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Petitioners Response to Motion to Dismiss Laurelhurst Community

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Petitioners Response to Motion to Dismiss Laurelhurst Community Powered By Docstoc
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                          BEFORE THE CENTRAL PUGET SOUND GROWTH
 7
                               MANAGEMENT HEARINGS BOARD

 8   LAURELHURST COMMUNITY CLUB,
     FRIENDS OF BROOKLYN, RAVENNA-
 9   BRYANT COMMUNITY ASSOCIATION,                      NO. 03-3-0016 (“Laurelhurst II”)
     UNIVERSITY DISTRICT COMMUNITY
10   COUNCIL, UNIVERSITY PARK
11
     COMMUNITY CLUB, SEATTLE                            PETITIONERS’ RESPONSE TO CITY OF
     DISPLACEMENT COALITION,                            SEATTLE’S AND UNIVERSITY OF
12   HAWTHORNE HILLS COMMUNITY                          WASHINGTON’S MOTION TO DISMISS
     COUNCIL, and NORTHEAST DISTRICT
13   COUNCIL,
14                                 Petitioners,
     vs.
15

16   CITY OF SEATTLE, a municipal corporation;
     UNIVERSITY OF WASHINGTON, an agency
17   of the State of Washington
18                                 Respondents.
19
                                         I.       INTRODUCTION
20
            Playing fast and loose with the facts, respondents the City of Seattle (“City”) and the
21
     University of Washington (“University”) move the Board to dismiss petitioners’ appeal, hoping
22
     the Board will be quick to disclaim any authority for review.
23
            Having argued to the Board last spring that the University’s Ten-Year Campus Master Plan
24
     did not come within the Board’s subject matter jurisdiction because it was nothing more than a site
25
     specific development approval, approved pursuant to specific development regulations such as the

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 1                                                  1001 Fourth Avenue, Suite 4200
                                                                                      P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                  (206) 292-1144
 1   Major Institution Code and the 1998 City-University Agreement, the City and University now
 2   astonishingly turn around and argue that the 1998 Agreement is really not a development
 3   regulation after all. Instead, they claim, the 1998 Agreement is a contract and its mandatory
 4   leasing restrictions are mere “contractual provisions” that can be amended or even stricken

 5   entirely, without review by the Board under the Growth Management Act (“GMA”).

 6             Respondents rely on this new characterization of the 1998 Agreement to explain why they

 7   failed to respect the GMA public participation goals and requirements when they decided to

 8   eliminate leasing restrictions last spring. However, in doing so, respondents ignore the Board’s

 9   own words in its June 18, 2003 Order on Motions in Laurelhurst I when it explicitly concluded

10   that the 1998 Agreement was a GMA development regulation. June 18, 2003, Order on Motions

11
     at 11.
               The Board should call a halt to the evasive shell game the City and University play with
12
     petitioners and this Board pretending that they can label – and re-label – a regulation to avoid
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     compliance with the GMA. The alternative is an unbecoming abuse of the public process.
14

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         II.      COUNTERSTATEMENT TO RESPONDENTS’ FACTUAL BACKGROUND1
16
               The City and University claim – without any citation to the record –they realized that
17
     “amendments to the 1998 Agreement were necessary” because, they assert, the University had
18

19   nearly reached its lease limit in 2002. Motion to Dismiss at 3. However, the 1998 Agreement

20   includes an express requirement that alteration of the lease limits was to occur through an

21   established City process. 1998 Agreement, Exhibit C4.3, Section II.E.6:
22
               Effect of Master Planning and Neighborhood Planning. Changes to the lease limit may be
23             proposed through the master planning adoption or amendment process, consistent with the
               process that may be set forth in the adopted neighborhood plans; except that in the Master
24

     1
25    Respondents base their motion to dismiss on a record that contains huge gaps and requires supplementation. See,
     Petitioner’s Motion to Supplement The Record.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 2                                                              1001 Fourth Avenue, Suite 4200
                                                                                                  P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                              (206) 292-1144
 1            Plan adopted for the period from 2001 to 2011, the amount of leased space within the
              Primary and Secondary Impact Zones shall be limited to 550,000 gross square feet (gsf)
 2
              and to the “permitted leasing zone” depicted in Exhibit A and any change to these
 3
              limitations shall be proposed as a major amendment to the Master Plan.2 (emphasis
              added).
 4
     Respondents never explain their discard of this process.
 5
              The City and University present the “factual” background for the leasing and acquisition
 6

 7
     policies in the 1998 Agreement in such a way as to suggest that the policies were internal to the

 8   University and merely tolerated by the City. E.g., Motion to Dismiss, pp. 3 and 7. In fact, the

 9   record suggests quite the opposite is true. In 1977, the City and University adopted a joint
10   statement of goals and policies (Exhibit A to the Motion to Dismiss) which, among other things,
11
     established leasing and acquisition “policies” for the University. However, the University’s
12
     “leasing policy” did not include any quantitative restrictions, such as a square foot limit or
13
     specified areas where new leasing activity was prohibited outright. C1.64 at p. 8. In fact, the
14
     University’s “leasing policy” contained absolutely no mandatory limits on the ability of the
15

16   University to lease or acquire property outside its MIO boundary.3 Id. The quantitative leasing

17   restrictions, including the square foot limit were introduced in the first City approved Master Plan
18   in 1985 (General Physical Development Plan). Id. The reporting requirements for leasing
19
     2
       “Major Amendments” to the CMP are governed by Section II.C.5 of the Agreement, which requires that the
20
     amendment and environmental review go through the same process as the initial Master Plan. This process includes
     review by CUCAC, DCLU, and the Hearing Examiner, prior to consideration by the Council. In other words, the
21
     Major Amendment process as envisioned in the 1998 City University Agreement ensures early and continuous
     participation by affected groups.
22   3
       The City/University fail to attach the actual 1977 policy respecting “leasing off-campus facilities,” an attachment to
     the Joint Statement. However, the body of the Joint Statement provides only that:
23             The University, in planning an allocating its uses of land to satisfy its teaching, research and public service
               missions, shall make every effort … (5) to limit the leasing of off-campus facilities in accordance with a
24             published policy (attached) which restricts leasing off campus to those uses which are compatible with the
               general area and which are not appropriately located on campus because of inadequate capacity of [sic]
25             incompatibility.
     1977 Joint Statement of Goals and Policies, at p. 2.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 3                                                                   1001 Fourth Avenue, Suite 4200
                                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                   (206) 292-1144
 1   activities was included in the 1983 City-University Agreement, settling the City’s lawsuit against
 2
     the University to enforce SEPA and land use regulation regarding a proposed expansion of
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     University Hospital. Id., at 9. 4
 4
              The City and University further assert – as part of their motion’s “factual background”
 5
     that, under the terms of the 1998 Agreement, the leasing restrictions can only be changed with the
 6

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     University’s agreement. Motion to Dismiss at 3. However, the agreement controlling University

 8   use and development cannot be altered without agreement by both the University and the City.

 9   The University has no more authority than the City to unilaterally amend the policies in the 1998
10   Agreement. It was required to – and did – seek the City’s approval.
11
              The respondents’ claims that the University had nearly reached its limit of lease space in
12
     the University District and that this somehow barred researchers from leasing additional space in
13
     the area (Motion at 3), is also unsupported. In fact, at the end of the 2000 reporting period, the
14
     University of Washington was already leasing 400,000 gross square feet (gsf) within its Major
15

16   Institution Overlay (“MIO”) boundary to non-University uses. City/DCLU Report to City Council

17   on Major Institution Status Reports, December 21, 2001, UW 61 at p. 15. This square footage
18   vastly exceeds – by 400% -- the amount of MIO space leased by other Major Institutions for
19
     unrelated uses, with the exception of Swedish Medical Center, which, coincidently leases
20
     absolutely no property outside (but within 2,500 feet of) its MIO Boundary.5
21

22   4
       The 1998 Agreement updated the 1983 City-University Agreement “in anticipation of development of a new Master
     Plan.” March 27, 2003, Memorandum to Councilmembers from Legislative Staff re Historical Background – UW
23   Lease Lid, C-1.64, at p. 10. The amendments were initially negotiated with communities surrounding the University
     and the University and then adopted by the City. Id.
24   5
       DCLU provides the following reasons for including in its status reports statistics concerning Major Institution
     leasing activity to non-Major Institution uses:
25            Since late 1996, Major Institutions have been permitted more flexibility in leasing and purchasing properties
              for their use outside but within 2,500 feet of the MIO district boundaries. Due to this change, DCLU was

