Gerend lawsuit: both sides claim victory; development moratorium enacted

By Miki Mullor
Editor

A much anticipated ruling by the Growth Management Hearing Board rejects former Mayor Don Gerend claims that the new concurrency rules were illegal. But the GMHB faults the City on procedural errors.  The Board gave the City until October 30 to correct the errors.  

The Board’s decision caps a two year long struggle between the majority City Council and supporters of the Town Center project over the new concurrency rules.

In response to the ruling, the City Council enacted an immediate development moratorium to give the City time to address these procedural issues.

Traffic and development 

The subject of Gerend’s lawsuit is a technical measure of traffic congestion called volume over capacity, or V/C in short. The measure works by dividing the number of cars that pass through a road by a set capacity given to the road for the maximum acceptable number of cars that can travel through it. The ratio between the two numbers represents a level of congestion. If the ratio goes above a certain value, set by the City Council, then future development cannot be approved. 

This method is fairly simple to implement and it is hard to fudge. 

The V-over-C was enacted by the majority City Council in November 2018 as a safety net after it was revealed that the concurrency method staff proposed did not measure congestion and was a black box that can be manipulated. 

Mayor Karen Moran told The Comment that the City’s infrastructure cannot support the growth of the City. 

Mayor Karen Moran

“The impact on our roads and schools is a grave concern to our City’s residents. This is why the City has enacted concurrency, a tool from the Growth Management Act that protects communities in Washington State from overgrowth,” she said.

The newly enacted V/C indeed recognized unacceptable congestion on Sahalee Way and Eastlake Sammamish Parkway.  The former City Council exempted Eastlake Sammamish Parkway from V/C, so its failure to pass V/C test did not impact development. 

However, Sahalee Way failed to pass V/C concurrency, which was viewed as a threat to major development, specifically Phase I of the Town Center, a 400 unit development in the heart of the city.  Council Member Pam Stuart attempted to exempt the Town Center from the impact of Sahalee Way V/C in May 2019, but failed.

Lawsuit filed 

In July 2019, Gerend filed his lawsuit against the City, lodging nine different arguments against the V/C.  (Technically, the action was a Petition to the GMHB seeking to void the ordinance. The action is similar to a lawsuit.)

Don Gerend

Gerend’s main argument, which was echoed during council meetings by Gerend’s allies, members Stuart, Jason Ritchie and Ramiro Valderrama, is that the City Council majority illegally used concurrency to stop development. Gerend sought to overturn the City Council’s decision and to find it invalid.  Had Gerend won that argument, the V/C would have been deemed illegal and development in the City could have continued unchecked.

A few weeks after Gerend filed his lawsuit, controversy erupted in the city after staff allowed Town Center Phase I to pass concurrency, even though Sahalee Way failed the V/C test.  

Two weeks later, Gerend asked to postpone his lawsuit for 90 days. The City agreed, without hesitation.  The 90 days postponement would have put the lawsuit well past the city council election of November 2019. 

Election PACs war 

Backed by $115,000 given to him by the Town Center developers, Gerend formed a political PAC to support three pro-Town Center candidates, Karen McKnight, Karen Howe and Rituja Indapure.  His PAC, Livable Sammamish, broke records of money raised for a Sammamish campaign, with 99% of the money raised from out-of-city developers. 

Opposing Gerend were residents Michael Scoles, Wally Pereyra and Harry Shedd, who formed an opposing, residents-only PAC, called Sammamish Life.  Scoles raised $45,000, of which Perarya and Shedd donated $35,000.  Sammamish Life backed incumbent Christie Malchow and newcomers Ken Gamblin and Kent Treen.

With a record turnout of close to 20,000 voters, Malchow, Gamblin and Treen won the election in landslide victories.

City wins issues of substance  

Gerend’s lawsuit raised nine different issues against the V/C; six issues were of substance, three were procedural. 

On the issues of substance, Gerend asked the Board to rule that the V/C in itself is illegal according to the GMA. For example, Gerend complained that the V/C was based on an erroneous methodology for determining roadway capacities.  Gerend also argued that the V/C is a de facto moratorium on development.  

Had Gerend won on any of the issues of substance, it would have invalidated the V/C and nullified the City Council’s action as illegal unless the City successfully appealed the ruling. 

The Board rejected each of Gerend’s six legal issues of substance, that:

  1. [V/C] Failed to be guided by GMA Goals 
  2. Failure of public participation
  3. [V/C is a] Use of clearly erroneous methodology 
  4. [V/C is] Precluding urban densities 
  5. [V/C causes] Insufficient land for development 
  6. [V/C is a] De Facto Moratorium 

On these issues, the Board ruled that Gerend did not meet his burden to prove the City Council’s actions were illegal. Gerend told the Sammamish Comment he does not plan to appeal this ruling. 

Gerend wins procedural issues 

Gerend won on three procedural issues he raised on the process of how the V/C was implemented. The issues are correctable and the Board has given the City until October 30 to do so.   Two of the issues the Board identified have to do with the City not updating its Comprehensive Plan when the V/C was enacted. 

