately to address the issues raised in that opinion, but each share similar analyses.
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III. ANALYSIS
A. SEPA Compliance
Escala argues that the Department failed to comply with SEPA. Specifically, Escala
asserts that the Department erred because: (1) it improperly adopted the Downtown
EIS, (2) even if properly adopted, the Downtown EIS does not contain adequate
information and analysis required by SEPA, and (3) it is improper to rely on the addenda
to analyze the project’s environmental impacts. We disagree.
1. Standard of Review
This matter is before us under the Land Use Petition Act (LUPA), ch. 36.70C
RCW. In reviewing a LUPA decision, we sit in the same position as the superior court
and apply the LUPA standards of review directly to the hearing examiner’s decision.
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123
(2000). Our review is confined to the record created before the hearing examiner.
RCW 36.70C.120(1).
Under LUPA, “a court may grant relief from a local land use decision only if the
party seeking relief has carried the burden of establishing that one of six standards
listed in RCW 36.70C.130(1) has been met.” Wenatchee Sportsmen, 141 Wn.2d at
175. Because Escala seeks relief from the Department and the hearing examiner’s
decision, it bears the burden on appeal. Pinecrest Homeowners Assn v. Cloninger &
Assocs., 151 Wn.2d 279, 288, 87 P.3d 1176, (2004). The relevant standards of review
include:
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
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(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts.
RCW 36.70C.130(1)(b)-(d).
“We review the agency’s factual findings under the substantial evidence standard
and conclusions of law de novo.” Wenatchee Sportsmen, 141 Wn.2d at 176.
Substantial evidence is “a sufficient quantum of evidence in the record to persuade a
reasonable person that the declared premise is true.” Wenatchee Sportsmen, 141
Wn.2d at 176. We review an application of facts to the law under the clearly erroneous
standard. Wenatchee Sportsmen, 141 Wn.2d at 176. Such an application is clearly
erroneous when, despite supporting evidence, “the reviewing court on the record is left
with the definite and firm conviction that a mistake has been committed.” Wenatchee
Sportsmen, 141 Wn.2d at 176.
2. Adoption of the Downtown EIS
Escala first argues that the hearing examiner erred by affirming the Department’s
adoption of the Downtown EIS as part of its SEPA analysis of the project. Adoption of
an EIS is procedurally allowed under SEPA where certain conditions are met. WAC
197-11-600. The hearing examiner’s determination that the City properly adopted the
2005 FEIS is an application of law to facts and subject to the “clearly erroneous”
standard of review. RCW 36.70C.130(1)(d).
As discussed above, SEPA contemplates using existing SEPA documents for
subsequent proposals. “To avoid ‘wasteful duplication of environmental analysis and to
reduce delay,’ the SEPA rules encourage and facilitate reusing existing environmental
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documents.” Thornton Creek Legal Defense Fund v. City of Seattle, 113 Wn. App. 34,
50, 52 P.3d 522 (2002) (quoting RICHARD L. SETTLE, THE W ASHINGTON STATE
ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS § 15, at 209 (2001)). “Under
certain circumstances, ‘existing documents may be used to meet all or part of an
agency’s responsibility under SEPA.’” Thornton Creek, 113 Wn. App. at 50 (quoting
SMC 25.05.600(A)). SEPA authorizes the use of existing documents under these
circumstances:
Lead agencies are authorized to use in whole or in part existing environmental documents for new project or nonproject actions, if the documents adequately address environmental considerations set forth in RCW 43.21C.030. The prior proposal or action and the new proposal or action need not be identical, but must have similar elements that provide a basis for comparing their environmental consequences such as timing, types of impacts, alternatives, or geography. The lead agency shall independently review the content of the existing documents and determine that the information and analysis to be used is relevant and adequate. If necessary, the lead agency may require additional documentation to ensure that all environmental impacts have been adequately addressed.
RCW 43.21C.034.
Under the SEPA rules, “an agency may use environmental documents that have
previously been prepared in order to evaluate proposed actions, alternatives, or
environmental impacts.” WAC 197-11-600(2). “The proposals may be the same as, or
different than, those analyzed in the existing documents.” WAC 197-11-600(2); SMC
25.05.600(A). The Seattle Municipal Code also requires that the earlier document need
be “accurate and reasonably up-to-date.” SMC 25.05.600.
