Two city efforts might run afoul of state and federal environmental and historic preservation rules.
A lawsuit over the deep-bore tunnel referendum has put the city in the awkward position of defending two apparently contradictory stances that could be problematic regarding the project's Environmental Impact Statement (EIS).
And state Historic Preservation Officer Allyson Brooks has sent a letter warning City Council member Sally Clark, chairwoman of the Committee on the Built Environment, that the scale of proposed up-zoning for Pioneer Square could potentially jeopardize the district's National Historic Register status, thus eliminating federal tax breaks and incentives for preserving the neighborhood.
In the first case, environmental attorney David Bricklin argued in a Crosscut op-ed last week that the city and state were trying to have it both ways on the tunnel project. City Attorney Pete Holmes is arguing on the one hand that the City Council has made a final policy decision to go ahead with the project, and because of that, it's not a decision eligible for the ballot. The measure is seen by tunnel proponents as an effort to kill the project.
On the other hand, the Washington State Department of Transportation (WSDOT) has not yet completed its EIS on the tunnel, which is required to comply with both the Federal and State Environmental Policy Acts (NEPA and SEPA). An EIS is supposed to give consideration to alternatives if a project has major adverse impacts on heritage and the environment. The EIS is supposed to be finished before a project gets the final go-ahead. Bricklin argued that:
The dilemma stems from the Seattle City Council’s (and the state's) efforts to circumvent the requirements of the State Environmental Policy Act....That law mandates a "look before you leap" approach to decision making. State and city agencies must prepare an environmental impact statement...before making major decisions.
The laws and rules on this process are complex, but Bricklin's argument rang a bell. That's because a year ago, I covered a lawsuit in federal court over the proposed demolition of the Federal Reserve Bank Building in downtown Seattle (a preview of the case here and outcome here). A citizen's group objected to plans to demolish the bank, which has a fascinating history.
There were many aspects to the case, but arguments that the bank had not adhered to federal law won the day. In his ruling, Federal Judge Robert Lasnik said that the Federal Reserve Bank could not sell a building first, then do an EIS afterwards, which it had done. That's because the EIS had to legitimately look at alternatives to demolition. If the building was already sold to a developer, for example, the bank could not consider an alternative that would keep it standing, such as transferring it to another federal agency that might want to occupy it.
EISs are supposed to take place before "the die [is] otherwise cast." Based on legal precedents, the Federal Reserve was found to be in violation of NEPA, the sale was nullified, and the bank was sent back to square one in the EIS process.
I contacted the Seattle land-use attorney who won the case for The Committee for the Preservation of the Seattle Federal Reserve Bank Building, Peter Eglick, and asked his opinion of Bricklin's arguments. He agreed that the city was stuck making a conflicting argument. "Somehow," he writes, "the City is irrevocably 'pregnant' with the tunnel for purposes of the referendum, but conception has not yet taken place for purposes of SEPA."
Without passing any judgments on the legality of the referendum case, the conflict over the EIS suggests there could be more litigation ahead. The mayor's office says that WSDOT is more than a month late in providing it with a final EIS.
Meanwhile, the City Council is considering significant changes to zoning and height restrictions in South Downtown, including Pioneer Square. Allowing more height there, especially to bring in more upscale residents, has a lot of support. Former Mayor Charles Royer wrote positively about the concept here on Crosscut.
But others are deeply concerned about the scale of some of the proposed changes. Former Seattle City Councilmember Peter Steinbrueck says that the Council should avoid "'feel good' legislation that raises false hope for economic revitalization through densification." He argues that changes in the Square need to be properly scaled and done sensitively.
Steinbrueck's father, architect Victor Steinbrueck, famous for activism that saved the Pike Place Market, did the earliest city survey of the future historic district in the 1950s and later said that the successful battle to save the Square was essential to later being able to keep the bulldozers away from the Market. At a presentation on the history of Seattle's architecture at the Seattle Public Library recently, University of Washington professor Jeffrey Karl Ochsner said that the Square was preserved in part due to the fact that Seattle's downtown moved north instead of redeveloping on top of the Square at the south end. That left a very rare intact 19th-century district that was later protected. Peter Steinbrueck points out that its scale is inherently a part of what makes it worth saving, and high-rising it with buildings two or three times historic heights would be "ruinous."
He's not the only one who is concerned. On April 5, Allyson Brooks, the head of the State Department of Archaeology and Historic Preservation, sent a letter to Councilwoman Sally Clark expressing concern about some of the proposed zoning and development standards for South Downtown, specifically Pioneer Square and Chinatown, both of which are on the National Register of Historic Places. While the state doesn't regulate the historic districts, it does review whether they continue to qualify for listing on the National Register. That status allows property owners to qualify for federal tax credits and other benefits that aid in preservation and economic development. If the state believes the integrity of the district has been compromised, National Register status can be revoked.
Brooks wrote Clark that "we are concerned about the affect of significantly increased height limits on Pioneer Square's historic character and the long-term viability of the neighborhood as a National Register District." She went on:
To be clear, our agency absolutely supports efforts by the City and all interested parties to sustain and strengthen the district. We also appreciate and strongly support the City's vision of South Downtown as a vibrant, 24-hour community. Overall, our perspective on the most recent proposal is based on our concern that in working to revitalize the neighborhood, the long-term and cumulative impacts may serve to dilute the historic qualities and integrity of Pioneer Square. This will weaken the ability of private investment to rehabilitate buildings as there would no longer be access to federal or state tax incentive programs.
Specific concerns included allowing rooftop additions, changes that would give owners of older buildings incentives to tear them down instead of rehabilitate them, and new 130-foot heights that "will bring about a definite change in the scale and feeling of the streetscapes and spaces...," all of which could endanger the district's historic status. Neighborhood look and feel are very important. Brooks says that she has since had a good meeting with Clark and Councilman Tim Burgess on the subject. The next meeting of the Built Environment Committee is today (Apr. 13) at 9:30 am.
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