Rezoning plans for the Providence Heights property have cleared a hurdle.

The Issaquah City Council ruled the city’s determination of non-significance for the Providence Heights property is valid during a Dec. 5 special meeting.

In a 5-2 vote, the council denied the State Environmental Policy Act (SEPA) appeal made by the Providence Point Umbrella Association (PPUA). The council upheld the city’s previously issued determination of non-significance for a comprehensive plan amendment that would rezone eight parcels, including the 40-acre Providence Heights property.

The Issaquah School District (ISD) recently bought the Providence Heights property, which is adjacent to the Providence Point retirement community, with the intent to build several schools there.

The ruling was based on evidence and testimony presented at a Dec. 2 SEPA appeal hearing. It was a quasi-judicial setting with the city council playing the part of judge and jury. The hearing lasted for about four hours and some 70 people attended. Then council decision making took place Dec. 5.

The actual rezoning and comprehensive plan amendment will be up for adoption on Dec. 16.

Background

With the passing of ISD’s 2016 bond to build four new schools, the district scoured the area for spaces to accommodate the growing district’s needs. The district purchased the Providence Heights property with the intention to build a comprehensive high school, an elementary school, and a football stadium on the campus.

However, the current city zoning and code requirements of the 40-acre property, made up of three parcels, would only allow for the construction of a middle school, an elementary school, and athletic fields such as baseball, football and soccer fields that would be open to public use.

The city administration’s proposed changes to the 2019 comprehensive plan and zoning map include redesignation and zoning of those properties.

However, the city’s planning policy commission (PPC) recommended at an Oct. 24 meeting that the city retain its current land-use and zoning of parcels one and two. That zoning prohibits ISD from building the fourth high school on the site.

The PCP also recommended designating parcel three as a community facilities-open space to create a buffer between any school amenities and the nearby residential area.

All proposed land-use changes require a SEPA process, identifying the potential environmental impacts. For any proposed action, the city determines whether they think there will be significant environmental impacts. A determination of significance then leads to further analysis and mitigation discussions.

In the case of the eight parcels, including the Providence Heights property, the city previously issued a SEPA determination of non-significance.

The hearing

Following the city’s Oct. 9 final determination of non-significance, the PPUA — represented by J. Richard Aramburu — submitted an appeal Oct. 22.

According to PPUA’s notice of appeal, Providence Point would be impacted by the construction of schools on the property because of “adverse traffic, access, noise, and lighting impacts, loss of existing mature trees, incompatible land-use impacts, and drainage impacts, among others…”

ISD has yet to submit a site plan to the city for a high school or any other buildings on the property, but renderings have been posted to the district’s website.

According to the ISD’s attorney, Jessica Skelton, the district has developed only conceptual feasibility drawings related to the site and no specific plans. She said there have been more than 50 iterations considered up to this point.

PPUA’s appeal states that the city’s environmental checklist prepared for the project was inadequate and deficient.

The environmental checklist was created by the city’s long-range planning manager, Trish Heinonen. At the hearing, Heinonen said the checklist was created for all eight parcels included in the comprehensive plan amendment and was not specific to the Providence Heights property.

Aramburu asked her why this was the case, especially if the city knew the school district had the intention to put a high school on the campus.

Heinonen explained that the checklist is part of a phased SEPA review, a process often used for non-project rezones. Since the district has not submitted any formal site plans, it is considered a non-project.

“This is not considered a project related rezone because the city is a public entity requesting a change for public purpose on the site and that was consistent with the community facilities-facilities zone,” Heinonen said during her testimony.

A phased SEPA review is usually completed in two steps. The first is more general, Heinonen said. It looks at all parcels included in the comprehensive plan amendment “in the big picture,” analyzing the collective environmental impacts.

The second phase only occurs when a specific project is officially submitted to the city, Heinonen said.

“A project SEPA is much more specific. You have a site plan, something the city has accepted to do your environmental review on and there’s a lot more specificity to that environmental review,” she said.

Keith Niven, the city’s director of economic development and director of development services, was the one to approve the SEPA determination of non-significance. He said Heinonen was correct in her development of her phase one SEPA environmental checklist.