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 4                                                                1001 Fourth Avenue, Suite 4200
                                                                                                    P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                (206) 292-1144
 1           To be considered a “non-major institution use” under the Major Institution Code, a use
 2
     cannot be described as “functionally integrated with or substantively related to, the central mission
 3
     of the major institution.” SMC 23.69.008. Therefore, whatever these non-Major Institution uses
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     are on the UW Campus, even as of three years ago they were occupying 400,000 square feet of
 5
     valuable space which respondents tell this Board is needed by the University “to meet its
 6

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     important public educational and research mission.” The University’s need for additional

 8   “flexibility” through unlimited leasing and acquisition in the vulnerable neighborhoods

 9   immediately surrounding its current MIO boundary is simply not supported by these record facts.
10           Notwithstanding the UW statistics included in DCLU’s previous Master Institution status
11
     reports, DCLU’s January 7, 2003 Status Report (provided to the City Council immediately prior to
12
     the Council’s consideration of the lease lid amendment) inaccurately stated that the University of
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     Washington had never reported on its leasing activity to non-University uses within the campus
14
     boundary, and omitted the information – previously reported – for the past five years. Proposed
15

16   LCC 1 at 30. It is the (inaccurate) information contained in this report summary that would have

17   been relied upon by City Councilmembers and staff, as well as the public, in considering the
18   University’s leasing activities over the last few years. Curiously, this status report was
19
     subsequently omitted from the record.
20

21
            directed by City Council to track leasing activities to non-Major Institution uses within MIO district
22          boundaries. The purpose is to monitor this activity to determine if there appear to be unintended negative
            impacts on the surrounding area. For example, do the institutions seem to be leasing or purchasing properties
23          outside their boundaries when they appear to have available space within their boundaries as indicated by
            leases to non-Major Institution uses? It was not the intent of the legislation to give Major Institutions this
24          flexibility in the surrounding area in order to create opportunities within the MIO district boundary for any
            significant increase in leasing space to non-Major Institution uses. Review of the leasing information
25          submitted by the Major Institutions indicates no trend in this direction.5
     UW-61, at p. 14.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 5                                                               1001 Fourth Avenue, Suite 4200
                                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                               (206) 292-1144
 1          The leasing restrictions in the 1998 Agreement were the result of decades of negotiations
 2
     between the University and the City – and the neighborhoods – attempting to balance the
 3
     University’s purported need for “flexibility” in development and expansion, and the recognized
 4
     adverse land use impacts this growth and development would have on the neighborhoods
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     surrounding the University. C1.64, at pp. 8-10; Declaration of Jeannie Hale at ¶¶4-6. In addition,
 6

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     the leasing restrictions were adopted into the City of Seattle’s Land Use Code as part of the 1998

 8   Agreement. June 3, 2003, City and University Rebuttal on Motion to Dismiss Petition for Review

 9   in Laurelhurst I at pp. 2-3; SMC 23.69.006. The amendment of the 1998 Agreement by the City
10   and the University to eliminate the leasing restrictions constitutes an amendment of development
11
     regulations just as though the City had undertaken to amend the leasing restrictions it imposes on
12
     other major institutions in SMC 23.69.022. The amendment of development regulations by GMA
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     planning cities and state agencies requires compliance with the GMA and with local
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     comprehensive plan goals and policies. Such action is also subject to this Board’s review pursuant
15

16   to the GMA.

17                                         III.    ARGUMENT
18   A.     The 1998 City-University Agreement Leasing and Acquisition Restrictions – And
            Their Sudden Elimination – Are Subject To This Board’s Jurisdiction.
19

20          1.      This Board Has Previously Concluded That The 1998 City-University
                    Agreement Is A GMA Development Regulation
21
            Respondents’ Motion to Dismiss is based on a single assertion that directly contradicts
22
     conclusions made by this Board in the Laurelhurst I appeal concerning the 1998 City-University
23

24   Agreement:

25



     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 6                                                 1001 Fourth Avenue, Suite 4200
                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                 (206) 292-1144
 1            The Board concludes that the MIMP is governed by GMA development regulations,
              namely, the MIO and the 1998 City-University Agreement.
 2

 3
     June 18, 2003, Order on Motions at 11.6 The Board explained:

 4            The 1998 City-University Agreement was adopted as part of the MIO that governs all
              institutions also found in SMC 23.69, specifically, SMC 23.69.006. [citations omitted]
 5            Thus, instead of 23.69.006 acting as an exception to 23.69.024 the University must comply
              with the MIO and the additional requirements of 23.69.006 that reflect the agreement.
 6

 7
     Id. Thus, the Board has already held that the terms of the 1998 City-University Agreement were

 8   part of the City’s “GMA development regulations” that “govern the land use approvals for major

 9   institutions, including the University.” Id. The City and the University, which were parties to
10   Laurelhurst I and happy to accept its benefits, are bound by its conclusions here.
11
              Moreover, the Board did not draw these conclusions in a vacuum. These conclusions
12
     reflected arguments made by the City and University in their attempts to shield yet another
13
     planning document/development regulation – the University’s Ten-Year Campus Master Plan --
14
     from the Board’s purview.7 In those arguments, respondents noted:
15

16            After a lengthy public process and extensive negotiations involving the University, the
              City, CUCAC, and several affected community groups, including petitioners Laurelhurst
17            Community Club and the University Park Community Club,8 the City and University in
              1998 entered into a new agreement (“the 1998 Agreement”) regarding future master
18            planning for the University. . . . The City’s Major Institution Ordinance was then
              amended to incorporate the terms of the 1998 Agreement by reference. SMC 23.69.006.
19

20   June 3, 2003, Respondent and Intervenor’s Rebuttal to Petitioner’s Response to Motion to Dismiss

21   Petition for Review, in Laurelhurst I, at pp. 2-3. Respondents further explained:

22
     6
       See, also, Board’s Order on Motions, at p. 12.
23   Id. at p. 12.
     7
        As the Board is aware, Petitioners respectfully disagree with the Board’s conclusion that the UW CMP is not subject
24   to the Board’s jurisdiction, and have appealed that decision to King County Superior Court pursuant to RCW
     36.70A.300(5) and the Administrative Procedures Act (Ch. 34.05 RCW).
     8
25     It is interesting that respondents previously touted to the Board the communities’ participation in the negotiations for
     the 1998 Agreement, even as they now pretend the communities are (or should be) invisible.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 7                                                                   1001 Fourth Avenue, Suite 4200
                                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                   (206) 292-1144
 1          In approving the CMP, the City reviewed the record to determine whether the University’s
            application satisfied the specific approval criteria established in the 1998 Agreement,
 2
            which was incorporated by reference into the Major Institutions Ordinance. SMC
 3
            23.69.006(B). These criteria included whether the proposed Master Plan: 1) allowed the
            City to fulfill its mission of public institution, research, and services; 2) adequately
 4          mitigated the environmental impacts of proposed development; and 3) reasonably balanced
            “the public benefits of development and change with the need to maintain livability and
 5          vitality of adjacent neighborhoods.” 1998 Agreement, Section II(B)(8)(d), (9), (11).
 6
     Id. at pp. 22-23. In light of the fact that is was they who characterized the 1998 Agreement as a
 7
     development regulation when doing so helped persuade the Board not to review the University’s
 8
     CMP, the Board should not participate in respondents’ game of hide the ball. It would set an
 9
     insidious precedent, under which GMA planning jurisdictions are encouraged to attempt to
10

11
     disguise new legislation as non-GMA related, rather than proceeding with the open public

12   discourse upon which the GMA is based.

13          2.      The Board’s Conclusions Are Supported By The GMA Definition Of
                    “Development Regulation”
14
            The City’s indispensable role as a party to the 1998 City-University Agreement (and the
15

16   recent amendment thereof) clearly places the Agreement in the category of “development

17   regulations” or “regulation” under the GMA. Notably, the GMA definition of “development
18   regulation” encompasses a long, non-exclusive list of “controls”:
19
            “Development regulations” or “regulation” means the controls placed on development or
20          land use activities by a County or City, including but not limited to, zoning ordinances,
            critical areas ordinances, shoreline master programs, official controls, planned unit
21          development ordinances, subdivision ordinances, and binding site plan ordinances together
            with any amendments thereto.
22
     RCW 36.70A.030(7), City/University Motion at pp. 4-5.
23

24          The leasing and acquisition policies plainly regulate University “development,” in light of

25   the way that term is defined in the City’s Major Institution Code:


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 8                                                 1001 Fourth Avenue, Suite 4200
                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                 (206) 292-1144
 1          The establishment of any new Major Institution use or the expansion of an existing Major
            Institution use, the relocation of an existing Major Institution use for a period of at least
 2
            one (1) year, or the vacation of streets for such uses.
 3
     SMC 23.69.007. The leasing and acquisition restrictions in the 1998 Agreement regulate
 4
     University “land use activities” in that they constitute an official control on land use and
 5
     development. Obviously, a University of Washington major institution use is regulated –
 6

 7
     precluded – on a particular site if the University can neither acquire nor lease the property. This is

 8   precisely what the lease lid did.

