Councilmember Robertson was excused for personal reasons.
Agenda adopted by unanimous consent.
This week’s
Shoreline Walks is a walk around Twin Ponds Park. For details go to
shorelinewa.gov/shorelinewalksA reminder that
Primary Election ballots are due August 3.
Council ReportsCouncilmember McGlashan again testified at the Sound Transit Board meeting in support of 522/523 bus rapid transit (BRT). There might be a modified plan under consideration. Whether there will be parking garages is still unknown.
Public CommentSpeaking for the protection of established trees
- Bill Turner, Shoreline
- Nancy Morris, Shoreline
- Kathleen Russell, Shoreline, Save Shoreline Trees
Jackie Kurle, Shoreline
- Encourages ongoing oversight as the enhanced shelter nears capacity.
Approval of the Consent CalendarConsent Calendar approved unanimously by a vote of 6-0.
Action Item 8(a) QUASI-JUDICIAL: Closed-Record Appeal Hearing - Shoreline Preservation Society, Regarding Naval Hospital Chapel Landmark DesignationCity Attorney Margaret KingBecause the Council will be acting as a quasi-judicial body, the Appearance of Fairness Doctrine applies to their decision tonight. Councilmembers must show that they can act in a fair and impartial manner, free from improper influence.
The City Attorney previously questioned the Councilmembers.
Two Councilmembers advised they had had contact with some of the parties involved. Attorney King asks for additional information.
Councilmember Robertson reported she had had some contact. However, since she is absent from this meeting for personal unrelated reasons, there is no need to pursue.
Deputy Mayor Scully reported he was contacted by Janet Way who asked him a couple of procedural questions. He did not respond to Ms. Way except to say he didn’t know the answers. He contacted the City Manager and staff responded to Ms. Way. He did not receive any additional information. He states he can act in a fair and impartial manner.
Ms. King does not see a need to ask anyone to recuse themselves.
Does DSHS or the Shoreline Landmark Commission have any questions or concerns?
No concerns or objections.
We can proceed.
This is a Closed-Record Hearing which means that the City Council’s decision is to be based solely on the Record before the City Council and on the arguments and supporting exhibits of the parties. Under the rules of appeal, the Council does not have the authority to request additional information from others, including DSHS.
The decision being appealed is the Shoreline Landmarks Commission’s revised designation of the Naval Hospital Chapel, located within the Fircrest Campus at 1902 NE 150th St.
More specifically, the appeal is of the Commission’s decision to revise its original designation of the Chapel by reducing the 2.7-acre area surrounding the Chapel to 2.6 acres by revising the eastern boundary to include a section south of the contributing lower parking lot and to exclude a 60-foot by 260-foot section north of the lower parking lot. The revised designation was based on a Request for Reconsideration filed by the Washington State Department of Social and Health Services (DSHS).
Because of the nature of this action item, this will be a more structured presentation than normally seen at Council meetings. While the Appeal Hearing will be open to the public, only SPS, DSHS/DNR, and a representative for the Shoreline Commission may participate. The City Attorney will be present to assist the Council in the appeal proceedings.
The participants:
1. SPS (Shoreline Preservation Society) seeking Historical Landmark status
2. DSHS/DNR (Dept. of Social and Health Services / Dept. of Natural Resources) owners of the property
3. Commission (Shoreline Landmarks Commission) whose purpose is to designate, preserve, protect, enhance, and perpetuate historic landmarks
The process:The schedule for oral argument of the appeal proceeding is as follows:
- SPS’s (Shoreline Preservation Society) Opening Argument 45 minutes
- DSHS/DNR’s Response Argument 40 minutes (Dept. of Social and Health Services/ Dept. of Natural Resources).
- Commission’s (Shoreline Landmark’s Commission) Response 15 minutes
- SPS’s Rebuttal 10 minutes
After each oral argument, Councilmembers have the opportunity to ask clarifying questions, but will not discuss the topic until the conclusion. At that time they will meet in a Closed Session. At the end of that session, Council will return with their findings.
Burden of proof:The burden of proof to show the Shoreline Landmark Commission’s (Commission) decision was in error is on the Shoreline Preservation Society (SPS).
SPS’s opening argument included a detailed description of the Navy Chapel’s importance as an historical landmark presented by Janet Way.
NOTE: This is an appeal of the Commission’s decision to alter the boundary of the original designation as a result of DSHS’s Request for Reconsideration. It is not an appeal of the Shoreline Commission’s decision to designate the Fircrest Naval Chapel as a Shoreline Landmark. As a result I am including only those remarks relative to the boundary. For details about the Chapel, please go to the staff report at
www.shorelinewa.gov
 |
| DSHS requested change |
This sketch is an amateur attempt to superimpose SAS “after reconsideration map” over the original designation map. The parking lot (the U-shape on the right or southeast side of the property) is wanted by both SPS and DHSH/DNR.
The issues:
Did the Shoreline Landmark Commission err
- in granting the Motion for Reconsideration filed by DSHS because it did not apply the proper legal standard for a motion for reconsideration?