Aramburu asked Niven why a phased SEPA review was done for the comprehensive plan amendments.

Niven said a lead agency — meaning the city — determines the appropriate scope and level of detail of an environmental review to coincide with meaningful points in the planning and decision making process.

“There are things that are ready to be considered and thought through, and then there are others that are not going to be ready until a site plan is submitted,” he said.

Council deliberation

At the Dec. 5 special meeting, the council reviewed the hearing’s record before coming to a decision. The discussion lasted two hours and about 50 people were in the audience.

The concept of phased review was in question. The council discussed whether it was appropriate in this case to use non-project phased review when they are aware of the project(s) that will likely be going forward on the property.

Another point of contention was whether the city’s completion of the environmental checklist was complete and adequate.

Some council members found it insufficient to “put off” investigating potential environmental impacts into phase two. Councilmember Chris Reh said he would rather consider impacts to the environment sooner than later, noting that that’s the intention of SEPA.

Councilmember Stacy Goodman — an attorney — cited case laws from other land-use rezone situations in Washington State that were provided in hearing evidence. She asserted several times that not including data to support the determination of non-significance in the record is not adhering to the law.

“I feel what the city has done in this case is woefully, woefully inadequate,” she said.

Goodman said there must be investigation shown in the record by the applicant that justifies why further environmental study is not needed, and that needs to be shown in the environmental checklist. She said it’s not appropriate to just ignore that and assume it will take place in phase two.

“There is an obligation to provide a basis with evidence for the determination of non-significance. That is missing. That’s what Washington law says we have to have, and that’s not there,” Goodman said. “That type of investigation, that kind of examination was not done at all.”

However, the majority of council disagreed. Aside from Reh, the rest felt it was OK to hold off on deeper study until phase two.

“If phased review is not appropriate, and this was the entirety of the SEPA then clearly the answer would be no. But if there’s a phased review, and there’s another review coming down the road, then my answer isn’t an obvious no,” said council president Tola Marts.

Councilmember Lindsey Walsh read from some of the legal evidence and state laws provided, echoing Niven’s previous argument that phased review assists agencies “to focus on issues that are ready” and not discuss issues “that are already decided or not yet ready.”

“My understanding of the case that we heard was that the project ideas that had been posted on the (school district’s) website were not yet ready for review,” Walsh said. “Thus a phased review approach in this case was appropriate based on the state law.”

Councilmember Barbara de Michele said phased review of land-use rezoning is essentially a normal “paper shuffle” function of city government.

“One of the purposes of the phased review is to help governments… be efficient in our use of funds to do studies, and if we are asking the city to do a deep analysis…at the very, very beginning of the project before a plan is on the table, we are asking the city to spend money that then will have to be done again. We know it’s going to have to be done over when we have an exact plan,” she said.

Goodman and Reh disagreed.

“We’re all aware that the school district wants to put schools on their property. And, in fact, we had hundreds of people tell us, and the school district tell us, that we really, really, really need to put schools on that property for all of these reasons,” Goodman said. “Still, there was zero investigation.”

“Case law dictates that you don’t just get to turn your cheek the other way just because you don’t have specific plans submitted…There is an obligation to fill out the checklist with the information that you have,” Goodman added.

Since the comprehensive plan amendment deals with all eight parcels at once, other council members asserted it was OK to remain less specific for now, noting there would be future review of any proposed projects and site plans.

“What you’re suggesting is that you can just roll in a whole bunch of actions, a whole bunch of things into a comp plan amendment and everything just kind of disappears under one non project,” Goodman said. “That’s clearly not the law. Everything would go under the radar, there would be no review, there would be no environmental review. And that’s not how it works.”

“And if the school district had been the applicant, the city staff never would have accepted these answers,” she added.

Goodman said she thought it was fine for the city to be the applicant, but that the city should have the same obligation.

“The school district is very clearly the proponent of this — the school district asked for this to be rezoned. And it’s completely fine for the city to be the one that fills out that checklist. But I don’t think the city’s obligation is different,” she said. “If we could get around answering all of those questions, simply by having somebody else be the applicant, then that’s tantamount to gaming the system, and I don’t think that that’s how SEPA works. And I don’t think that’s what Washington law is.”