 9          The 1998 City-University Agreement constitutes land use planning and regulation. That
10   the regulation is carried out through an Agreement between the City and the University that was
11
     adopted into the City’s Land Use Code (SMC 23.69.006) makes it no less an official City
12
     instrument controlling development and land use activities.
13
            3.      Substance and Policy Context of City/University Action Shows Leasing
14                  Restrictions Are Development Regulations Subject to Board Review.
15
            In its June 18, 2003 Order, along with concluding that the 1998 Agreement – like the
16
     Major Institution Code -- was a GMA development regulation, this Board noted the importance of
17
     reviewing “substance and policy context” when making a determination regarding its authority to
18
     review a local action:
19          In making the determination of whether a local action is subject to the GMA generally and
            Board jurisdiction specifically, it is important to focus on the substance and policy context
20
            of that action, rather than the procedure employed or the label attached. … That
21          determination must be made after reviewing many facts and factors.

22   June 18, 2003 Order on Motions, CPSGMHB No. 03-3-0008 (Laurelhurst I), at p.11-12.
23   Substantively, as discussed above, the lease restrictions are an official control on University land
24
     use and development activity. As for the policy context, there was no mistaking that any
25
     substantial alteration to or elimination of the lease lid was an issue that was to be addressed

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 9                                                    1001 Fourth Avenue, Suite 4200
                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                    (206) 292-1144
 1   through a major amendment to the 2003 Campus Master Plan – a lengthy GMA process that
 2
     included review by the City-University Community Advisory Committee, the Department of
 3
     Design, Construction and Land Use, the City Hearing Examiner, and the City Council. Until the
 4
     City and University filed their motion last Friday, elimination of the lease lid was never (publicly)
 5
     described as or considered a “contractual” issue.
 6

 7
            4.      The City’s Major Institution Code Regulates In Exactly The Same Manner As
                    The 1998 Agreement – Right Down To Lease Restrictions Within 2,500 Feet
 8                  Of An MIO Boundary

 9          The City and University pretend that the leasing restrictions placed on the University as
10   part of the City’s regulation of its major institutions are not development regulations because they
11
     regulate ownership rather than use. In doing so, they argue as if the concept of such regulation is
12
     foreign to the City’s Land Use Code. In fact, the City’s Major Institution Code – an integral part
13
     of the City’s Land Use Code that implements its GMA Comprehensive Plan -- regulates large
14
     portions of the City based on no other criteria than the institutions’ ownership and control of the
15

16   subject property.

17          A short explanation of the City’s development regulations for “Major Institutions” will
18   provide the necessary context and explain the terminology. Within the Seattle Land Use Code,
19
     SMC Chapter 23.69 regulates Seattle’s major educational and medical institutions. Chapter 23.69
20
     is commonly referred to as the “Major Institution Ordinance”. “Major Institution” is defined by
21
     SMC 23.84.025 to mean:
22
            [A]n institution providing medical or educational services to the community. A Major
23
            Institution, by nature of its function and size, dominates and has the potential to change the
24          character of the surrounding area and/or create significant negative impacts on the area.
            To qualify as a Major Institution, an institution must have a minimum site size of sixty
25          thousand (60,000) square feet of which fifty thousand (50,000) square feet must be


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 10                                                  1001 Fourth Avenue, Suite 4200
                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                   (206) 292-1144
 1              contiguous, and have a minimum gross floor area of three hundred thousand (300,000)
                square feet. The institution may be located in a single building or a group of buildings
 2
                which includes facilities to conduct classes or related activities needed for the operation of
 3
                the institution.

 4   An institutional “use” is only regulated under the City’s Major Institution Code if is undertaken by

 5   one of the 13 entities (public or private) that has been designated a “Major Institution” by the
 6
     City.9
 7
                Not surprisingly, the City/University motion conveniently ignores the fact that the Major
 8
     Institution Code itself contains mandatory leasing restrictions on Seattle’s other major institutions:
 9
                23.69.022        Uses permitted within 2,500 feet of a Major Institution Overlay
10
                                 District.
11
                A.     A Major Institution shall be permitted to lease space, or otherwise locate a use
12              outside a Major Institution Overlay (MIO) District, and within two thousand five hundred
                (2,500) feet of the MIO District boundary, subject to the following limitations:
13
                1.      The provisions of this section shall not apply to contractual arrangements with
14              other entities, except for leases or other agreements for occupying space.
                2.      No such use shall be allowed at the street-level in a commercial zone, unless the
15
                use is determined to be similar to a personal and household retail sales and service use,
16              eating and drinking establishment, customer service office, entertainment use or child care
                center and is allowed in the zone. If the use is allowed in the zone but is determined not to
17              be similar to a personal and household retail sales and service use, eating and drinking
                establishment, customer service office, entertainment use or child care center, the Director
18              may not allow the use at street level in a commercial zone unless provided otherwise in an
                adopted master plan or in a Council-approved neighborhood.
19
                3.      Except as permitted in an adopted master plan, the use shall not result in the
20              demolition of a structure(s) that contains a residential use nor shall it change a residential
                use to a nonresidential use;
21              ...

22

23   9
         The colleges and hospitals classified as “Major Institutions” under Chapter 23.69 are:
           Children’s Hospital              Providence Hospital                 South Seattle Comm. College
24         Group Health Hospital            Seattle Community College           Swedish Hospital
           Harborview Med. Center           Seattle Central Comm. College       University of Washington
25         N. Seattle Comm. College         Seattle Pacific University Virginia Mason Hospital
           Northwest Hospital

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 11                                                                1001 Fourth Avenue, Suite 4200
                                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                 (206) 292-1144
 1   In fact, until it was amended in 1996, the MI code contained square foot limitations like those
 2
     found in the 1998 Agreement:
 3
             The City conducted a two-year review of the Major Institutions Code which concluded in
 4           1996. Among the revisions adopted at the time, applicable to major institutions other than
             the UW, the Code was amended to remove square foot limitations upon major institution
 5           leasing within 2,500 feet of their boundaries. Instead, other limitations were added or
             retained, including street-level use limitations; prohibition of demolition or change of use
 6
             of residential structures; a conditional use requirement for major medical facilities, and
 7
             opportunity for institution advisory committees to comment. According to DCLU’s 1997
             report, the Council’s objectives were to allow flexibility to the institutions, to preserve a
 8           diversity of street-level uses and to continue to protect housing from being demolished or
             converted in surrounding areas.
 9
     March 27, 2003, Memorandum to Council from Council Staff, C-1.64, at p. 9, emphasis added.
10

11
     This staff memo goes on to explain the affect this action had on the UW:

12           At the time, the City Council also adopted a resolution calling for review of the City-
             University Agreement which had not been included in the review of the Major Institutions
13           Code. The resolution directed staff to review the 1977 goals and the 1983 Agreement,
             compare the regulations governing the UW to those for other institutions and recommend
14           whether there should be changes. DCLU issued a Discussion Paper in March of 1997
             which gives much of the history and considers, among other things, the issue of the lease
15
             lid and identifies three options but does not make a recommendation.10
16
     Id. The 1998 Agreement’s leasing and acquisition restrictions regulate (i.e., “control”) how
17
     property in the city can be used or developed in exactly the same manner as the City’s major
18
     institution regulations control use and development. Both are applied based on property
19

20   ownership by the institution (whether in fee or as a leasehold interest) combined with the type of

21   use.11 The City cannot disclaim its own Major Institution Code, an integral part of its Land Use

22   Code, by claiming it is not a development regulation subject to review by this Board. These Major
23
     10
        This March 1997 Discussion Paper was one of the many relevant documents omitted from the City and University
24   records, upon which their motion relies. See Petitioner’s November 14, 2003, Motion to Supplement the Record, at
     pp. 10-12.
     11
25      Moreover, as discussed in Section III.A.5 below, Seattle’s land use code contains many other regulations that are
     based on the identity or status of the owner or user rather than use.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 12                                                              1001 Fourth Avenue, Suite 4200
                                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                               (206) 292-1144
 1   Institution regulations are based on Major Institution control of property within the city limits –
 2
     the same premise which the respondents attack here as unprecedented. In short, respondents’
 3
     arguments are belied by the City’s own code.
 4
             5.    Seattle’s Land Use Code Routinely Regulates Users by Ownership and Status
 5
        The Seattle Land Use Code contains many more examples of development regulations that are
 6

