1

8 BEFORE THE HEARING EXAMINER

FOR THE CITY OF SEATTLE
9
Motion by MOTION TO INTERVENE
10
TreePAC
HE File Number: W-18-009
11
To intervene in the appeal of the Non-Project Action of the Department,
12 Queen Anne Community Council Seattle City Council Final
Accessory Dwelling Units FEIS Environmental Impact Statement.
13

14
I. INTRODUCTION
15
The City Council of Seattle (hereafter, the “Department”) As the FEIS was released in early
16
October 2018 the Accessory Dwelling Unit (ADU) Final Environment Impact Statement (FEIS).
17 Queen Anne Community Council (hereafter, the “Appellant”) filed an administrative appeal (hereafter
“Subject Appeal”) with the Office of the Hearing Examiner on October 18, 2018.
18
By Hearing Examiner Rule (“HER”) 3.09,(b) “ A person, organization or other entity who has
19 not filed an appeal may request by motion to participate in the appeal. The request must state how the
20 person or entity making it is affected by or interested in the matter appealed, and must demonstrate a
substantial interest that is not otherwise adequately represented. Except as provided in HER 3.09(d)…,
21 a written request for intervention must be filed with the Hearing Examiner and served on all parties to
the appeal no later than 10 business days prior to the scheduled hearing date.” The scheduled first day
22 of the appeal is March 25th so that this motion to intervene is timely.
23
TreePAC is a Seattle-based membership based political action committee that has consistently
24 supported the retention or mitigation of trees within Seattle, including an appeal last year on the
Department’s Determination of Non-Significance (DNS) for a proposed Non-Project Action
25 amending Seattle Municipal Code (SMC), including repealing and replacing Chapter 25.11 on Tree
Protection. The City Council subsequently retracted their DNS and the appeal was cancelled.
26 TreePAC’s mission includes raising awareness of Urban Forestry issues and pursuing better laws,
funding, and enforcement.

MOTION TO INVERVENE - 1 TreePAC

1
II. RELIEF REQUESTED
2

3 TreePAC moves for an order pursuant to Hearing Examiner Rule 3.09 allowing it to intervene
in the Subject Appeal as the Hearing Examiner determines the limit of TreePAC’s nature and scope.
4 As TreePAC is consistently supporting the city-wide retention or mitigation of trees, we have a
substantial interest in these proceedings that will otherwise not be adequately represented as evident
5 by the list of witnesses and exhibits presented within the Appellant Final Witness & Exhibit List dated
February 12, 2019 and the Department’s Final Witness and Exhibit List dated February 19, 2019. The
6
issued ADU FEIS had very limited content and a subjective environmental assessment of the expected
7 reduction of the city’s tree canopy. It is also apparent that the lack of witnesses and lack of exhibits
relative to the original Subject Appeal tree canopy issues ultimately will not adequately address the
8 impacts without TreePAC’s intervention or right to appeal the final order.

9 Granting TreePAC intervener status in the Subject Appeal will not unduly delay the hearing
process in this matter; nor will it expand the issues beyond those already in the appeal; nor will it
10
prejudice the rights of the parties. At the discretion of the Hearing Examiner, TreePAC would
11 minimally intervene for the sole purpose of preserving the right to appeal (as such intervention may
be permitted at any time up to the start of the hearing.)
12
III. STATEMENTS OF FACT
13
The Seattle City Council conducted a Final EIS for modifications to Accessory Dwelling Units in
14
October 2018. The study of Tree Canopy and Vegetation begins on pages 4-52 to 4-55. The
15 document states the following facts: “Single-family residential areas specifically account for 63
percent of Seattle’s overall canopy cover.” And “Most of Seattle’s urban trees are found in
16 residential areas (representing 67 percent of land area with 72 percent of Seattle’s tree canopy) and
in rights-of-way throughout the city (representing 27 percent of land area and 22 percent of tree
17 canopy).” Thus, the tree canopy within the single-family zoned areas of Seattle are significant.
18
Exhibit 4.2-9 compares the average tree canopy cover in study area lots without a DADU at 30.8%
19 and study area lots with a DADU at 28.6%. It also shows a credible drop in the study area with
new single-family houses constructed since 2010 to be 22.7%. It demonstrates that even with
20 maintaining the rear yard setback of 25% of the lot depth in the new single-family house scenario,
the average canopy cover decrease is well below the targeted citywide canopy cover goals.
21

22 The Final EIS admits that “for development in single-family zones, an exceptional tree can be
removed only if necessary to achieve the maximum allowed lot coverage. Site plans must identify
23 exceptional trees and trees more than two feet in diameter. Section 25.11.090 also requires
mitigation for tree removal. In all zones, each exceptional tree and tree more than two feet in
24 diameter removed during development must be replaced with one or more trees.” Yet the EIS
failed to note that the 2016 LIDAR study indicated there were 3,188 protected tree groves that
25 would not be protected in the proposed ordinance. Thus, the ADU FEIS inadequately applies the
26 current tree protection requirements.