The SEPA rules provide that existing environmental documents may be used for
a new proposal by adoption, incorporation by reference, incorporating an addendum, or
preparing a SEIS:
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(4) Existing documents may be used for a proposal by employing one or more of the following methods: (a) “Adoption,” where an agency may use all or part of an existing environmental document to meet its responsibilities under SEPA. Agencies acting on the same proposal for which an environmental document was prepared are not required to adopt the document; or (b) “Incorporation by reference,” where an agency preparing an environmental document includes all or part of an existing document by reference. (c) An addendum, that adds analyses or information about a proposal but does not substantially change the analysis of significant impacts and alternatives in the existing environmental document. (d) Preparation of a SEIS if there are: (i) Substantial changes so that the proposal is likely to have significant adverse environmental impacts; or (ii) New information indicating a proposal’s probable significant adverse environmental impacts. (e) If a proposal is substantially similar to one covered in an existing EIS, that EIS may be adopted; additional information may be provided in an addendum or SEIS (see (c) and (d) of this subsection).
WAC 197-11-600(4).
Under RCW 43.21C.034, the City was allowed to adopt the Downtown EIS if it
had similar elements that provide a basis for comparing their environmental
consequences such as timing, types of impacts, alternatives, or geography. RCW
43.21C.034. The hearing examiner determined that the Downtown EIS contained
similar elements.
The hearing examiner found that the project was covered in the same timeline as
the Downtown EIS. The Downtown EIS contemplated growth over a 20-year horizon
from 2000 to 2020. 4 Save for delays in litigation, the anticipated opening date of the
4 Counsel for the City admitted at oral argument that now that 17 years has passed since
completion of the Downtown EIS, its utility may be nearing an end. Wash. Court of Appeals oral argument, No. 83037-6-I, (Mar. 9, 2022) at 14 min., 24 sec. We too have concerns regarding the Downtown EIS’s utility for adoption when applied to new developments beyond the document’s contemplated timeline. Nonetheless, the hearing examiner’s finding that the Downtown EIS was timely was not clearly erroneous.
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project was 2019. The hearing examiner stated that “while the age of a document is
within the range of considerations an agency could apply before adopting a document,
there is no specific point in time identified in these regulations wherein the ability to
adopt a document expires.”
The Downtown EIS also evaluated the most of the types of impacts that could
occur at the project sites. The Downtown EIS evaluated potential impacts to land use,
height, bulk and scale, and transportation under all alternatives. This included impacts
from additional height and density on shadows, light, and glare, as well as public
services, and transportation.
The hearing examiner found that the project was within the geographic scope of
the Downtown EIS. The hearing examiner explained that the Downtown EIS “evaluated
the probable significant environmental impacts that could result from the development
following a change in zoning to allow additional height and density in the Downtown
area.” The Downtown EIS studied the potential impacts of increased growth across all
alternatives and evaluated the impacts of various height and density scenarios within
the growth assumption. The project property was within the area studied. 5
The hearing examiner concluded that adoption of the Downtown EIS was
appropriate, in part, because:
The [Downtown EIS] provided environmental analysis for the upzone of the Downtown District. The rezone established the zoning under which the project application was submitted—establishing the provisions that 5 Escala points to a graphic attached as an appendix to the 2003 Draft EIS indicating that the
project site was “not likely” to be developed. Another graphic, however, also indicates that the “highest and best use” of the project location is “office and/or residential.” A third graphic in the body of the Downtown EIS identifies the entire block bounded by 4th and 5th Avenues and Stewart and Virginia Streets as “secondary” development sites. The record supports that the project location was considered in the geographic scope of the Downtown EIS.
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specifically allow for the proposal. The [Downtown EIS] specifically anticipated projects of the type represented by the proposal.
Adoption of the Downtown EIS was consistent with RCW 43.21C.034. The
hearing examiner’s decision approving its adoption as part of the SEPA review of the
project was not clearly erroneous.
3. Adoption of Addenda
Escala argues next that, even if adoption of the Downtown EIS was allowed, it is
inadequate because it fails to contain information required by SEPA. Escala’s argument
focuses solely on the contents of the Downtown EIS and does not address the
additional analyses addressed in the addenda. Escala premises its argument on the
incorrect assumption that the City erroneously adopted and relied on the addenda.