- when it concluded that revising the eastern boundary to exclude the proposed 60 feet by 240 feet section would not have a significant adverse impact on the integrity and character of the Chapel setting?
- because it failed to give due consideration to the findings set forth in the February 2, 2021, Findings and Fact and Decision of the Shoreline Landmark Commission?
- when it did not accept testimony and arguments on protecting the existing landmark from environmental harm?
- to the extent it considered evidence of DSHS’s intent to use and develop the Fircrest property in the future?
- to the extent its decision to revise the boundary was a response to a threat of litigation by DSHS
- Was the Appeal Action the result of an unfair and improper public process due to a lack of reasonable public notice and unfair timeline causing substantial harm to Appellant?
- Was the Appeal Action the result of an unlawful and unfair hearing process because Appellants were not given the opportunity to rebut DSHS arguments recently presented to Appellant?
- Was DSHS required to notify the Washington State Department of Archaeology and Historic Preservation or tribal groups of its motion for reconsideration?
Following arguments by all parties, Councilmembers may ask clarifying questions about rules and procedures.
Motion and second to extend the meeting to 11:00pm is agreed by unanimous consent.Council meets with the City Attorney at a Closed Session in a different Zoom meeting.
Council returns to open session.The Mayor conducted the following discussion as is normally done during a Council meeting.Mayor Hall: Does anyone object to asking for staff documents that were most recently sent? We want to make sure we have all the information we need to make the decision.
- No objection.
- Documents are emailed to Council.
- Councilmembers appear to be reading the documents.
Mayor Hall: Do we need more time to review?
No.
Are we voting on each issue as we go? Or at the end?
Both. We will have to direct staff to prepare an ordinance that remands, revises or upholds the Commission’s decision. Because there are so many issues, if we seem to reach consensus on each individual one we don’t need the formality of voting on each one. If we get to one where we’re divided, then I think we need to ask for a motion and then put it to a vote. And at the end, we will be voting on the totality of what we’re directing staff to put in the Ordinance.
1. Did the Shoreline Landmark Commission err
in granting the Motion for Reconsideration filed by DSHS because it did not apply the proper legal standard for a motion for reconsideration?
The original decision had to be based on an error or omission of fact, or new information that was not readily available. I urge Council to vote that the Commission did properly consider the motion for Reconsideration, regardless of the result. I believe they properly considered it. DSHS’s argument was founded in an argument there were errors or omissions of fact: that the Commission erroneously designated the entirety of the parcel rather than a section of it that DSHS thought they should exclude.
I thought SAS proposed a map, DSHS proposed a different map, and the Commission came up with their own map. I don’t see the underlying error.
This doesn’t fit cleanly into parameters. If one party proposed a map, the other party proposed a different map, and a decision was reached, then it shouldn’t be called a Reconsideration but just a continuation of the hearing. Procedurally, it doesn’t make a difference. They are still entitled to review here.
Because the map was mischaracterized?
Yes, so they are entitled to argue either that it was an error of fact how it was characterized, or it was an error of fact how it was presented on the map.
We heard that the Commission felt they did it properly. Their rules state that any party can petition the decision based on the grounds that it was based on error of fact. DSHS did submit a petition. The Commission reconsidered it and rendered a revised map. That map, then, had the parties looking differently at the northern and southern parts. It appears the Commission did it correctly.
I came to the same conclusion. After reading the minutes carefully to determine what map/boundaries they were talking about, I noticed there were some that didn’t appear to be 100% sure of the boundaries they were discussing. There was confusion and I felt that was enough, but then there was the new information of whether there would be a material effect on the landmark designation. I think Reconsideration was appropriate.
Council reaches general consensus.
2. Did the Shoreline Landmark Commission err
when it concluded that revising the eastern boundary to exclude the proposed 60 feet by 240 feet section would not have a significant adverse impact on the integrity and character of the Chapel setting?
Note: the section being discussed is the parking lot (refer to maps).
I don’t believe they did. It was never clear to me how the exact boundaries were selected. They seemed to be based on the roads. I believe asking for Reconsideration on any of the boundaries would be appropriate.
I came to a different conclusion. I don’t see how you can reach any conclusion, using any standard, that the character of the forest isn’t important to the integrity of the structure. The photographs and historical description show that the forest is integral to the importance of the site. If the boundaries are not retained, who knows what could be built on the property that could adversely affect the Chapel setting of peace and tranquility.
I don’t think we’re tasked to make a decision on what could possibly be built there.
I agree. We can’t make decisions on what might possibly be built there. Owners change; circumstances change. Something can be built next to any landmark at any time and anywhere. I think it’s important in this case that there’s a buffer.
But we do have to think about that. All kinds of uses could go in there. Also, the new boundary doesn’t make sense - it’s not a uniform shape, it doesn’t follow the road, it doesn’t follow the contour lines, it doesn’t follow a path - it’s just kind of there.
I agree. There are several references that there are pathways to the Chapel that are important to the site. To exclude the path (from the parking lot) does not seem logical.