MOTION TO INVERVENE - 2 TreePAC

1 The ADU FEIS also relies on the City Council’s 2018 proposed a new tree protection bill which
they claim without analysis would “increase tree canopy, promote stewardship of existing trees,
2 and improve customer service for the public and applicants.” After thorough review, TreePAC and
3 associate appellants found that the City Council’s proposed revisions to the tree ordinance actually
reduced tree protections, including the elimination of the “Exceptional” tree designation. The
4 referenced tree ordinance proposal, if passed, would have replaced the existing regulations
established in Seattle Municipal Code Chapter 25.11. Generally, the proposed legislation would
5 have maintained the definition of ‘significant trees’ as a tree six inches or more in diameter.
However, it proposed establishing a major / minor - tiered permit for removal of significant trees
6 instead of enforcing unilaterally the current tree permit requirements. Currently, the code allows
7 flexibility in development standards to preserve trees as well as establish replacement
requirements for trees. The current code for single-family zones also requires retaining or
8 replanting trees to equate to a minimum of 2” of tree diameter for every 1,000 square foot of lot
area. The proposed tree ordinance would have allowed in-lieu payment for tree replacement
9 without measuring the environmental benefits and incentives to retain or replant trees. Ordinance
Language for Repeal and Replacement of SMC 25.11 - Seattle's Tree Protection Ordinance called
10
the Tree Regulation Bill - August 16, 2018 has since been retracted. As such, the environmental
11 impacts to trees with the ADU FEIS may no longer by assumed to be covered with some future
ordinance which may not be pursued or, if pursued, would weaken tree protections.
12
In summary, the proposed tree ordinance was flawed in that it:
13 a. Proposed removing any limit on the number of trees that can be removed per year;
b. Proposed removing the prohibition against cutting down Exceptional trees (which are
14
the largest of their species) on developed lots. The definition of Exceptional trees
15 includes Heritage trees and tree groves; and
c. Proposed removing the current prohibition of cutting down any tree over 6" in diameter
16 (DBH) on undeveloped lots.

17 The ADU FEIS states that “Increases in the density of dwelling units can result in impacts from
vegetation and tree removal” (p 4-62). “The anticipated increase in DADU construction under
18
Alternative 2 could result in more vegetation and tree removal than under Alternative 1 (No
19 Action) as more property owners would use some of their rear yard for the footprint of a DADU.
Compared to Alternative 1 (No Action) (1,150 DADUs), Alternative 2 (2,235 DADUs) could
20 result in 1,085 additional DADUs. Allowing a one-story DADU to cover more of the rear yard by
increasing the rear yard coverage limit from 40 percent to 60 percent could also result in a greater
21 loss of vegetation or tree canopy.” The preferred alternative states that the additional rear yard
coverage would apply only of DADU construction did not result in tree removal (p 4-76).
22

23 The impacts of tree loss caused by the proposed ADU FEIS is clearly erroneous by suggesting the
net loss of trees only equates to a small number of 1,085 additional Detached Accessory Dwelling
24 Units multiplied over the gross area of 1,000 square feet per DADU. On page 4-47 of the ADU
FEIS states that “Single-family residential areas currently provide 9,574 acres of tree canopy
25 cover. If all 1,085 additional DADUs maximize the size limit of 1,000 square feet, the total
26 footprint of DADUs would be just under nine 25 acres, or less than 0.3 percent of the total tree
canopy in single-family residential areas. If these nine acres were entirely tree canopy today,
removing them would have minor to negligible impact on the overall tree canopy in single-family