Consequently, before reviewing the adequacy of the SEPA review, we first address
Escala’s argument that the analysis and information required in an EIS cannot be
provided in addenda.
The SEPA rules provide that when an agency adopts or incorporates existing
SEPA documents into its SEPA review, addenda and supplemental EISs may be
prepared to remedy shortcomings in the documents that have been used. WAC 197-
11-600(4)(a), (d); SMC 25.05.600(D)(3), (4). An addendum is the appropriate vehicle
for adding analyses or information about a proposal that “adds analyses or information
about a proposal but does not substantially change the analysis of significant impacts
and alternatives in the existing environmental document.” WAC 197-11-600(4)(c); SMC
25.05.600(D)(3).
By contrast, an agency must prepare an SEIS if there are “[s]ubstantial changes
so that the proposal is likely to have significant adverse environmental impacts,” or if
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there is “[n]ew information indicating a proposal’s probable significant adverse
environmental impacts.” WAC 197-11-600(4)(d)(i), (ii); SMC 25.05.600(D)(4)(a), (b).
Here, following the adoption of the Downtown EIS, the City recognized that
additional, site-specific analysis of the project was necessary. As a result, the City
analyzed the project in the original and revised Addenda evaluating impacts including
land use, height, bulk, and scale, and transportation impacts. After the hearing
examiner determined that a human health analysis was necessary due to potential
impacts of the loss of light in the eastern facing units of Escala, the City prepared the
second Addendum, concluding that too many variables existed to make any
determination that a loss of light would have effects on human health. The conclusion
of all Addenda was the same—the project would have no new significant impacts
changing the analysis of impacts and alternatives in the 2005 FEIS.
The approach taken by the City is like that considered by this court in Thornton
Creek, 113 Wn. App. at 52. Thornton Creek involved a site specific “General
Development Plan” (GDP) proposed for a site (the Northgate mall) within the larger
Northgate “urban center.” The City’s previous decision to designate Northgate as an
urban center was reviewed in a nonproject EIS in 1992. Thornton Creek, 113 Wn. App.
at 43-44. When considering the newer proposal, the City determined that the GDP was
within the scope of the plans analyzed in the prior urban center EIS, and adopted the
older EIS along with an addendum to satisfy SEPA. Thornton Creek, 113 Wn. App. at
43-44. We affirmed the City’s approach concluding that sufficient similarity existed
between the nonproject EIS and the GDP because “the proposals included in the GDP
fell within the scope of development analyzed in [the] existing] EIS” and “the
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environmental impact of the GDP was not substantially different from that analyzed in
[the EIS].” Thornton Creek, 113 Wn. App. at 51.
Much like in Thornton Creek, the hearing examiner reviewed the Department’s
decision and determined that the Downtown EIS specifically addressed the scope and
impact of developments like the project for the same geographic area. Citing Thornton
Creek, and the Seattle Municipal Code, the hearing examiner rejected Escala’s
argument that the City was procedurally barred from adopting the Downtown EIS and
using the Addenda.
Escala’s argument is based on the false premise that, upon issuance of a DS for
a proposal, the City’s only option is preparation of a new EIS. On the contrary, adoption
of the Downtown EIS along with the project specific Addenda did not ignore the
requirement that an EIS be prepared; instead, it fulfilled it. RCW 43.21C.034 expressly
authorizes use of existing environmental documents such as the Downtown EIS. The
SEPA rules then expressly allow adoption of existing EISs along with incorporating
projects specific addenda. WAC 197-11-600(4)(c). The hearing examiner’s decision
was not clearly erroneous.
4. Adequacy of the SEPA Review
We next address Escala’s assertions that the City’s SEPA review was
inadequate. But unlike Escala’s sole focus on the adequacy of the Downtown EIS,
because we hold that the City correctly adopted the Downtown EIS and Addenda, we
consider both the Downtown EIS and Addenda. 6
6 Because they are focused solely on the contents of the Downtown EIS, we do not address
Escala’s arguments that the Downtown EIS did not contain a summary of the project of the affected environment. The discussions within the addenda provide the analysis Escala is seeking.
