Thornton Creek Legal Defense Fund v. City of Seattle
| Decision Date | 12 August 2002 |
| Docket Number | No. 49131-8-I., No. 47353-1-I |
| Citation | 113 Wash.App. 34,52 P.3d 522 |
| Court | Washington Court of Appeals |
| Parties | THORNTON CREEK LEGAL DEFENSE FUND, Appellant/Cross-Respondent, Victory Heights Chapter of Ponders, Petitioner/Plaintiff, v. CITY OF SEATTLE, a municipal corporation, Simon Property Group, Respondents/Cross-Appellants. Thornton Creek Legal Defense Fund, Citizens for a Liveable Northgate, Appellants/Cross-Respondents, and Victory Heights Chapter of Ponders, Petitioners, v. City of Seattle, a municipal corporation, Simon Property Group, Respondents/Cross-Appellants. |
Thomas Harding Wolfendale, Eric Samuel Laschever, Seattle, WA, for Simon Property Group.
Robert David Tobin, Seattle Law Dept., Seattle, for City of Seattle.
Jan Elizabeth Brucker, Seattle, Citizens for a Livable Northgate.
Eric D. `Knoll' Lowney, Smith & Lowney, Seattle, WA, for Appellant(s).
This case involves a challenge to the City of Seattle's approval of General Development Plans (GDPs) for the future expansion of Northgate Mall. In 1993, the City designated Northgate Mall and the surrounding area as one of Seattle's "urban centers," adopting the Northgate Area Comprehensive Plan and the Northgate Overlay District. Simon Property Group owns the Northgate Mall property and prepared the GDPs. Among other things, Simon plans to build commercial, residential, and office buildings on part of the Mall property. The Thornton Creek Legal Defense Fund (Thornton) and Citizens for a Livable Northgate (CFLN) challenged the City's approval of Simon's plans under Washington's Land Use Petition Act (LUPA).1 Two cases, which the parties refer to as "Northgate I" and "Northgate II," have been consolidated for purposes of this appeal. Thornton and CFLN raised numerous challenges to the Director's approval of the GDPs. For the reasons discussed below, we uphold the City's approval of Simon's revised GDP.
In 1998, Simon submitted a GDP to the City, proposing to redevelop the Mall in four phases over 15 years. In phase one, Simon plans to build residential, commercial, and office buildings where the south parking lot is now located. The proposed residential development is located over a drainage pipe, which Thornton and CFLN contend is Thornton Creek, a habitat for threatened Puget Sound Chinook salmon and other priority fish species.2
In March 1999, the Director of the Department of Construction and Land Use (DCLU) conditionally approved Simon's GDP. Thornton appealed the Director's decision to the Seattle Hearing Examiner, essentially arguing that the Director approved the GDP without conducting an adequate environmental review. The Hearing Examiner rejected that argument but concluded the Director did not have the authority to conditionally approve the GDP, and thus reversed the Director's decision.
Simon appealed the Hearing Examiner's decision to the Superior Court. Shortly thereafter, Thornton filed a petition in the Superior Court challenging portions of the Hearing Examiner's Decision under LUPA and the Declaratory Judgment Act. After a trial, the court ultimately concluded that (1) the Director erred by approving the GDP without requiring an SEIS analyzing the environmental impacts of constructing buildings and other structures over Thornton Creek; (2) the Director erred by approving the GDP without conducting a preliminary analysis of the proposal under the City's Critical Areas Ordinance (CAO); (3) the Director was correct in determining that a Supplemental Environmental Impact Statement (SEIS) analyzing the drainage and water quality impacts of the GDP was not required; and (4) the Director failed to comply with State Environmental Policy Act (SEPA) procedures in approving the GDP, but that the procedural errors were harmless. A final judgment was entered on September 21, 2000.
After the Hearing Examiner reversed the Director's approval of Simon's first GDP, Simon revised the original GDP and resubmitted it to DCLU. In December 1999, the Director approved the revised GDP. Thornton and CFLN again appealed the Director's decision to the Hearing Examiner. The Hearing Examiner issued a Prehearing Order finding that no creek existed underneath the south parking lot. And this time, the Hearing Examiner upheld the Director's Decision approving the revised GDP.3 Thornton and CFLN appealed to the Superior Court and by agreement of the parties, the case was assigned to the same trial judge. Most of the issues raised by Thornton and CFLN in Northgate II had already been argued to him in Northgate I. The court therefore applied its Northgate I rulings to these issues and reversed the Hearing Examiner's finding that there was no creek beneath the south parking lot. The trial court rejected all of Thornton's and CFLN's new challenges to the revised GDP.4
On September 6, 2001, Thornton appealed the trial court's decision in Northgate I to this court. The next day, the City sought direct review of the trial court's decision in Northgate II in the Supreme Court. The Supreme Court consolidated the two appeals and transferred the Northgate I appeal from this court. On March 5, 2002, the Supreme Court transferred the consolidated appeals back to this court.