MOTION TO INVERVENE - 3 TreePAC

1 residential areas. This upper-limit estimate also assumes that existing tree regulations would not
require preservation of any trees in the DADU footprint area and that homeowners voluntarily
2 would make no design or siting choices in order to preserve existing trees.”
3
There is numerous errors with the assessment including that it ignores the number of lots that may
4 have both attached and detached ADU. It also under-estimates the likely number of additional
DADU as just 1,085 when FEIS Exhibit 3-19 shows an increasing rate of DADU, with 579 added
5 between its adoption in 2006 to 2017. Similarly, FEIS Exhibit 4.2-7 shows that there are 135,000
single-family zoned lots in Seattle; and from Exhibit 4.2-5 all but 6% of the single-family lots
6 would be at least 3,200 square feet and eligible to be developed with one primary residence and
7 two ADU each with net area of 1,000 square feet. The metric number of lots impacting the tree
canopy and its environmental impacts is flawed.
8
The LiDAR assessment shows the correlation of heat island effect being greater in Seattle areas
9 with reduced tree canopy (figure 1 below). It is evident that the areas of significant tree canopy
also correlates with the areas of Single-Family zoning. Yet, the ADU FEIS fails to account for the
10
environmental impacts of heat islands increasing in areas as the tree canopy is reduced.
11
Figure 1- Seattle 2016 LiDAR Canopy Cover Assessment by Seattle’s Urban Forestry Team (May 8, 2017)
12 http://www.seattle.gov/trees/docs/2016SeattleLiDARCanopyCoverWebinarFINAL050817.pdf

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25 Seattle ranks 10th in the nation for the Heat Island Effect (HIE) which will only get worse by
removing existing trees, tree groves and large heritage trees:
26 http://www.climatecentral.org/wgts/UHI/index.html (See Figure 1 above).

MOTION TO INVERVENE - 4 TreePAC

1 Former Mayor Burgess's Executive Order 27-2017 Tree Protection last year ordered the city to
track tree loss and replacement: "SDCI will require consistent documentation for required tree
2 review on private property, including mitigating canopy cover loss of trees removed and
3 monitoring of planted trees for survival".

4 1. The existing Subject Appeal issues (already in the appeal) that TreePAC wishes to
intervene:
5
a. Firstly, TreePAC would like to intervene on appeal item 2.4 which faults the ADU
6 FEIS in considering an adequate range of alternatives that specifically consider
7 unique qualities of certain areas for the Tree Canopy. For instance, areas of the city
with a higher amount of canopy cover, such as northwest Seattle, will be impacted
8 more by the loss of trees than parts of the city with lower amounts of canopy cover.

10

11

12

13 b. Secondly, TreePAC would like to intervene on appeal item 2.12 which faults the
FEIS in considering the impact to the tree canopy in the increase of rear lot coverages
14 from the current 40% to a proposed 60%.
15

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19

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22

23
c. Thirdly, TreePAC would like to intervene on appeal item 2.13 which faults the FEIS
24 in failing to consider the impact to preserving the tree canopy.

25

26

MOTION TO INVERVENE - 5 TreePAC

1 2. TreePAC represents a city-wide substantial interest in the environmental impacts
from reduction in the canopy cover that is not otherwise adequately represented:
2