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The adequacy of an EIS is a question of law subject to de novo review. King
County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 138 Wn.2d 161, 183, 979
P.2d 374 (1999). We review EIS adequacy under the “rule of reason,” which is a
“broad, flexible cost-effective standard” where “the EIS must present decisionmakers
with a reasonably thorough discussion of the significant aspects of the probable
environmental consequences of the agency’s decision.” Citizens All. To Protect Our
Wetlands v. City of Auburn, 126 Wn.2d 356, 361-62, 894 P.2d 1300 (1995). We must
accord “substantial weight” to the agency’s determination that an EIS is adequate.
RCW 43.21C.090; King County, 138 Wn.2d at 183.
a. Alternatives
Escala’s primary argument is that the City’s decision adopting the Downtown EIS
and Addenda failed to comply with SEPA’s mandate to consider alternatives. We
disagree.
We agree with Escala that an alternatives analysis is one of the key building
blocks, if not the heart, of SEPA review. SEPA requires that an EIS identify and assess
the impacts of reasonable alternatives to the proposal, including the no action
alternative. RCW 43.21C.030. “The required discussion of alternatives to a proposed
project is of major importance, because it provides a basis for a reasoned decision
among alternatives having differing environmental impacts.” Weyerhaeuser v. Pierce
County, 124 Wn.2d 26, 38, 873 P.2d 498 (1994).
Escala’s argument, however, ignores that the requirement for an alternatives
analysis is only triggered where a new EIS or supplemental EIS is required. There is no
dispute that an EIS must include an analysis of alternatives including the no action
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alternative. See WAC 197-11-400 (EIS shall inform decision makers and the public of
reasonable alternatives); WAC 197-11-402 (EIS need analyze only the reasonable
alternatives); WAC 197-11-440(5) (requirement for alternatives in EIS). There is also no
dispute that where a supplemental EIS is required, the supplemental EIS must include
alternatives if they were not considered in the previously prepared EIS. WAC 197-11-
620; WAC 197-11-440. But, contrary to Escala’s argument, there is no similar
requirement for an analysis of alternatives in an addendum. See WAC 197-11-625.
Escala cites no authority for the proposition that an agency adopting an earlier EIS
along with a site specific addendum is required to prepare a new alternatives analysis
as part of the addendum.
The Downtown EIS considered four alternatives and the no action alternative.
The preferred alternative analyzed the impact of the proposed rezone from DOC2-300
to DOC2 500/300-500, which is the zoning that applies to the project location. The City
compared the preferred alternative against the other alternatives that analyzed different
heights, densities, and types of downtown development. This analysis compared the
relative impacts of each alternative, including the no action alternative, to various
elements of the environment including: housing, land use, height, bulk, and scale, views
and aesthetics, and transportation. Consistent with the Director’s determination, the
project’s impacts are within the range of impacts considered in the Downtown EIS. As a
result, the alternatives analysis in the Downtown EIS satisfied SEPA.
The July 2017 revised addendum added to the analysis in the Downtown EIS by
analyzing more specific project level impacts, including a comparison of existing
conditions (i.e., “no action”) with impacts from the proposal. This included an analysis
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of impacts to land use, height, bulk, and scale, light/glare/shadows, and transportation.
In combination, the Downtown EIS and addendum provided a reasonably thorough
discussion of alternatives.
b. Transportation
Escala next argues that the SEPA documents failed to provide a reasonably
thorough discussion of the probable significant traffic impacts of the project associated
with the alley running between the Escala condominiums and the project. We disagree.
The July 2017 revised addendum was supported by a transportation impact
analysis (TIA). The TIA included analysis of impacts of the project on the alley. This
included: (1) an observation of existing alley operations, (2) an evaluation of existing
alley conditions including width, (3) a calculation of peak hour level of service (LOS) for
existing alley operations, (4) a calculation of future LOS for operations with and without
the project, (5) an evaluation of service access and delivery operations, and (6) an
analysis of access to the project’s loading docks for a variety of trucks.
Based on the analysis in the addendum, the Department’s decision concluded:
Project traffic will impact alley operations at the alley intersections with Stewart Street and Virginia Street. During the morning peak hour, the most noticeable impact will be at the alley/Virginia intersection, with a shift from LOS D to LOS F. During the afternoon peak hour, the alley/Virginia intersection will degrade from LOS E to F, and the alley/Stewart intersection will continue to operate at LOS F with an increase in delay of about eight seconds per vehicle. These impacts reflect increased delay for traffic on the alley; additional delay is not expected for traffic on Virginia and Stewart streets.