The GMA mandates that each City adopts and maintains a Comprehensive Plan, known in short as Comp Plan, which serves as a blueprint on how the City is set up. The Comp Plan has chapters that deal with traffic, housing, finance, resources, etc. 

The details of concurrency are usually in the transportation chapter of the Comp Plan and are implemented in the city code. When the City Council enacted the V/C, City Attorney Mike Kenyon advised the Council that the V/C details did not need to be integrated into the Comp Plan. 

Mike Kenyon

The Board disagreed with Kenyon. “The City’s Ordinance is the wrong vehicle to impose those standards [V/C];... transportation concurrency standards and methodologies must be set out in the City’s Comprehensive Plan.” 

The other procedural issue the Board identified has to do with the State Environmental Policy Act (SEPA) - a State law that mandates cities to consider environmental impacts of action taken, such as changes to Comp Plans.  

The Board found that the City conducted the required review before the final V/C details were determined; therefore the review could not have considered the full impact of V/C, as required by SEPA law.

Invalidation of V/C - for now

In its order, the Board declared the V/C ordinance invalid because of the procedural error related to the SEPA review and failure to include it in the Comp Plan.  

Without including the V/C in the Comp Plan, the Board concluded that it would be impossible to estimate the impact of the V/C on other parts of the Comp Plan, such as financing and land use (zoning), hence conflicting with the GMA goals of providing infrastructure and protecting the environment.

The Board concluded that, On the appropriate facts, the Board could find that failure to properly conduct the required environmental review for a city or county action interfered with fulfillment of the GMA's environmental goal and, upon such a finding, could invalidate the relevant ordinance” (Gerend vs. City of Sammamish, Final Decision and Order)

The Board acknowledged the errors can be corrected, thereby ordering the V/C ordinance be “remanded to the City for action to bring it into compliance according to the schedule set forth.” 

Interim City Manager David Rudat told The Comment that the City is looking at the possibility of requesting an extension of time to make the changes required by the GMHB [Board] decision. 

“The decision currently requires that all necessary changes be made within six months, a time frame that may impose a significant challenge for the level of thoroughness we aim to achieve, particularly given the constraints of the current health crisis facing our community,” Rudat said.

Until the City completes the needed action, the Board held the V/C is invalid. This is similar to grounding a plane, like Boeing’s 737, until the problem can be fixed.  Once the City fixes the issues, it will present its actions to the Board in a Compliance Hearing scheduled for December 17, 2020, or earlier.  

According to the Growth Management Hearing Board handbook, “a Determination of Invalidity will be rescinded if the Board finds there is no longer substantial interference with the goals of the Act.” 

Moratorium enacted

In response to the Board’s decision, City Council immediately enacted a development moratorium on Tuesday night to ensure no development applications can be approved while the V/C ordinance is held invalid.  It is expected the City will lift the moratorium once the Board rescinds the invalidity order of the V/C, later this year. 

The moratorium does not stop development already underway or development applications that are in the process of approval - specifically, Town Center Phase I, the 400 units project by STCA, is not impacted by the moratorium. 

Comp Plan re-envisioned? 

The Board’s ruling is forcing the City to do what some believe should have been completed last year, a Comp Plan rewrite: if the infrastructure in Sammamish is inadequate, as the V/C test shows, then the City needs to amend its Comp Plan to either show how the infrastructure can be improved, and how the City will pay for it. 

Otherwise, the City will need to reassess its zoning or otherwise pause development until the infrastructure can catch up--essentially, stop kicking the can down the road. 

Gerend is pleased 

When reached for comments, Gerend declared a clear victory on the outcome of the case: 

“I was very pleased to learn that the Growth Management Hearings Board agreed with me and invalidated the City’s transportation concurrency ordinance, remanding it back to the City for compliance action. I consider this to be a clear victory because the Board took the extraordinary step of nullifying the city’s concurrency standards stating that they substantially interfered with the Growth Management Act.  I look forward to the City rethinking its approach to the Growth Management Act, over the next six months as required by the order.”

City is also pleased - “favorable outcome”

“I am delighted that the Growth Management Hearing Board has upheld our use of concurrency, which clearly validates our use of the tool while infrastructure improvement is achieved,” said Moran in an emailed statement.

“The City will also act upon the GMHB’s [Board’s] request to update the Comprehensive Plan so that it fully reflects our approach to infrastructure and growth. In the meantime, council has implemented a moratorium on new development permits while we make these updates.

“This favorable outcome is outstanding for our residents,” concluded Moran.

Reference: 

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1 thought on “Gerend lawsuit: both sides claim victory; development moratorium enacted

  1. I am glad to see that our new mayor gets what we resident want. It is also a good thing that this ruling sets a clear path to resolution. I am worried about the effect of moratorium, as my understanding is that in the past such have disproportionally affected small construction projects from individuals while the large one from builders know to navigate the situation – they have years of construction backlog for already approved projects and now and then jump through the cracks with ready applications during any moratorium gap, rebuilding their backlog.

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