3 a. TreePAC argues that within Single Family (SF) zones, the FEIS has failed to identify
the loss of Exceptional trees and Tree Groves that would otherwise prevent the
4 maximum allowed lot coverage. This is especially true if the rear lot coverage is
increased from 40% to 60%.
5 b. TreePAC argues that the DEIS fails to consider the impacts from new foundation
excavations, new walkways, underground and overhead utilities, driveways, etc. that
6 are negative impacts to Critical Root Zones of Exceptional and significant trees and
7 Tree Groves.
c. TreePAC argues that the reduction of minimum lot size being reduced from 4000 to
8 3200 square feet will have greater loss of trees or areas to replant trees that will reach
a comparable amount of canopy cover.
9 d. TreePAC argues that the cumulative long-term impacts to canopy loss must be
calculated assuming the potential maximum buildout of ADU’s within Single-
10
Family zoned properties. Lost open space capable of supporting larger trees would
11 result in long-term impact that is not acknowledged in the DEIS.
e. TreePAC argues that the impacts to canopy be calculated from actual canopy
12 samples from neighborhoods like Bitter Lake, Wallingford and Wedgwood, which
currently have high canopy cover, and compared to neighborhoods like the
13 University District and South Park. The DEIS figure 4.3-15 assumes neighborhoods
only have a few small trees currently so impacts would be minimal with buildout.
14
f. TreePAC argues that the ADU DEIS is significantly flawed in its claim there are
15 “No significant unavoidable impacts to tree canopy.” This is based upon faulty
assumptions of extremely few ADU’s being built in low canopy cover
16 neighborhoods. It also assumes no impacts to Critical Root Zones, no cumulative
impacts from other citywide land use proposals such as the MHA zoning changes.
17 g. TreePAC argues that enforcement of the ADU FEIS tree protections is not possible
without site development plans being issued with Attached and Detached Accessory
18
Dwelling Units applications. Plans and arborist reports would include maps noting
19 the location, tree DBH, canopy cover, and species of trees. Currently, ADU site plans
are exempt from showing existing tree information or consulting an arborist.
20 h. TreePAC argues that the ADU DEIS appeal must discuss potential impacts to
existing Tree Groves. There are just over 3,000 Tree Groves remaining in Seattle.
21 Trees should not be allowed to be removed if it causes a grove to lose status and
protection as a Tree Grove. If one or more trees are removed from a grove that would
22
ordinarily qualify for protection, then the impacts from increased ADU development
23 must be considered.
i. TreePAC maintains that Single Family (SF) zones have 72% of Seattle’s tree canopy
24 on 135,000 lots. Any cumulative impacts of increased ADU development in SF
zones, combined with up-zoning for HALA/MHA and Urban Villages could have
25 significantly negative impacts to Seattle’s tree canopy, Heritage Trees, Exceptional
26 Trees and Tree Groves throughout the city. Cumulative environmental impacts are
not addressed within the ADU FEIS. Underestimated of the number of ADU’s that
might be built, while also ignoring impacts to Critical Root Zones will likely inhibit

MOTION TO INVERVENE - 6 TreePAC

1 the City to reach its intended Tree Canopy Cover goals of 30% in the short term,
much less its 40% in the long term goal.
2 j. The ADU FEIS effectively upzones about 67% of Seattle, which includes reducing
3 minimum lot sizes (allowing potentially increased lot subdivision within SF zones),
increasing lot coverage of structures from 40% to 60%, increased density, and
4 cumulative impacts to the existing tree canopy or future tree canopy capacity.
k. With too many record high temperatures this last decade, combined with record
5 droughts in summer, any significant loss of tree canopy will exacerbate impacts from
Urban Island Heat Effects. TreePAC argues that the ADU FEIS assumption of no
6 impacts to tree canopy misses opportunities to mitigate known heat island impacts.
7 l. TreePAC argues that the FEIS needs to evaluate how much increased runoff from
increased imperious surfaces from new ADU’s given anticipated tree losses. How
8 much more runoff will be added to stress an already overwhelmed our combined
sewage and street runoff during heavy rains and peak storm events? The new Ship
9 Canal Water Quality Project to reduce pollution from water overflows into the ship
canal will need to capture and store more stormwaters during heavy rains. How much
10
more runoff will need to be stored from reductions in existing neighborhood canopy
11 cover in Ballard, Fremont, and Wallingford neighborhoods? This may be estimated
from existing canopy cover data.
12 m. TreePAC argues that the current tree protection code requires consideration of urban
wildlife families and where significant and large trees serve as a wildlife travel way
13 per SMC 25.05.675.N.2.c. The impacts from a loss of natural habitats must be
included within the Subject Appeal. There has been no tree protection considerations
14
that impact important native bird species. The Heron Habitat Helpers
15 (www.heron.helpers.org), which has worked in and protected Kiwanis Memorial
Park Preserve since 2001, have worked to restore and protect trees, not just in the
16 ravine, but within a 500-foot with buffer of developable private land beyond.

17 1) An ordinance that affects the treatment of members of the entire forest

canopy of Seattle and removes and replaces existing legislation clearly
18
requires an environmental impact statement, because it will affect the future
19 forest canopy of a city which professes it intends to increase that canopy.