 7
     based on ownership status of the user rather than the prospective use. For example, parking

 8   requirements for "community centers" (such as those operated by a non-profit organization) are

 9   different than those for "community centers owned and operated by the Seattle Department of
10   Parks and Recreation (DOPAR)". See SMC 23.54.015, Chart A. There are numerous other
11
     examples of uses that are regulated differently on the more general basis of whether they are
12
     public or private:
13
           On the same Chart A for parking quantity, the requirement for "School, private elementary
14          or secondary" is different than the requirement for "School, public elementary or
            secondary" SMC 23.54.015, Chart A.
15
           Public schools meeting development standards are permitted outright in single family
16          zones, but private schools meeting development standards are only permitted in single
            family zones as an administrative conditional use. SMC 23.44.006; 23.44.022.
17         The development standards for public schools are also different than for private schools.
            See SMC 23.44.006.G and 23.44.022.A and .D.
18
     Similarly, uses in public facilities are regulated differently than the same ones when privately
19

20   established. Compare, e.g., SMC 23.44.036 (uses in public facilities in single family zones),

21   23.45.106 (for the same in multifamily zones), and 23.80 (general provisions for essential public

22   facilities). In general, these provisions allow otherwise prohibited activities/uses to occur when
23
     they are undertaken by the public sector or they relax development standards for the public
24
     activity/use compared to the same private activity/use.
25



     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 13                                                  1001 Fourth Avenue, Suite 4200
                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                   (206) 292-1144
 1              Again, the claim by respondents that regulation of land use activities focused on the
 2
     identity or status of the user or owner is foreign to the Land Use Code is undercut by the Code
 3
     itself.
 4
                 6.      1998 Agreement Purports To Regulate University Land Use and Development
 5                       Activity -- And Nothing Else
 6
                The City and University further assert that, even if the Board determines that the 1998
 7
     City-University Agreement is a GMA development regulation, the specific leasing and acquisition
 8
     restrictions contained in the agreement (Section II.E) are not. Motion at pp. 8-9. As respondents
 9
     acknowledge, the 1998 Agreement was intended to address a wide array of issues:
10

11
                Relations between the City and the University of Washington, the Master Plan process
                (formulation, approval and amendment), uses on campus, uses outside the campus
12              boundaries, off-campus land acquisition and leasing, membership responsibilities of
                CUCAC, transportation policies, coordinated traffic planning for special events, permit
13              acquisition and conditioning, relationship of current and future master plans to the
                agreement, zoning and environmental review authority, resolution of disputes, and
14              amendment or termination of the Agreement itself.
15
     SMC 23.69.006(B). Despite respondents’ spin (e.g., claiming that the Agreement is concerned
16
     with “special events” (Motion to Dismiss at 8)) the underlying “nature and function” of the issues
17
     in the quoted paragraph concern land use and/or development and consequent traffic generation.12
18
     The respondents’ argument for finding that the “acquisition and leasing policies” are not
19

20   development regulations is based on a spin of the superficial label they have been given, while

21   ignoring the actual (and intended) effect of those provisions on the University’s land use and

22   development activity in the primary and secondary impact zones.
23
                Respondents also point to 1998 Agreement sections respecting legal disclaimers and
24
     dispute resolution procedures as demonstrating that the policies at issue here do not address land
25
     12   It is not as though the issues described in SMC 23.69.006(B) relate to curriculum, taxes or alumni relations.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 14                                                                   1001 Fourth Avenue, Suite 4200
                                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                    (206) 292-1144
 1   use and development activities by the University even though the Agreement was adopted into the
 2
     Seattle Land Use Code. Clearly, however, the legal disclaimers and dispute resolution provisions
 3
     are part of the overall Agreement, the purpose of which is to control University land use and
 4
     development activity so as to minimize its impacts on the vulnerable neighborhoods that surround
 5
     it.
 6

 7
            In light of this, the holding in City of Burien v. Ctiy of Seatac case (CPSGMHB Case No.

 8
     98-3-0010, 8/10/98 FDO), cited by respondents (Motion at 6), actually supports the Board's
     jurisdiction to review the City/University action in eliminating the leasing restrictions contained in
 9
     the 1998 Agreement. There, the Board ruled that:
10
            Provisions of the [Interlocal Agreement] ILA, if any, that are included as Plan or zoning
11
            code amendments are subject to the provisions of RCW 36.70A.140 during the plan or
12
            zoning code amendment process.

13   City of Burien v. Central Puget Sound Growth Management Hearings Board, 113 Wn.App 375,

14   384, 53 P.3d 1028 (Div. 1 2002). Contrary to the Interlocal Agreement addressed by the Board in
15   the Burien case, the 1998 Agreement -- adopted into Seattle's Land Use Code in SMC 23.69.006 --
16
     pertains narrowly to the University's land use and development activities and is aimed at
17
     minimizing the resulting land use (including transportation) impacts on the surrounding
18
     neighborhoods. Thus, it is subject to review by the Board for compliance with the GMA.
19
     Respondents' reliance on this case is misplaced.
20

21

22

23

24

25



     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 15                                                  1001 Fourth Avenue, Suite 4200
                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                   (206) 292-1144
 1            7.       The 1998 Agreement Leasing Restrictions Did Not Constitute “Restraint On
                       Alienation”
 2

 3
              Contrary to the City and University’s assertion, the leasing and acquisition restrictions on

 4   the University in the impact zones does not constitute a “restraint on alienation.” Blacks Law

 5   Dictionary (Rev. 4th ed.) defines “restraint on alienation” as follows:
 6
              Restriction of the power of aliening property. See perpetuity.
 7
     To “alien” property is to convey or transfer title to the property. Id. Respondents can point to
 8
     nothing in the leasing and acquisition restrictions that restrict the University in its ability to sell or
 9
     lease its own property to others. In light of this, respondents’ discussion of the illegality of
10

11
     restraints on alienation is superfluous.13

12            Further, the University, as a public entity, is not entitled to raise such due process objection

13   in any event. The due process clause does not protect government entities from state action.
14   Samuels Furniture, Inc. v. State of Washington Department of Ecology, 147 Wn.2d 440, 462-463,
15
     54 P.3d 1194 (2002). As stated in McQuillin’s treatise on the law of municipal corporations:
16
              The requirements of due process protect all persons within the nation, wherever they may
17            be domiciled. It has been ruled that the requirement does not apply against state action
              respecting municipalities since municipalities are not ‘persons’ within the requirement. In
18            other words, due process and due course of law are guarantees to citizens and not
              governments or their agents. Thus, under both Federal and State due process
19
              constitutional provisions, neither the state or any agent of it is entitled to due process.
20
     McQuillin, The Law of Municipal Corporations, Section 19.11 (3rd ed. 1996) (emphasis added).
21
              Respondents’ reliance on City of Olympia v. Palzer14 is similarly misguided. In Palzer,
22
     Division 2 of the Court of Appeals held that a zoning ordinance was invalid insofar as it conflicted
23

24
     13
        Further, the City, which has signed the motion to dismiss here, cannot believe that it has no legal authority to limit a
25   Major Institutions’ ability to lease property, in light of the regulations in the remainder of the Major Institution Code.
     14
        42 Wn. App. 751, 754, n. 3, 713 P.2d 1125 ( Div 2 1986).

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 16                                                                   1001 Fourth Avenue, Suite 4200
                                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                    (206) 292-1144
 1   with the state tax sales statute. The Court was asked to address whether a city ordinance could
 2
     restrict county tax sales where a city’s PUD rezone ordinance respecting the property had
 3
     specified that the subject tracts be “owned by a property owners’ association, municipal or state
 4
     body, or by the present property owners.” The Court held that, although the City ordinance could
 5
     not restrict subsequent county tax sales by limiting the potential buyers, the use restrictions
 6

 7
     contained in the ordinance continued to apply to the property. City of Olympia v. Palzer, 42 Wn.

