On January 5, the Hearing Examiner for the city of Sammamish issued a decision denying the Shoreline Substantial Development Permit (SSDP) for segment 2B without prejudice because the 60% design plans on which the application was based are incomplete. Denial without prejudice allows the County to resubmit the application after incorporating the missing information.

The County decided to appeal the Hearing Examiner’s decision to the Shoreline Hearings Board (SHB) rather than provide the additional information.

SHO also filed an appeal with the SHB. Our appeal asserts that there are insufficient conditions protecting the environment within the Hearing Examiner’s decision. The following are the specific conditions requested in the appeal:

• Disallow any improvements that serve purposes other than providing a hiking and biking trail.

• Condition any future approval of the Permit on a trail width, in areas where the stream and wetland buffers are not implicated, based on AASHTO guidelines of 16 feet, including 2 feet of graded shoulder on each side.

• Condition any future approval of the Permit on a trail width, in areas where the stream and wetland buffers are implicated, based on AASHTO guidelines of 14 feet, including 2 feet of graded shoulder on each side.

• Condition any future approval of the Permit on the use of the existing interim Trail centerline, which follows the rail bed, minimizing the negative impact to the environment.

Three homeowners who live in Mint Grove generously agreed to be the appellants or the appeal. SHO’s legal council recommended that SHO not be included as an appellant to simplify the appeal process. In the past the County has claimed that SHO did not have standing because it owns no property along the trail.

SHO plans to continue preparing the arguments and exhibits for the hearing and will be responsible for finding expert witnesses. Anyone qualified as a wetland biologist, civil engineer with trail/road construction experience, or traffic engineer is asked to contact SHO to volunteer their services.

SHO will need exhibits to provide to the SHB showing where and how the relocation of the centerline of the proposed trail will damage the environment. This includes damage done by clearing within the CG lines shown on the drawings. If you have or willing to take photos, please contact SHO; we need your help.

SHO Board

The Hearing Examiner denied the SSDP for segment 2B without prejudice because the 60% design plans on which the application was based, are incomplete.

“The Examiner concludes that the County’s application was incomplete because the site development plans (Exhibit 7) lack all information required for a complete application under WAC 173-27-180(9)(f). Specifically, they do not depict any utilities and may not depict all structures in the vicinity of the proposed construction. An incomplete application cannot be processed. An incomplete application creates no vested rights. An incomplete application cannot be cured by imposing a condition on the requested SSDP.”

The complete decision can be found at the following link:

https://www.sammamish.us/media/2256/ssdp2016-00415-elst-seg-2b-decision-unsigned.pdf

Denial without prejudice allows the County to resubmit the application after they have incorporated all required information. Since the primary reason for the denial is that the County must show all utilities, some property owners may have leverage with the County in order for the County to handle the utility rights where they cross private property. It is not clear whether the resubmitted application would be subject to another hearing.

The Examiner rejected most of the conditions recommend by the City including narrowing the trail width and permitting existing structures. The Examiner acknowledges that he cannot resolve ownership issues. He also opines that there are so many conflicting issues involved that he could not render a decision that is acceptable to all parties affected and that an appeal of whatever he decided would be probable. It is not known at this time if the City (or the County for that matter) will appeal the decision. Additionally, any party affected by the decision has the right to appeal. Appeals would be heard by the Shoreline Hearings Board. It is true that the decision delays the start of the project. This is good news in that some of the existing legal challenges and appeals may be decided before the County could begin construction and the whole legal landscape could have changed by then. We believe that there would also be the opportunity to appeal the permit approval once the County has corrected the deficiencies in the plans. This could also further delay the project until we have more clarity to the legal challenges. We’ll keep you informed of conditions as they develop.

SHO Board

The Segment 2B SSDP hearing was concluded on December 22^nd. On that day King County and the City of Sammamish filed their closing arguments.

The final conclusion for each is quoted below:

KING COUNTY

“King County asks that the Examiner approve the SSDP with the footprint proposed by the applicant. We further ask that any conditions be limited to what is necessary to ensure SMA and SMP compliance as the project moves forward.”

Earlier in its 26-page document, the County argues that the City’s recommended conditions are unnecessary, vague, overbroad, and unreasonable.

CITY OF SAMMAMISH

“The City respectfully recommends approval of the SSDP, but subject to the Conditions detailed in Staff Report/Exhibit 1.”

Earlier in its 18-page document, the City argues on behalf of its Conditions. These conditions begin on page 17 of the following document:

https://www.sammamish.us/attachments/pagecontent/47039/01_Exhibit_SSDP2016-00415%20Segment%202B_Staff%20Report%20Final100217_signed.pdf

The decision of the Hearing Examiner is due on Tuesday, January 9.

In other matters, there have been developments in the quiet title suit in federal court. The appeal of the ruling of judge Pechman to the 9^th Circuit Court of Appeals is expected to be heard sometime this spring. Plaintiffs in the case have uncovered new evidence that should reinforce the appeal. That new evidence shows that the plaintiffs have been paying taxes on the disputed property contrary to the County’s claim that the County has been “paying” the taxes. The matter of tax payment was one of the pivotal issues in the original case and we expect the new evidence to raise the probability of a successful appeal. The Court has accepted the new evidence.

In addition, the plaintiffs in the Federal suit have entered a motion to stay Pechman’s order until the appeal is decided, with the new evidence noted above as part the justification for the stay. They argue that there is a reasonable chance that they will prevail in their appeal and that permitting the County to proceed with construction would cause irreparable harm to the plaintiffs and other property owners who are not party to the suit. As you know, the County is using Pechman’s ruling to subject other property owners to their claims of ownership and use rights, even though the legal situation with other properties is entirely different from those of the plaintiffs; Pechnman’s ruling only applies to the plaintiffs’ property.

The plaintiffs’ motion to stay Pechman’s order can be viewed under “Legal and Other Documents.”

The SHO Board wishes to thank all of you that have supported our efforts to construct an ELST that will be an asset to the community while respecting the property rights of the underlying fee owners over whose property the trail traverses. We expect 2018 to be an eventful and pivotal year in these efforts. We wish you all a Very Happy (and Successful!) New Year.

SHO Board