20 2) A tree has value in the place where it stands. Simply paying a fee to have
someone plant a tree somewhere else ignores the tree’s importance where it
21 is. Removing a tree might increase the visibility of a nest. There is altered
soil under the tree, and shape-loving plants may grow there.
22

23 2. The code SMC 23.44.008 states "Trees are required when single-family dwelling units are
constructed. The minimum number of caliper inches of tree required per lot may be met by
24 using either the tree preservation option or tree planting option described in subsections
23.44.008.I.1.a". The FEIS is flawed in removing this requirement without measuring the
25 environmental impacts.
26
3. The ADU FEIS does not adequately discuss reasonable mitigation measures that would
significantly mitigate the tree canopy impacts of the proposal. On page 4-77, it states that

MOTION TO INVERVENE - 7 TreePAC

1 “No significant adverse impacts are anticipated to land use; therefore, no mitigation
measures are proposed.” Given the obvious impacts on tree canopy documented above, it is
2 unknown whether the development standard amendments proposed as mitigation measures
3 will be sufficient mitigation to avoid probable, significant, adverse impacts from the loss of
tree canopy coverage.
4
c. Conclusion.
5
TreePAC seeks to intervene in these proceedings of the Subject Appeal to assure that the ADU FEIS
6 adequately evaluates and protects trees as an extremely valuable environmental resource. TreePAC
7 concurs with the Subject Appeal relief item 3.2 that indicates the EIS should be remanded to the
Department. The lack FEIS content, and the lack of witnesses and exhibits relative to the impact of
8 tree canopy reduction is truly concerning. Without intervention, the Hearing Examiner may be
deprived of relevant factual information and legal argument to bring the ADU FEIS in full
9 compliance with SEPA. For the foregoing reasons, TreePAC requests that the Hearing Examiner
grant its motion to intervene in the appeal by allowing participation without directly adding days in
10
the hearing schedule. At the minimum, TreePAC requests the right to appeal the order from the
11 hearings.

12

13

14

15

16 On behalf of the TreePAC this 11th day of March, 2019.

17

18
By:
19
Richard Ellison, Vice-President of TREEPAC.
20 c/o TreePAC at 2131 N 132nd St, Seattle, WA 98133

21
Copy Steve Zemke
22 President of TREEPAC
Copy Kevin Orme
23
Board Member of TREEPAC
24 Copy David Moehring
Board Member of TREEPAC
25

26

MOTION TO INVERVENE - 8 TreePAC

1 DISTRIBUTION:
2 HE File Number: W-18-009
Case Name: Appeal by Queen Anne Community Council on the Accessory Dwelling Units FEIS
3 Date Filed: 10/18/2018

4 Appellant:
Queen Anne Community Council
5 1818 1st Avenue West
Seattle, WA 98119
6 Email: mhk@martinhenrykaplan.com
Phone: (206) 682-8600
7
Appellant Legal Counsel:
Jeffrey Eustis
8
4616 25th Ave NE No. 608
Seattle, WA 98105
9 Email: eustislaw@comcast.net
Phone: (206) 919-9383
10
Department:
11 Aly Pennucci, Seattle City Council
Email: ADUEIS@seattle.gov
12 Phone: (206) 684-8148
Mailing: Cara Tomlinson
13 Van Ness Feldman LLP
Email: cat@vnf.com
14 Mailing: Amanda Kleiss
Van Ness Feldman LLP
15 Email: ack@vnf.com

16 Department Legal Counsel:

Tadas Kisielius
17 Van Ness Feldman LLP
719 Second Ave, Ste 1150
18 Seattle, WA 98104
Email: tak@vnf.com
19 Phone: (206) 623-9372
and
Dale Johnson
20 Van Ness Feldman LLP
Email: dnj@vnf.com
21 Department Legal Counsel: Clara Park
Van Ness Feldman LLP
22 Email: cpark@vnf.com

23 And:
Jeff Weber, Assistant City Attorney
24 701 Fifth Ave, Ste 2050
Seattle, WA 98104
25 Email: jeff.weber@seattle.gov
Phone: (206) 684-8200
26 Mailing: Donna Hammonds
Van Ness Feldman
Email: d.hammonds@vns.com
Phone: (206) 623-9372

MOTION TO INVERVENE - 9 TreePAC

 1

2
BEFORE THE HEARING EXAMINER
3
CITY OF SEATTLE
4
In the Matter of the Appeal of the: Hearing Examiner File W-18-009
5
QUEEN ANNE COMMUNITY SEATTLE CITY COUNCIL’S
6 COUNCIL RESPONSE IN OPPOSITION TO
TREEPAC’S MOTION TO INTERVENE
7
of the Final Environmental Impact
8 Statement for the Citywide Implementation
of ADU-FEIS.
9

10 I. INTRODUCTION

11 Seattle City Council (“City”) respectfully requests that the Hearing Examiner deny

12 the Motion to Intervene (“Motion”) filed by TreePAC in this appeal. The Motion should

13 be denied because TreePAC has failed to demonstrate a substantial interest that is not

14 otherwise adequately represented by the Appellant, Queen Anne Community Council

15 (“QACC”), and because TreePAC’s intervention will prejudice the City.