In 1993, the City of Seattle issued the Northgate Area Comprehensive Plan (NACP) identifying the Northgate Mall and surrounding area as an "urban center." In adopting the plan, the City prepared an Environmental Impact Statement (EIS) in compliance with the SEPA.5 The Final EIS (FEIS) for the NACP was completed in July 1992. The City then adopted the Northgate Overlay District Zoning provisions codified in Chapter 23.71 SMC. Those provisions require the proponent of any development on sites of six or more acres in the Northgate Overlay District to submit a GDP to DCLU. No development may proceed without an approved GDP.6
Simon's Northgate Mall property consists of four parcels. The Mall is located on parcel A. Parcel B is located across the street from the Mall. Parcels C and D are the Mall's south parking lot, which Simon seeks to develop under phase one of the GDPs it submitted to the City. A 60-inch drainage pipe runs under the Mall's south parking lot. Thornton and CFLN maintain this drainage pipe is part of Thornton Creek, an historic salmon habitat, while Simon and the City assert that Thornton Creek begins east of the Mall property and does not run underneath the parking lot. Simon plans to build residential, commercial, and office buildings over the drainage pipe. Simon's plan also includes building a new storm water system for the entire Mall site.
Thornton Creek and CFLN first argue that when the City approved the GDPs, it failed to follow procedures mandated by SEPA. The Director determined that the original GDP was within the scope of the plans analyzed in the 1991 DEIS and the 1992 FEIS. He used those analyses and an "addendum"7 Simon prepared in 1998 to satisfy SEPA's requirements. Although the Director incorporated the 1992 FEIS into his Decision, he did not formally adopt it or circulate the 1998 addendum before conditionally approving the GDP. The trial court concluded that the Director's failure to formally adopt the FEIS and circulate the addendum violated SEPA, but that the procedural error was harmless because the public received adequate notice of the environmental issues raised by the GDP and was offered an adequate opportunity to be heard on those issues. Thornton and CFLN now ask us to hold that the City's SEPA process was fundamentally flawed and to direct the City to begin a new SEPA process, including preparation of an entirely new EIS.
For purposes of this appeal, Thornton Creek and CFLN have raised two basic environmental objections to the proposed development. First, they argued, and the trial court agreed, that building structures directly over the drainage pipe will result in a significant adverse environmental impact. Second, they maintained that the proposed storm water system, which would discharge into Thornton Creek, will have an adverse impact on the salmon habitat. The trial court disagreed with them on this point, concluding that the system proposed in the GDP would likely improve, rather than harm, downstream conditions in Thornton Creek.
Simon and the City now argue the trial court erred in requiring the City to complete an SEIS analyzing the environmental impact of erecting buildings over the drainage pipe. Thornton and CFLN argue that the trial court should have required the City to complete an SEIS addressing the downstream impacts.
Seattle's Critical Areas Ordinance (CAO) provides in part that "[e]very effort shall be made to avoid building over a riparian corridor located in an underground pipe or culvert, except when located under a street right-of-way[.]"8 From the outset, both the Hearing Examiner and the trial judge stated they did not intend to make any substantive rulings on whether the GDPs violated the CAO.9 Therefore, issues relating to the CAO were never fully briefed and argued by the parties. The trial court did, however, conclude that a portion of Thornton Creek runs through the pipe underneath the Mall's south parking lot. Thus, the trial court concluded that the drain pipe "appeared to be a riparian corridor" under the CAO.
Ultimately, the trial court reasoned that constructing buildings over the underground pipe would appear to violate the CAO on its face. This perceived violation of the CAO formed the basis for its ruling requiring the City to prepare a SEIS analyzing the impact of erecting buildings over the drainage pipe. The trial court ruled that the Director erred in approving the GDP without first conducting a preliminary analysis of the proposal under the CAO. In so doing, the court reversed the Hearing...
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