 8   App. at 753.

 9   B.     Petitioners Have Standing To Challenge The City and University Actions Before This
            Board
10

11
            1. Petitioners Have Participation Standing Under The Amended RCW
               36.70A.280(2)(b) and Wells v. WWGMHB
12
            Respondents move for dismissal based on the general allegation that some of the
13
     petitioners may not have “had a member or person who specifically identified himself or herself as
14
     a representative of that organization when providing oral or written comments.” Motion at 9.
15
     Respondents further cite to the recent amendment of the GMA’s Growth Board standing
16
     provisions (RCW 36.70A.280(2)) and argue, generally, that petitioner organizations have not
17
     shown that their participation before the City met the new standards for participation standing.
18
            In July of this year, these provisions were amended to reflect the court of appeals’ holding
19
     in Wells v. Western Washington Growth Management Hearings Board, 100 Wn. App. 657, 670-
20
     676, 997 P.2 405 (Div. 1 2000). Respondents’ Motion at 10. In doing so, the Legislature noted
21
     that, to establish participation standing before the Board, petitioners are required to show that their
22

23   participation before the local jurisdiction was “reasonably related” to the issues they present to

24   the Board. However, contrary to respondents’ apparent assertions, this legislative clarification did

25   not add a requirement that, to survive a challenge to their standing, petitioners must present their


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 17                                                   1001 Fourth Avenue, Suite 4200
                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                    (206) 292-1144
 1   entire case on the merits in their Petition for Review. In fact, the Wells Court pre-empted the
 2
     assertion now made by respondents:
 3
             Persons who wish to raise issues before a growth management hearings board should
 4           participate actively in the planning process for the geographic areas or subject of interest to
             them. The GMA assumes a local government will have an opportunity to address those
 5           concerns before an appeal to the growth management hearings board. This facilitates the
             county's ultimate planning responsibility and avoids unnecessary appeals. However, it
 6
             would be unrealistic given the time and resource constraints inherent in the planning
 7
             process to require each individual petitioner to demonstrate to the growth management
             hearings board that he or she raised a specific legal issue before the board can consider
 8           it. The growth management hearings boards, with their expertise in these matters and their
             role as finders of fact, are best suited to decide whether, under the facts presented in a
 9           particular circumstance, a petitioner has established participation in a "matter."
10
     Id. at 674, emphasis added. The Court also noted that:
11           We recognize that this approach leaves each board with considerable discretion to
             determine whether the facts support the necessary connection in each case.
12

13   Id. at 673. The attempt by the City and University to twist the legislative clarification to impose

14   additional burdens on legitimate petitioners, requiring them to “front load” their appeals, is

15   contrary to the policies underlying the GMA.
16
             Respondents’ motion not only overstates the stringency of the standing requirement, but
17
     also fails to raise specific challenges to individual petitioners’ standing. Respondents’ fail to point
18
     to anything in their own records that would suggest petitioners’ participation below was
19
     insufficient. Nor do they identify which petitioners they claim do not have standing.15
20

21           To anticipate objections which respondents have failed to make, petitioners have prepared

22   the following chart, which provides a sampling of the statutory and Comprehensive Plan goals and

23

24

25   15Nor will an attempt by respondents to repair their motion on Reply suffice. Their obligation as movants was to state
     the motion’s grounds when petitioner will have a chance to respond – not after.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 18                                                               1001 Fourth Avenue, Suite 4200
                                                                                                    P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                (206) 292-1144
 1   requirements that Petitioners raise in their legal issues, followed by a sampling16 of comments
 2
     made by individual petitioners to the City Council last spring, prior to its vote to eliminate the
 3
     lease lid. For purposes of organization, the issues are broken down here into four categories: (1)
 4
     Minimizing Impacts and Balancing University Flexibility With Neighborhood Protection; (2)
 5
     Housing; (3) Neighborhood Planning; and (4) Public Participation.17
 6

 7

 8                                                       *        *        *

 9

10
     MINIMIZING MAJOR INSTITUTION IMPACTS / BALANCING UW GROWTH WITH
11
     NEIGHBORHOOD PROTECTIONS

12               RCW / Comp Plan Goal/Policy

13               LG 79: Maximize the benefits of major institutions, including health care and educational
                 services, while minimizing the adverse impacts associated with development and
14               geographic expansion.
15
                 LG81: Balance each major institution’s ability to change and the public benefit derived
16               from change with the need to protect the livability and vitality of adjacent neighborhoods.

17               L262: Provide for the coordinated growth of major institutions through major institution
                 conceptual master plans and the establishment of major institutions overlay zones.
18
                 L263: Allow modifications to the underlying zone provisions in order to allow major
19
                 institutions to thrive while ensuring that impacts of development on the surrounding
20               neighborhood are satisfactorily mitigated.

21               L264: Discourage the expansion of established major institution boundaries.

22               L269: New institutions shall be located in areas where such activities are compatible with
                 the surrounding land uses and where the impacts associated with existing and future
23
                 development can be appropriately mitigated.
24

     16
25        Neither the list of goals and requirements nor the list of petitioners’ comments is by any means comprehensive.
     17
          The attached Declaration of Jeannie Hale further describes petitioner LCC’s participation below.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 19                                                                  1001 Fourth Avenue, Suite 4200
                                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                   (206) 292-1144
 1        L270: Establish a Major Institution Overlay (MIO) to permit appropriate institutional
          development within boundaries while minimizing the adverse impacts associated with
 2
          development and geographic expansion. A further purpose is to balance the public
 3
          benefits of growth and change for major institutions with the need to maintain livability
          and vitality of adjacent neighborhoods. Where appropriate, the establishment of MIO
 4        boundaries may contribute to the transition of physical development to ensure
          compatibility between major institution areas and less intensive zones.
 5
          L285: The master plan should establish or modify boundaries; provide physical
 6
          developments standards for the overly district; define the development program for the
 7
          specified time period; and describe a transportation management program.

 8        L288: In considering rezones, the objective shall be to achieve a better relationship
          between residential or commercial uses and the Major Institution uses, and to reduce or
 9        eliminate major land use conflicts in the area.
10        UC-G2: Vibrant commercial districts serving local needs and offering regional
11
          specialties.

12        UC-G6: A community that builds a unique physical identity on its historical and
          architectural resources, attractive streets, university campus, and special features.
13
          UC-P28: Seek to preserve and enhance the following design characteristics within the
14        community: Pedestrian orientation and visual interest to the pedestrian, high quality,
          human-scaled design details in larger buildings, streetscape continuity on commercial
15
          corridors, integration between the UW campus and the surrounding community, buildings
16        with attractive open space and low rise multi-family development that fits with the design
          character of adjacent single family houses.
17
          UC-P30: Accommodate new university growth in a way that benefits the surrounding
18        community.
19
          Public Comments
20
          4/10/03 –LCC/ Hale [at C3.5] “We are here to oppose elimination of the UW lease lid and
21        to urge you to develop a compromise that addresses the concerns of surrounding
          communities … we are now asking you to facilitate a compromise solution that addresses
22        both the needs of the Univ. and the concerns of the neighborhoods.”
23
          6/12/03 – Northeast District Council (and members including Hawthorne Hills
24        Community Council, University Park Community Club, Ravenna Bryant
          Community Association, Laurelhurst Community Club, Roosevelt Neighborhood
25        Alliance) [at C3.9]– “Our members believe that [the Licata/McIver] proposal better


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 20                                                1001 Fourth Avenue, Suite 4200
                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                 (206) 292-1144
 1        balances the needs of the University with the concerns of the surrounding neighborhoods
          than the Drago/Nicastro plan to eliminate the Lid entirely. In particular, we believe that
 2
          this proposal offers the University substantial immediate relief from the lease lid by
 3
          increasing it outright by nearly 200,000 square feet. … Finally, the exemption from the
          Lid of any project with a residential component of greater than 30% give the University a
 4        real incentive to ensure that housing is a significant part of their new built-to-suit leased
          projects.”
 5
          4/8/03 – LCC/Hale testimony [at C3.6] “elimination of the UW lease lid will allow Univ
 6
          leasing in ALL of the surrounding communities”
 7
          6/4/03 – Ravenna-Bryant Community Assn [at C3.7] – “…our major concerns: …
 8        restricting the areas in which the increased leasing can occur…property acquisition by the
          UW…”
 9
          4/10/03 testimony of Northeast District Council [at C3.5] “Eliminating the lease lid
10        would ultimately lead to changes in the Major Institution Overlay (MIO) boundaries, thus
11
          allowing development in surrounding communities. Under the MIO designation, the Univ.
          does not have to comply with local zoning laws, setback requirements and other
12        development standards, and it is also exempt from the Univ. Community Urban Center
          Plan. Instead, development is governed by the Campus Master Plan, which did not
13        seriously address Univ. leasing projects or plans.”
14        4/10/03 - Friends of Brooklyn/ Ramey [at C5.1] - "The University's expansion... has
          turned the south part of the University District into an office park.... [T]hey actually
15
          removed about 1,000 households that could have housed people who would be permanent
16        residents and replaced that with office parks. We believe this kind of trend will only
          continue, that the University's goal to lift the lease lid is to allow it to encourage
17        developers to build office park type development..."
18        5/28/03 LCC/Hale letter [at C3.7] – “In addition to concerns about loss of housing, a
          blanket removal of the lease lid would result in piecemeal development with little or no
19
          environmental review or mitigation of the major traffic and transportation impacts. With
20        the City’s current budgetary shortfalls, it is unlikely that funds would be available to
          provide the needed infrastructure.”
21
          3/22/03 NEDC letter [at C3.7] – “”Under the MIO designation, the University does not
22        have to comply with local zoning laws, setback requirements and other development
          standards, and it is also exempt from the University Community Urban Center Plan.
23
          Instead, development is governed by the Campus Master Plan, which did not seriously
24        address University leasing projects or plans.”