16 II. ARGUMENT

17 The Hearing Examiner Rules of Procedure (“HER” or “Rules”) on intervention

18 state, in relevant part:
19 (a) Intervention is not a substitute means of appealing a decision for those who could
have appealed but failed to do so.
20
(b) A person, organization or other entity who has not filed an appeal may request by
21
motion to participate in the appeal. The request must state how the person or entity
22 making it is affected by or interested in the matter appealed, and must demonstrate
a substantial interest that is not otherwise adequately represented.
23
(c) In determining the merits of a request for intervention, the Hearing Examiner shall
24 consider whether intervention will unduly delay the hearing process, expand the
issues beyond those stated in the appeal, or prejudice the rights of the parties.
25
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 1

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1
HER 3.09. Because TreePAC’s intervention request fails to satisfy HER 3.09’s criteria,
2
the City respectfully requests that the Hearing Examiner deny the Motion.
3
A. TreePAC has failed to demonstrate a substantial interest that is not
4 otherwise represented by QACC
5 First, to warrant intervention, a movant “must demonstrate a substantial interest
6 that is not otherwise adequately represented.” HER 3.09(b). The Rules further provide that
7 intervention cannot be a substitute for appealing a decision by those who could have
8 appealed but did not. Here, TreePAC’s interest in this matter is the same as QACC’s—
9 both parties seek a remand of the subject FEIS, and more precisely, both parties assert that
10 the FEIS’s analysis of tree canopy issues is inadequate. TreePAC’s Motion itself relies on
11 QACC’s Notice of Appeal, which states in relevant part:
12 1.2 . . . QACC advocates on a range of issues, including . . . protection of our trees
13 and parks, etc.

14 2.4 . . . The FEIS fails to consider an adequate range of alternatives that

specifically consider . . . open space and tree canopy[.]
15
2.12 The FElS fails to consider an adequate range of alternatives that specifically
16 considers impacts from increasing the rear lot coverage by 50% from 40% to 60%.
17 The FEIS fails to consider in a meaningful way the impacts to neighbors and the
tree canopy as well. . . . [T]he increase[d] lot coverage on smaller lots would create
18 significant adverse impacts on . . . tree canopy coverage that are not sufficiently
disclosed, discussed and analyzed.
19
2.13 The FEIS fails to consider an adequate range of alternatives that specifically
20
consider the impacts to preserving the tree canopy.
21
Intervention is generally allowed in cases where the intervenor’s interest is
22
currently not represented at all, or in which the existing party’s position is adverse to or
23

24

25
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 2

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1 divergent from the intervenors. 1 In this case, however, TreePAC’s interests and positions

2 are identical to QACC’s. That TreePAC might be more interested in tree canopy issues

3 than the other issues raised by QACC does not change the fact that QACC is actively

4 pursuing and litigating this issue, as evidenced by the Notice of Appeal and by QACC’s

5 Response to the City’s Motion for Partial Dismissal, which expressly preserved QACC’s

6 ability to present evidence relating to tree canopy.

7 Moreover, TreePAC’s Motion fails to acknowledge that TreePAC’s members have

8 actively participated in QACC’s preparation and development of its case, which further

9 reinforces the fact that its interest in the matter is adequately represented. TreePAC’s

10 Motion identifies David Moehring as a board member of TreePAC. During the City’s

11 deposition of Martin Kaplan, QACC’s representative and one of QACC’s identified

12 witnesses, Mr. Kaplan testified that Mr. Moehring had played an extensive role in the

13 creation of one of QACC’s reports to which Mr. Kaplan plans to introduce and testify at

14 hearing. 2 Indeed, Mr. Kaplan testified that Mr. Moehring prepared “all the drawings” in