Queuing on the alley at its intersection with Virginia also will increase with project traffic. During the morning peak hour, the 95th percentile queue length is estimated to increase from 65’ to 200’, while in the afternoon peak hour, the 95th percentile queue length is estimated to increase from 60’ to 155’. (The 95th percentile queue length represents the queue that would be exceeded only five percent of the
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time, and serves as a reasonable worstcase queuing condition.) Queues on Virginia Street, Stewart Street, and the alley approaching Stewart Street would not noticeably change due to traffic from the project.
Project access is proposed from the alley on the west side of the site. The width of the alley varies between approximately 16’ and 22’. In some parts of the alley, garbage containers constrain the alley to as narrow as 14’. With the development of the proposed project and a nearby project at 1903 5th Avenue, portions of the alley will be widened.
Loading and unloading activity in the alley currently block traffic. Observations over two days documented a range of delays, most of them under 25 minutes but one for over three hours. Some of the alley blockage was associated with the Icon Grill, which will be removed with the project. Delivery and loading for both the proposed project and the future development at 1903 5th Avenue would occur from access via the alley and could result in increased loading activity in the alley or potential short-term blockages. The proposed loading bays for both projects would accommodate the expected loading demand and truck lengths without blocking the alley, resulting in less long-term alley blockage. Loading docks at the project site are designed to accommodate an SU-30 vehicle. Turning templates demonstrate that two SU-30 vehicles could be accommodated side-by-side in the loading dock. In the occasional circumstance where a larger vehicle (such as a residential moving van) needs to access the site, they would be directed to obtain a street use permit from SDOT so that the truck could be parked on the adjacent street during move-in or move- out.
The hearing examiner also heard testimony from the Applicant and Escala’s
traffic experts as well as the City’s. The hearing examiner concluded:
The Appellant has not demonstrated that the Department did not adequately analyze transportation impacts. The Applicant competed adequate analysis of project operations in the context of the alley. Much of the Appellant’s expert’s transportation analysis was based on the Applicant’s analysis that was used to support the City’s SEPA analysis. The City’s SEPA analysis was adequate for determining if there would be any probable significant impacts, and this analysis and the conclusion that there would be no new transportation impacts other than those analyzed in the FEIS satisfies the rule of reason.
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We agree with the hearing examiner that the analysis of traffic impacts to the
alley satisfied the rule of reason and is adequate under SEPA.
c. Light and Human Health
Escala next contends that the City’s SEPA analysis failed to adequately address
the impacts from loss of light and human health for Escala residents affected by the
project. While Escala recognizes that the lighting addendum provided analysis of the
health effects of the loss of light, its primary argument is that the analysis fails to
consider the “worst case scenario.” We disagree.
The SEPA rules define a process for addressing uncertainty. First, if there are
“gaps in relevant information or scientific uncertainty concerning significant impacts,
agencies shall make clear that such information is lacking or that substantial uncertainty
exists.” WAC 197-11-080(2). The SEPA rules next state than an agency may proceed
in the absence of such information “[i]f information relevant to adverse impacts is
important to the decision and the means to obtain it are speculative or not known.”
WAC 197-11-080(3). And finally, if the agency proceeds, “it shall generally indicate in
the appropriate environmental documents its worst case analysis and the likelihood of
occurrence, to the extent this information can reasonably be developed.” WAC 197-11-
080(3).
The Department followed this process. First, it disclosed that there was
uncertainty. After reviewing the lighting studies, the Department explained: “[t]he
studies note that there is not yet any empirical basis for understanding the effects of
reduced daylight on human health, and the research of impacts of reduced light on
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human health is inconclusive.” It next generally explained why the studies submitted by
the applicant were a “worst case” analysis:
The information provided by the applicant and identified in the Second EIS Addendum indicates that the reduction of light inside the Escala residential units is expected to be less than moderate and is not expected to be significantly adverse. As noted above, the information provided by the applicant indicates the project would result in a 25% reduction of instances of units reaching at least 150 EML. Each of the floors used in the Stantec study are the lowest floors in the building with that particular unit based on the Escala building permits provided to [the Department]. As indicated in the study and subsequent clarification from the applicant, the intent of the WELL Standard Analysis was to evaluate the condition with the maximum impact for each type of floor layout for Escala residential units. Further, the analysis looks at a 56% reduction in light in those regularly occupied eastern-facing units. Units facing north, south and west will not experience such reductions of light due to the project proposal. Therefore, the analysis looks at the units most impacted, or “worst case.”