Still, the majority of council agreed that further review could take place later on.

Councilmember Paul Winterstein said they seemed to be at a loss for a single right answer by law, although one side was more supported than the other.

“I’m hearing two citations — case law, Washington law — that seem like they’re in conflict. It seems like whatever side of one you choose as your preference, you can make it as evidence here. You can make a very strong argument for one or the other,” Winterstein said. “I don’t like being put in that situation because it means it’s going to be more of a judgment than based on law.”

He said he believes there will be further SEPA review in a future phase.

“I’ve heard strong arguments for and against, and I know that there’s going to be a detailed SEPA done,” he said. “I don’t think there was anything clearly erroneous. In other words, I wouldn’t remand it back on this issue.”

The appeal was denied in a 5-2 vote with councilmembers Reh and Goodman dissenting.

Reactions

Upon the council’s decision to deny the appeal, not everyone was enthusiastic.

Local couple Harry Stoffer and Jill Brahm are residents of Providence Point. They share their concern that the council voted to uphold the city’s determination even though, “one of their own” asserted it does not follow the law.

“Stacy Goodman, a lawyer, tried repeatedly to point out to her colleagues on the council that the law establishes what this SEPA review is supposed to accomplish, and that the one done by the city staff, and ultimately approved by the council, does not comply by the law,” Stoffer said.

They mentioned that if the rezoning is approved, there will be more chances for the PPUA to challenge the decision down the road.

Stoffer said he was disappointed, albeit not surprised, by the council’s decision.

“After seeing the PPC listen to all the testimony and determine that the school district’s proposal was not acceptable, I had raised my hopes some that perhaps council members would also listen to information and come to a conclusion based on the facts instead of on the lobbying of the school district,” Stoffer said. “Unfortunately I don’t think they are acting as an unbiased arbitrator.”

Stoffer said he thinks the fact that the SEPA review process is phased for this land and its projects became a “crutch” for the city’s argument.

“You should try to get it right the first time,” he said.

He said he understands that the school district would get to do its own SEPA review on a project plan — during phase two — but he is not optimistic about that.

“I would like to think we could trust them, but I’m afraid that we can’t,” he said. “The best we can hope for right now is that there will be enough pressure to get the school district to scale back the project. They’re simply trying to jam too much onto that property.”

Brahm said the purpose of a determination of non-significance document with many items marked as no problem without documentation was confusing to her, especially for a non-project.

“I’m not quite sure of what value it is,” she said. “It seemed nebulous. Is it equivalent to a rubber stamp or does it have any substance?”

“The council has said we all need to get along. Well so far that’s translated to ‘Providence Point needs to accept what the school system is going to do.’ But there’s been no give by the school system,” Brahm added.

ISD sent out a press release on Dec. 10 outlining new commitments proposed based on hearing the concerns of the Providence Point community.

It said that if the council approves the rezone that ISD proposes to include “vegetated buffers and sight obscuring landscape screening substantially in excess of the applicable minimum code requirements.”

It also said ISD proposes to commit to mitigate traffic and encourage less single occupancy vehicle travel, stay in thorough communication with nearby property owners, and design any stadium for the property to minimize impact.

The release also stated that district officials have met with PPUA representatives to discuss concerns and possible solutions.

“While we did not leave those meetings with an agreement,” Superintendent Ron Thiele said in the press release, “we appreciated the opportunity to engage with the community and learn directly from residents about their needs and apprehensions with regard to the impact of the proposed property use and development.

“I hope that our proposed commitments help address some of those concerns, while allowing us to build the schools our families and students need and expect.”

Council member Chris Reh speaks during a Dec. 5 special Issaquah city council meeting. They ultimately decided to deny a SEPA appeal filed by the Providence Point Umbrella Association regarding the Providence Heights property. Natalie DeFord/staff photo

Natalie DeFord/staff photo Ray Liaw, special legal counsel to the Issaquah City Council, speaks at the Dec. 5 special meeting when the city council decided to uphold the city’s SEPA determination of non-significance for eight parcels including the Providence Heights property. The determination was appealed by the Providence Point Umbrella Association in October.