25        3/22/03 – NEDC letter [at C3.7] “Should the University choose to lease space along The


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 21                                               1001 Fourth Avenue, Suite 4200
                                                                                    P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                (206) 292-1144
 1        Ave, we are concerned that there are no safeguards to prevent the displacement of non-
          University uses.”
 2

 3
          4/10/03 – LCC/Torrance testimony [at C3.5] – “With better housing in the District we
          could believe this is the time to address housing concerns. With better housing in the
 4        District we could create an environment that would support small businesses where people
          could walk to work. We could help create a living thriving community of citizens that
 5        utilize their area. We need to think more about saving space for small businesses and
          zoning for multifamily housing in this area.”
 6

 7
          5/28/03 – email from Seattle Displacement Coalition [at C3.9] – “In order to prevent loss
          of housing and minimize pressure on existing uses in the District, the lease lid was put in
 8        place over 20 years ago. Allowing for modest levels of University expansion into selected
          areas of the U-District, the lid strikes a degree of balance between neighborhood and U of
 9        W. needs. Neighborhood and housing advocates say some limited adjustment to the lid
          could be made for certain areas of the District so long as these adjustments respect existing
10        community review and approval processes. But wholesale lifting of the lid as the Major
11
          proposes would destroy many dozens of low income units, displace small businesses, and
          wipe out a neighborhood planning process that took the community decades to achieve.”
12
          5/28/03 - LCC/Hale [at C3.7] – “We support economic development in this area,
13        revitalization of the Ave, flexibility of the University to meet its growing needs, job
          creation, preservation of housing and creation of new housing to meet the City’s housing
14        targets. The question is how we get there. We support a compromise that addresses these
          important issues as well as the impacts on surrounding communities.”
15

16        5/28/03 LCC/Hale [at C3.7] – “The dilemma is that the recently approved Master Plan
          eliminates the prohibition against UW property acquisitions in [single-family residential
17        zones located in the University’s Primary and Secondary Impact Zones] – a prohibition
          that has existed for nearly three decades to protect adjacent communities from the adverse
18        impacts of University expansion. We recommend an additional amendment to the City-
          University Agreement to reinstate this important provision.”
19

20        6/2/03 RNA/Hans Aschenbach [at C3.9] – “While [the University] provides untold
          benefits in research discoveries, humane education, salaries, medical treatment, etc. to
21        greater Seattle and the world, it has not been a very good neighbor to the immediate
          community…Eliminating the Lease Lid without dealing with related community issues is
22        a disservice to both the City and community stakeholders.”
23
          4/10/03, Seattle Displacement Coalition/John Fox, "In all liklihood, lifting the lid will
24        also convince a handful of large property owners who now control most of the Ave to hold
          out, as some already are, for even higher rents on office and retail space. This would lead
25        at least in the short run to even more vacant storefronts and most assuredly spell doom for


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 22                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1        the remaining long-time businesses and the rich mix of newer first-generation ethnic
          establishments that have become the mainstay of the Ave. or it's quite conceivable that it'll
 2
          create an economic tipping point spelling demolition of some of the existing older historic
 3
          storefronts in the Ave." … "It took nearly two decades of neighborhood energy and
          struggle with the UW often spilling over into large-scale and costly land use disputes to
 4        forge a comprehensive neighborhood plan that now guildes University expansion. Central
          to that planning was the lease lid. It helped strike a balance between the U's insatiable
 5        appetite for land and the very real needs of surrounding communities."
 6
     HOUSING
 7
          RCW / Comp Plan Goal/Policy
 8
          L280: Encourage the preservation of housing within major institution overlay districts and
 9        the surrounding areas. Discourage conversion or demolition of housing within a major
          institution campus, and allow such action only when necessary for expansion of the
10        institution.
11
          L282: Prohibit development by a major institution within 2,500 feet of the MIO district
12        boundaries when it would result in the demolition of structures with residential uses or
          change of these structures to non-residential uses.
13
          H10: Reflect anticipated consumer preferences and housing demand of different
14        submarkets in the mix of housing types and densities permitted under Seattle’s zoned
          development capacity. Encourage a range of housing types including, but not limited to:
15
          single-family housing; ground-related housing to provide an affordable alternative to
16        single-family ownership; and moderate- and high-density multifamily apartments which
          are needed to accommodate most of the growth over the 20-year life of this plan.
17
          H11: Strive to make the environment, amenities and housing attributes in urban villages
18        attractive to all income groups, ages and households types.
19
          UC-G1: Stable residential neighborhoods that can accommodate projected growth and
20        foster desirable living conditions.

21        UC-G4: A community in which the housing needs and affordability levels of major
          demographic groups, including students, young adults, families with children, empty
22        nesters, and seniors, are met and which balances home ownership opportunities with rental
          unit supply.
23

24        Public Comments

25        5/28/03 LCC/Hale letter [at C3.7] – “In addition to concerns about loss of housing, a


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 23                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1        blanket removal of the lease lid would result in piecemeal development with little or no
          environmental review or mitigation of the major traffic and transportation impacts. With
 2
          the City’s current budgetary shortfalls, it is unlikely that funds would be available to
 3
          provide the needed infrastructure.”

 4        5/28/03 – LCC/ letter [at C3.7] “The University is interested in leasing in new
          construction projects, rather than in existing buildings. This can only mean redevelopment
 5        and loss of existing affordable and low income housing because there is very little vacant
          land in the area – 0.8 acres on eight different parcels. . . . we support incentives …to create
 6
          new housing, and a prohibition of leasing that results in residential demolitions or
 7
          conversions. We support your recommendation to continue the current prohibition of UW
          leases in residentially zoned areas.”
 8
          5/15/03 – University District Community Council/Matt Fox memo [at C3.7] – “The
 9        other 2 proposals are critical to ensuring that new U of W leased projects do not displace
          existing residents and residential uses. We continue to support the proposed Housing
10        Quality Assurance Program advocated by University Park.”
11
          5/5/03 University Park Community Club [at C3.7] “Yes, additional housing is critical to
12        the area – but the Council needs to address the stability of the housing that already
          exists…Without the resident homeowners who are committed to the area, any attempt at
13        revitalization will fail. The previously – proposed Housing Quality Assurance Program
          attempted to address this issue for our community.”
14
          (undated) D’Allessandro/University Park Community Club [at C3.7] “All UW leasing
15
          of residential property should be used solely for residential purposes. There should be no
16        net loss of residential housing within the currently defined primary impact zone through
          leasing or acquisitions. The condition and extent of existing single-family housing in the
17        University District must be preserved.”
18        4/8/03 – LCC/Hale testimony [at C3.6]: “The only information that we do know at this
          time is that there is a critical need for housing in the Univ District and an imbalance
19
          between jobs and housing in terms of meeting growth management targets.”
20
          4/10/03 – LCC/Torrance testimony [at C3.5] – “With better housing in the District we
21        could believe this is the time to address housing concerns. With better housing in the
          District we could create an environment that would support small businesses where people
22        could walk to work. We could help create a living thriving community of citizens that
          utilize their area. We need to think more about saving space for small businesses and
23
          zoning for multifamily housing in this area.”
24
          4/10/03 –LCC/ Hale [at C3.5] “There is currently an imbalance between housing and jobs
25        in the area. To convert commercial space to institutional uses and office space will only