As for impacts of a reduction of lighting on health, the Department again
concluded that there was no consensus that there would be.
Further, there is no clear consensus of health outcomes based on a reduction of light due to the proposed project. While [Escala’s expert] concluded that long-term exposure to misalignment of lighting can be associated with higher incidence of cancer, cardiovascular disease, metabolic disorders and depression, such associations of higher incidences of a particular disease does not establish the project will result in likely significant adverse human health impacts to residents of Escala due to loss of light as a result of the project. As noted by the Brainard Study, published studies evaluating the impacts of daylight on human health are limited and “lack control of many variables that are known to elicit changes in circadian timing of human physiology such as exercise or activity levels, temperature, diet, previous light history or changes in photic conditions.”
The Department’s revised decision concluded:
While the studies in the second Addendum measure the reduction of light into residential units of the Escala, there is a lack of scientific consensus to determine how this loss may directly impact human health, particularly where there are other variables at play unrelated to any proposed development. Any potential impacts of reduced lighting on human health would be expected to be reduced by use of electric lighting and by wakeful
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hours spent outside of the home, since wakeful hours spent outside the home expose people to daylight conditions. Consequently, even in light of the public comments and reports by [Escala’s experts], [the Department] concludes that the project’s reduction of light into the Escala residential units does not result in probable significant impacts to human health.
The hearing examiner, after hearing two days of testimony, agreed with the
Department that there was a lack of evidence of health impacts. The hearing examiner
found:
Regarding health impacts, Escala does not present evidence refuting there is not yet a scientific accepted metric to evaluate impacts of light on human health, or to distinguish health impacts between natural and electric light. No studies were submitted demonstrating an empirical relationship between daylight alone and health outcomes. Appellant’s closing brief notes that “scientific studies documenting a specific dose response relationship [between light and health] do not exist.” Studies [Escala’s expert] referenced in comments cite to health-related impacts to shiftwork, a distinct condition involving overexposure to light at night. And, testimony on students getting up early and requiring additional sleep is a distinct situation from that presented in this appeal.
We agree with the hearing examiner. The City’s SEPA analysis presents
decisionmakers with a reasonably thorough analysis, including the impacts under the
worst case scenario, of the impacts of the project’s impacts on the health of Escala’s
The City’s SEPA analysis, including its adoption of the Downtown EIS and
Addenda was adequate.
B. Attorney Fees
The City of Seattle and Applicants7 requests attorney fees on appeal. In this
situation, we are without discretion to deny an award of attorney fees.
7 The Applicants are Jodi–Patterson O’Hare; G4 Capital Seattle Holdings, LLC, 1921-27 Fifth
Avenue Holdings 591683; and 1921-27 Fifth Avenue Holdings LLC. City of Seattle and the Applicants receive attorney fees under separate provisions of RCW 4.84.370.
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Fees and costs for an appeal of a land use decision are determined by RCW
4.84.370:
(1) Notwithstanding any other provisions of this chapter, reasonable attorneys’ fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys’ fees and costs under this section if: (a) The prevailing party on appeal was the prevailing party or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW . . .; and (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings. (2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal.
First, the Applicants were prevailing parties under RCW 4.48.370(1). They
prevailed in all forums below and are the prevailing parties on this appeal. Moss v. City
of Bellingham, 109 Wn. App. 6, 30, 31 P.3d 703 (2001). The City of Seattle is likewise a
prevailing party. “Under [RCW 4.84.370] . . . we award fees to the public entity that
made the permitting decision only when the public entity succeeds in defending its
decision on the merits.” Durland v. San Juan County, 182 Wn.2d 55, 78, 340 P.3d 191
(2014). Because the trial court upheld the City of Seattle’s MUP decision, and because
we uphold this decision as well, an award of attorney fees against Escala is mandatory.
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Affirmed.
WE CONCUR:
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