15 Mr. Kaplan’s exhibit that are not otherwise reproductions of images in the City’s EIS. 3

16 That exhibit includes evidence relating to tree canopy issues, including the same

17
1
See, e.g., Loveless v. Yantis, 82 Wn.2d 754, 759, 513 P.2d 1023 (1973) (permitting property owners to
18
intervene in action concerning denial of plat by county, because the owners’ interests were not adequately
represented by county; despite county's obligation to represent all residents, intervenors showed a
19
“sometimes antagonistic viewpoint to that of the county as a whole”); Fritz v. Gorton, 8 Wn. App. 658, 661,
509 P.2d 83 (1973) (permitting League of Women Voters to intervene in action testing validity of
20
legislation, where League demonstrated “an interest divergent from that represented by the Attorney
General.”); cf. Westerman v. Cary, 125 Wn.2d 277, 304, 892 P.2d 1067 (1994) (affirming denial of
21
prosecutor’s request to intervene, because the existing party, the public defender’s office, “very adequately
contested” the order at issue in the case); Spokane Cty. v. State, 136 Wn.2d 644, 650, 966 P.2d 305 (1998)
22
(affirming denial of union’s motion to intervene because although the union could be affected by the
ultimate outcome of the case, its interest was not direct and the union presented no argument different from
23
the arguments advanced by the Public Employment Relations Commission).
2
24 Declaration of Clara Park (“Park Decl.”), Ex. A (excerpt of transcript of deposition of Martin Kaplan, at
45–52).
25 3
Id. at 52.
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 3

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1 illustration of the “heat island effect” attached to TreePAC’s Motion, as well as an

2 illustration of large trees and tree groves in the City: 4

10

11

12

13

14

15
TreePAC’s involvement in QACC’s case confirms that QACC represents its
16
interests, and reveals that the Motion is at heart a late attempt to appeal the FEIS by
17
substitute means and to circumvent the deadlines for exchanging witness and exhibit lists.
18
B. TreePAC’s intervention days before hearing would prejudice the City
19
In determining the merits of TreePAC’s request, the prejudice to the City must
20
also be considered. 5 Intervention should not be allowed if it would prejudice the rights of
21
the original parties. 6 Although the Rules allow a motion to intervene to be filed up to ten
22

23 4
Park Decl., Ex. B (excerpt of document identified by QACC as QACC’s Ex. 20 at 37). See also Park Decl.,
Ex. A at 68–69.
24 5
HER 3.09(c).
6
25 Wilson Sporting Goods Co. v. Pedersen, 76 Wn. App. 300, 303, 886 P.2d 203, 205 (1994).
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 4

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1 business days before hearing, this case is unique in that it has been set with an extended

2 schedule to allow the parties to conduct discovery and gather evidence. QACC filed its

3 appeal on October 18, 2018. TreePAC’s November 2018 newsletter references QACC’s

4 appeal, showing that TreePAC has known about the appeal for months. 7 On November 9,

5 2018, the Examiner issued a Prehearing Order setting forth all of the deadlines for this

6 matter. The deadlines have all passed weeks ago, including the deadline for final witness

7 and exhibit lists (due on February 12, 2019 for QACC). The parties have completed

8 discovery, including depositions and document production.

9 Allowing TreePAC to intervene now, ostensibly to present new witnesses and new

10 evidence, would prejudice the City’s ability to prepare its case. 8 From the time that the

11 Examiner issues a decision on TreePAC’s Motion, the City will have less than a week, at

12 most, to prepare to address TreePAC’s witnesses and exhibits, assuming TreePAC

13 provides immediate disclosures. Tellingly, TreePAC ignores the difficulties caused by its

14 intervention. 9 A highly technical matter like an appeal of the adequacy of an FEIS, which

15 focuses on expert and technical testimony, warrants the time for preparation and discovery

16 that the Examiner gave the parties, not mere days. Given TreePAC’s knowledge of the

17 appeal months before the instant Motion, TreePAC has no justification for ambushing the

18 City days before hearing.

19

20 7
Park Decl., Ex. C.
8
Cf. State ex rel. Keeler v. Port of Peninsula, 89 Wn.2d 764, 767, 575 P.2d 713 (1978) (allowing
21
intervention and finding no prejudice because the motion to intervene “was made within a month of filing
the original action and well before trial”).
22 9
TreePAC’s intervention would prejudice the City not only because of the difficulties of addressing as-yet
23 undisclosed witnesses and exhibits, but also because of TreePAC’s misunderstandings of the subject
proposal. For example, TreePAC claims the proposal would “reduc[e] minimum lot sizes (allowing
24 potentially increased lot subdivision within SF zones),” and would eliminate tree requirements for single-
family dwelling units. Motion at 7. The proposal does not change the current minimum lot sizes for
25 subdivision, nor does it eliminate tree requirements for single-family dwelling units. See FEIS at 2-4 to 2-7.
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 5