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 24                                                1001 Fourth Avenue, Suite 4200
                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                 (206) 292-1144
 1        exacerbate the problem.”
 2
          5/5/03 – University Park Community Club [at C3.7] “We need our neighborhood to be
 3
          able to attract long term tenants, not only for apartments and condominiums, but the other
          forms of owner-occupied housing that University Park provides.”
 4
          6/12/03 – CUCAC testimony [at C3.7] – “express support for a Housing Quality
 5        Amendment that requires the University to ‘develop a housing quality assurance
          program…’”
 6

 7
          5/28/03 – email from Seattle Displacement Coalition [at C3.9] – “In order to prevent loss
          of housing and minimize pressure on existing uses in the District, the lease lid was put in
 8        place over 20 years ago. Allowing for modest levels of University expansion into selected
          areas of the U-District, the lid strikes a degree of balance between neighborhood and U of
 9        W. needs. Neighborhood and housing advocates say some limited adjustment to the lid
          could be made for certain areas of the District so long as these adjustments respect existing
10        community review and approval processes. But wholesale lifting of the lid as the Major
11
          proposes would destroy many dozens of low income units, displace small businesses, and
          wipe out a neighborhood planning process that took the community decades to achieve.”
12
          6/4/03 – Ravenna-Bryant Community Assn [at C3.7] – “…our major concerns: … the
13        importance of housing development to the overall economic health of the University
          District...”
14
          4/10/03 - Friends of Brooklyn/ Ramey [at C5.1] - "The University's expansion... has
15
          turned the south part of the University District into an office park.... [T]hey actually
16        removed about 1,000 households that could have housed people who would be permanent
          residents and replaced that with office parks. We believe this kind of trend will only
17        continue, that the University's goal to lift the lease lid is to allow it to encourage
          developers to build office park type development..."
18
          6/13/03 – RNA/Hans Aschenbach [at C3.9] – We have a two fold housing problem here in
19
          the University District: 1) Protecting the quality of the existing housing stock… 2)
20        Creating new housing for the thousands of new students (short term residents) and UW
          faculty and staff (long term residents).
21
     NEIGHBORHOOD & UCUC PLANNING
22
          RCW / Comp Plan Goal/Policy
23

24        NG6: Build strong, effective strategies for developing and implementing neighborhood
          plans.
25



     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 25                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1        N19: Support neighborhood plan stewardship with the goal of promoting continued
          cooperation between the City and local neighborhoods in implementing adopted
 2
          neighborhood plan goals and policies, carrying out neighborhood plan work plan activities
 3
          and implementing this Comprehensive Plan.

 4        These efforts should be directed toward not only accomplishing specific projects, but also
          toward fostering the ability of neighborhoods to inspire people with the energy, interest
 5        and ability to work collaboratively with the City in implementing neighborhood plans.
 6
          UC-G1: Stable residential neighborhoods that can accommodate projected growth and
 7
          foster desirable living conditions.

 8        UC-G3 – An efficient transportation system that balances different modes, including
          public transit, pedestrian, bicycle and automobile, and minimizes negative impacts to the
 9        community.
10

11
          Public Comments

12        6/5/03 – Roosevelt Neighbors’ Alliance [at C3.9] – “Urban Center communities are made
          up of good citizens, who: a) acted in good faith with the City, b) respected the City’s
13        wishes to concentrate growth in urban areas, c) spent countless volunteer hours working to
          map a plan for their City-designated urban center, d) accepted the urban center village
14        designation and took active interest in the planning, e) were given assurances that their
          urban centers would receive some benefits to compensate for taking on the majority of the
15
          city’s growth while “saving” other neighborhoods from “uncontrolled” growth. The
16        UCUC Plan (prepared by the Community and adopted by the Seattle City Council in
          December 1998) contains detailed activities (including the rezone of specific blocks to best
17        accommodate growth) and it was promised to be implemented and supported by the City
          in return for this community to absorb a significant percentage of the city’s growth. The
18        community’s volunteerism and service to our city should have the respect of our city’s
          officials for the real sacrifices it required and the weight of responsibility it entailed. The
19
          current lease lid fracas has shown the community that the City does not necessarily honor
20        it’s [sic] obligations (as signed and sealed) to it’s [sic] hardworking citizens. It would be
          appropriate to call the University Community Urban Center by its real name, to uphold
21        agreements made with the community and to honor the University Community Urban
          Center Plan.”
22
          (undated) D’Alessandro/University Park Community Club [at C3.7] “For us this lease
23
          lid legislation is not just a political litmus test. It is a testimonial to our view that the very
24        survival of our neighborhood is threatened.”

25        University District Community Council; Statement for May 1, 2003 Ad-Hoc Coalition


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 26                                                   1001 Fourth Avenue, Suite 4200
                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                    (206) 292-1144
 1        Press Conference [at C3.7] “The University Community Urban Center Plan (UCUC)
          specifically stated that the U of W Campus Master Plan (CMP) should address
 2
          ‘Determination of most appropriate locations and conditions for off-campus leases.’ This
 3
          discussion has never occurred, and the statement itself is not consistent with the Mayor’s
          proposal to eliminate all restrictions of U of W leasing. The UCUC Plan envisioned a
 4        framework under which there were some limits on the ability of the U of W to lease
          property in the immediate neighborhood, and these restrictions did not occur in a vacuum.”
 5
          6/12/03 – CUCAC letter [at C3.7] – “We support an amendment that calls for a Pedestrian
 6
          Overlay District on arterials in neighborhoods requesting this designation to preserve and
 7
          encourage retail and pedestrian-oriented activities and no-auto modes of transportation.”

 8        6/13/03 – RNA/Hans Aschenbach [at C3.9] – “If we keep a modified but intact lease lid,
          once Link Light Rail reaches the District, we have the ability to provide any Transit
 9        Oriented Development with an immediate UW tenant by lifting the lease lid within a
          specified radius around any light rail station. Perhaps we could incentivize light rail to
10        UW by amending the McIvar-Licata Lease Lid Bill with a guarantee of lease lid lift
11
          around the stations. AS you know UW support of the Link has been very, very
          disappointing.”
12
     PUBLIC PARTICIPATION
13
          RCW / Comp Plan Goal/Policy
14
          36.70A.020(11): The following goals are adopted to guide the development and adoption
15
          of comprehensive plans and development regulations of those counties and cities that are
16        required or choose to plan under RCW 36.70A.040. The following goals are not listed in
          order of priority and shall be used exclusively for the purpose of guiding the development
17        of comprehensive plans and development regulations:
          (11) Citizen participation and coordination. Encourage the involvement of citizens in the
18        planning process and ensure coordination between communities and jurisdictions to
          reconcile conflicts.
19

20        36.70A.035: (1) The public participation requirements of this chapter shall include notice
          procedures that are reasonably calculated to provide notice to property owners and other
21        affected and interested individuals, tribes, government agencies, businesses, school
          districts, and organizations of proposed amendments to comprehensive plans and
22        development regulation. . .
23
          (2)(a) Except as otherwise provided in (b) of this subsection, if the legislative body for a
24        county or city chooses to consider a change to an amendment to a comprehensive plan or
          development regulation, and the change is proposed after the opportunity for review and
25        comment has passed under the county's or city's procedures, an opportunity for review and


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 27                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1        comment on the proposed change shall be provided before the local legislative body votes
          on the proposed change.
 2
          36.70A.130: (1)(b) Any amendment of or revision to a comprehensive land use plan shall
 3
          conform to this chapter. Any amendment of or revision to development regulations shall
 4        be consistent with and implement the comprehensive plan.

 5        (2)(a) Each county and city shall establish and broadly disseminate to the public a public
          participation program consistent with RCW 36.70A.035 and 36.70A.140 that identifies
 6        procedures and schedules whereby updates, proposed amendments, or revisions of the
          comprehensive plan are considered by the governing body of the county or city no more
 7        frequently than once every year.
 8
          36.70A.140: The procedures shall provide for broad dissemination of proposals and
 9        alternatives, opportunity for written comments, public meetings after effective notice,
          provision for open discussion, communication programs, information services, and
10        consideration of and response to public comments.
11        L265: Encourage significant community involvement in the development, monitoring,
          implementation and amendment of major institution master plans, including the
12
          establishment of citizen’s advisory committees containing community and major
13        institution representatives.

14        L266: Encourage Advisory Committee participation throughout the process of revision,
          amendment and refinement of the master plan proposal.
15
          L267: Require preparation of either a master plan or a revision to the appropriate existing
16
          master plan when a major development is proposed that is part of a major institution, and
17        does not conform with the of the [sic] underlying zoning and is not included in an existing
          master plan.
18
          NG1: Recognize neighborhood planning an implementation as critical tools for refining
19        and turning into a reality the vision of the Comprehensive Plan.
20
          NG2: Give all community members the opportunity to participate in shaping the future of
21        their neighborhoods.