You need to have a topographic map to see how the changes could affect the feel of the Chapel. Based on the topography, I agree with the map after the Reconsideration. There is a slope down to the (parking lot) and the feel of the Chapel is based on what you can see.
I have no problem with the map. Area to the west of the Chapel is flat so there is a lot of visibility. To the east, there’s the hill sloping away.
The Commission stated they agree that the forest is significant but disagree on the scope based on photos and visits. Based on the deliberations that the Commission went through are evidence enough to me that there is no single perfect boundary. I don’t see that they made an error. Reasonable people can disagree. I’m ok with the boundaries and don’t see a need to second-guess that decision.
Do we have a consensus?
4 people think it is not an error.
MOTION to extend the meeting to midnight. Agreed by unanimous consent.
3. Did the Shoreline Landmark Commission err
because it failed to give due consideration to the findings set forth in the February 2, 2021, Findings and Fact and Decision of the Shoreline Landmark Commission?
Council does not see an error.
4. Did the Shoreline Landmark Commission err
when it did not accept testimony and arguments on protecting the existing landmark from environmental harm?
I’m torn on this one. Testimony was in the record. They didn’t say you may not provide this testimony. But the health of the forest had not been considered. It is not appropriate to discuss the forest as a habitat for birds or animals, but the health of the forest is integral to protecting the landmark. If there is a problem what would be the solution? I’m not sure.
Agree the health of the forest is important as part of the landmark, but one of the things we have to recognize is that Shoreline, King County and Washington State codes do not grant the Commission the ability to consider environmental issues. Their focus is on buildings/structures.
I think they accepted all of the testimony and arguments that they got. I don’t see an error here. Did they adequately consider whether the environmental harm to the forest would impact the Chapel? I don’t see that they did. But there’s no evidence that a different boundary would have a different impact.
5. Did the Shoreline Landmark Commission err
to the extent it considered evidence of DSHS’s intent to use and develop the Fircrest property in the future?
I don’t see that their decision to revise the boundary was based on any specific plan to develop or not develop in the area.
No disagreement.
6. Did the Shoreline Landmark Commission err
to the extent its decision to revise the boundary was a response to a threat of litigation by DSHS?
The attorney clearly tried to intimidate, to negotiate a resolution instead of arguing the facts of the law which should have been done. These are volunteers - no different from a jury. Some people are clearly intimidated by this. This generated a lot of anger and a loss of decorum.
I’m not convinced this didn’t have an impact on the decision. I don’t think we should let this one go.
Not everyone is intimated. This is bad lawyering but I don’t think it changed the outcome.
I’m undecided. He was just stating the facts: if things go one way, then this will be our next step.
The reaction of one of the Commissioners to recuse himself because of how he felt he was being treated, cannot be seen as harmless. We don’t know what would have happened had he stayed.
It doesn’t bother me enough to send it back.
7. Was the Appeal Action the result of an unfair and improper public process due to a lack of reasonable public notice and unfair timeline causing substantial harm to Appellant?
Having a hearing was optional. The Commission could have chosen to review the record and revise or reverse their decision without holding a hearing. They elected to hold a public hearing. They provided notice 6 days in advance instead of the correct notice of 10 days in advance.
They should have followed the public process (of 10 days notice). The people of the State through the Legislature, have spoken loud and clear that with violations of the public process we need to stop and redo. 6 days just wasn’t enough time and this is something fairly major. I think the proper decision is a remand for another hearing.
Did it cause substantial damage? Not sure it would have made a difference.
I agree an extra 3.5 days probably would not have affected the outcome, but rules are rules and a notice is a notice. It should have been rescheduled.
We face the same thing in what we do. We delay and re-notice. What is a harmless error? 6 days to prepare instead of 10? Definitely less time but no way to know what would have changed. Although it’s going to involve a lot of work by a lot of parties, and the outcome may be the same, we need to play by the rules and remand.
8. Was the Appeal Action the result of an unlawful and unfair hearing process because Appellants were not given the opportunity to rebut DSHS arguments recently presented to Appellant?
Council doesn’t have a problem with this one.
9. Was DSHS required to notify the Washington State Department of Archaeology and Historic Preservation or tribal groups of its motion for reconsideration?
Based on the record and the testimony we’ve heard, it seems pretty clear that this action requesting reconsiderations is not subject to this notification law.
Motion and second to direct staff to prepare findings and conclusions that tracks the majority of the Council’s comments tonight,
- in favor of the appellant SPS (Shoreline Preservation Society) on issue #7, and
- in favor of the respondent DSHS/DNR (Dept. of Social and Health Services/ Dept. of Natural Resources) on the remaining issues, and
- present that to Council at the next available meeting, and
- remand to the Landmark Commission on issue #7.
Attorney King offers guidance in the wording of the motion.
City Manager, Debbie Tarry advises the next available meeting is August 9th
VOTE
Passes unanimously by a vote of 6-0.City Attorney King confirms that Councilmembers are still bound by the appearance of fairness as outline at the beginning of this discussion.
MEETING ADJOURNED
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