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1 III. CONCLUSION

2 Because TreePAC does not meet the intervention criteria set forth in HER 3.09,
3 the City respectfully requests that the Hearing Examiner deny the Motion to Intervene. If
4 TreePAC is allowed to intervene, its participation should be strictly limited to the
5 exclusive issue of tree canopy as articulated in QACC’s Notice of Appeal.
6 DATED this 14th day of March, 2019.
7 VAN NESS FELDMAN LLP
8 /s/ Tadas Kisielius, WSBA No. 28734
Dale Johnson, WSBA No. 26629
9 Clara Park, WSBA No. 52255
10 719 Second Avenue, Suite 1150
Seattle, WA 98104
11 Tel: (206) 623-9372
E-mail: tak@vnf.com; dnj@vnf.com;
12 cpark@vnf.com; ack@vnf.com
13 Attorneys for Seattle City Council
14
PETER S. HOLMES
15 Seattle City Attorney
16 /s/Jeff Weber, WSBA No. 24496
Assistant City Attorneys
17 Seattle City Attorney’s Office
18 701 Fifth Ave., Suite 2050
Seattle, WA 98104-7091
19 Ph: (206) 684-8200
Fax: (206) 684-8284
20 Email: jeff.weber@seattle.gov
21 Attorneys for Seattle City Council
22

23

24

25
SEATTLE CITY COUNCIL’S RESPONSE IN OPPOSITION
TO TREEPAC’S MOTION TO INTERVENE- 6

719 Second Avenue, Suite 1150

99548
Seattle, WA 98104
(206) 623-9372
 1 BEFORE THE HEARING EXAMINER
CITY OF SEATTLE
2
In the Matter of the Appeal of the: Hearing Examiner File W-18-009
3

4 QUEEN ANNE COMMUNITY CERTIFICATE OF SERVICE

COUNCIL
5
of the Final Environmental Impact
6 Statement for the Citywide Implementation
of ADU-FEIS.
7

8
I, Amanda Kleiss, declare as follows:
9
That I am over the age of 18 years, not a party to this action, and competent to be a
10
witness herein;
11
That I, as paralegal in the office of Van Ness Feldman, caused true and correct
12
copies of the following documents to be delivered as set forth below:
13
1. Seattle City Council’s Response in Opposition to TreePAC’s Motion to
14 Intervene;
2. Declaration of Clara Park in Support of Response in Opposition to TreePAC’s
15 Motion to Intervene with Exhibits A–C;
3. Certificate of Service;
16

17 and that on March 14, 2019, I addressed said documents and deposited them for delivery

18 as follows:

19
SEATTLE HEARING EXAMINER
Barbara Dykes Ehrlichman By Web Portal
20
Hearing Examiner
21 700 Fifth Avenue, Suite 4000
Seattle, WA 98104
22

23

24

25

CERTIFICATE OF SERVICE - 1
719 Second Avenue, Suite 1150
99548
Seattle, WA 98104
(206) 623-9372
 1 QUEEN ANNE COMMUNITY COUNCIL
Martin Henry Kaplan, Architect AIA By eService
2 360 Highland Drive
Seattle, WA 98109
3 mhk@martinhenrykaplan.com

4 QUEEN ANNE COMMUNITY COUNCIL

Jeffrey M. Eustis By eService
5 Law Offices of Jeffrey M. Eustis
4616 – 25th Avenue NE, No. 608
6 Seattle, WA 98105
Eustislaw@comcast.net
7
TREEePAC
8 Richard Ellison, Vice President By eService
2131 N 132nd Street By First Class Mail
9 Seattle, WA 98133
climbwall@msn.com; urbanbalance@activist.com;
10 dmoehring@consultant.com; ovaltinelatte@hotmail.com;
stevezemke@msn.com; queenannecc@gmail.com
11
I certify under penalty of perjury under the laws of the State of Washington that
12
the foregoing is true and correct.
13
EXECUTED at Seattle, Washington on this 14th day of March, 2019.
14

15 /s/ Amanda C. Kleiss

Declarant
16

17

18

19

20

21

22

23

24

25

CERTIFICATE OF SERVICE - 2
719 Second Avenue, Suite 1150
99548
Seattle, WA 98104
(206) 623-9372