22        NG5: Foster collaborative relationships between citizens and the City.

23        UC-P32: In pursuit of Comprehensive Plan Policy L130, ensure that the University
          Community plays an active role in the UW’s Campus Master Plan on subjects of mutual
24
          interests.
25



     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 28                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1        Public Comments
 2
          4/1/03 – LCC/Hale [at C3.9] – “The Mayor’s proposal was developed with no
 3
          involvement of surrounding communities or CUCAC, little understanding of the
          successful 18-month process between the University and its neighbors in negotiating the
 4        1998 City-University Agreement addressing many issues, including the lease lid, and no
          analysis of the impacts of eliminating this long-term mechanism to protect adjacent
 5        communities from the adverse impacts of University expansion.”
 6
          4/10/03 – Roosevelt Neighbors Alliance [at C3.9] – “We urge you to adopt a process
 7
          allowing more input and analysis with the goal of crating a truly workable, pleasant, and
          safe urban community.”
 8
          5/27/03 – University District Community Council/Fox email [at C3.9] – “We urge the
 9        Council to delay the currently scheduled 5/29 Finance Committee vote on this new
          proposal to allow the community more than a day to analyze and respond to it.”
10

11
          5/28/03 – University Park Community Club Board/D’Alessandro [at C3.9] – “In view
          of the scheduled absence of at least one committee member and the apparent lack of
12        transparency in the Committee’s approach to resolution of the matter, we urge the Council
          to defer action on the ordinance until such time as all the Committee’s member may
13        attend.”
14        5/15/03 – University District Community Council/Matt Fox memo [at C3.7]– “The
          UDCC supports …raising the lid to 700,000 S.F., … which give the Council future
15
          flexibility to ensure Comp plan consistency, and which preserve CUCAC’s longstanding
16        role in reviewing and commenting upon UW leasing.”

17        5/28/03 LCC/Hale letter [at C3.7] “Please provide an opportunity for citizens and
          community groups to review and comment on the recently completed University District
18        Market Analysis. This report was presented to the Council with no opportunity for
          community review . . . We recommend that you direct the Mayor to work with all
19
          impacted community and business groups and CUCAC …
20
          4/8/03 – LCC/Hale testimony [at C3.6] - “the lease lid proposal eliminates the role of
21        CUCAC in reviewing Univ leasing.”

22        3/22/03 letter from NEDC [at C3.7] “We believe that this [lease lid lift] proposal was
          developed without the participation of impacted neighborhoods or the CUCAC…The
23
          NEDC is disappointed that the Mayor’s proposal was developed without meaningful
24        community involvement … [The City-University Agreement] process, widely regarded as
          one of the more positive examples of University/community relations, stands in stark
25        contrast to the unveiling of the current proposal prior to any community involvement.”


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 29                                             1001 Fourth Avenue, Suite 4200
                                                                                  P.O. Box 21846/Seattle, WA 98111-3846
                                                                                              (206) 292-1144
 1
          4/8/03 – LCC/Hale testimony [at C3.6] “The Council should wait until the current appeal
 2
          of the UW Master Plan is completed prior to acting on the lease lid proposal.”
 3
          3/22/03 NEDC letter [at C3.7] – The major amendment [to Campus Master Plan] process
 4        that proceeds through the CUCAC is an important mechanism to ensure a careful review
          of projects and accountability to the City and impacted communities.”
 5
          (undated) D’Allessandro/University Park Community Club [at C3.7] “We oppose
 6
          elimination of the lease lid. We also oppose any temporary elimination of the lid,
 7
          regardless of the time period involved. WE believe that such a move is simply a
          preliminary to terminal elimination. However, if a temporary elimination of the lid is
 8        approved, it should be subject to a sunset provision such that the lid would be
          automatically reinstated after an appointed time rather than requiring an affirmative action
 9        by the Council to reactivate it.”
10        5/5/03 University Park Community Club [at C3.7] – “Adding to our concerns about the
11
          continued inability of CUCAC as an advisory group, most of the administrative duties of
          this group have been shifted to UW, due to city budget cuts. The conflict of interest is
12        obvious.”

13        6/4/03 – Ravenna-Bryant Community Association [at C3.7] – “Our position since
          introduction of the Mayor’s proposal is that this issue is best addressed through with [sic]
14        the City, the University and community groups working together, rather than the drastic
          proposal put forward by the Mayor…Amid the many land use issues you’re facing, and the
15
          community backlash, this seems to be an excellent opportunity to display your
16        commitment to working with the neighborhoods on a fair compromise that includes our
          input.”
17
          5/5/03 University Park Community Club [at C3.7] “Without University cooperation,
18        nothing will happen. The status quo will not change. And the University has
          demonstrated that they will not cooperate unless the City Council stands up to it when they
19
          come looking for something. That tie is now, and the Lease-Lid issue could be the last
20        opportunity for definitive and realistic cooperation.”

21        University District Community Council; Statement for May 1, 2003 Ad-Hoc Coalition
          Press Conference [at C3.7] “The University Community Urban Center Plan (UCUC)
22        specifically stated that the U of W Campus Master Plan (CMP) should address
          ‘Determination of most appropriate locations and conditions for off-campus leases.’ This
23
          discussion has never occurred, and the statement itself is not consistent with the Mayor’s
24        proposal to eliminate all restrictions of U of W leasing. The UCUC Plan envisioned a
          framework under which there were some limits on the ability of the U of W to lease
25        property in the immediate neighborhood, and these restrictions did not occur in a vacuum.”


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 30                                              1001 Fourth Avenue, Suite 4200
                                                                                   P.O. Box 21846/Seattle, WA 98111-3846
                                                                                               (206) 292-1144
 1
              6/4/03 – LCC/Hale [at C3.9] – “We were disappointed that a representative from the
 2
              University was allowed a place at the table [at City Council committee meetings] to
 3
              promote the University’s position, while communities were left out and unable to respond.
              In response to legitimate concerns about what would happen if the City begins to lose
 4            housing and retail as a result of UW leasing, the only response from the UW representative
              was that the City could pursue another amendment to the City-University Agreement at
 5            that time – certainly not an easy undertaking.”
 6
                                                      *        *         *
 7

 8           2.       Petitioners Have Participation Standing To Raise Claims Against The
                      University
 9
              Clearly, the Legislature intended that actions taken by state agencies could be challenged
10

11
     under the GMA. See, RCW 36.70A.280 (A growth management hearings board shall hear and

12   determine only those petitions alleging either: (a) That a state agency, county, or city planning

13   under this chapter is not in compliance with the requirements of this chapter ...); RCW 36.70A.290
14   (The board shall base its decision on the record developed by the city, county, or the state and
15
     supplemented with additional evidence if the board determines that such additional evidence
16
     would be necessary or of substantial assistance to the Board in reaching its decision); RCW
17
     36.70A.103 (State agencies shall comply with the local comprehensive plans and development
18
     regulations and amendments thereto adopted pursuant to this chapter). And, the GMA contains no
19

20   special restrictions or requirements for petitions challenging an action taken by a state agency.18

21            Here, the action taken by the state agency was the amendment of the 1998 City-University

22   Agreement – an agreement originally negotiated between the University and the surrounding
23
     18
        It is not surprising that respondents’ cannot think of a Board case where petitioners were expressly “granted
24   participation standing to bring claims against a state agency.” Motion at 11. There is simply a paucity of Board cases
     involving challenges to state agency actions; and none where a petitioner's standing was made an issue. None of the
25   Boards have dismissed a petition based on a finding that petitioner lacked standing to challenge the action taken by a
     state agency.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 31                                                                1001 Fourth Avenue, Suite 4200
                                                                                                     P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                 (206) 292-1144
 1   communities (petitioners, here). The amendment eliminated substantive development regulations
 2
     that implemented the GMA Comprehensive Plan policies encouraging the control of University
 3
     expansion into surrounding neighborhoods so as to minimize the acknowledged adverse land use
 4
     impacts. It also eliminated – with one swipe of the pen -- the special process by which the 1998
 5
     Agreement expressly required such actions to be taken.
 6

 7
            The legal issues here are plain. The players are governed by the GMA. The University is

 8   required, pursuant to the GMA, to act in compliance with local comprehensive plans. RCW

 9   36.70A.103. There is nothing to suggest that participation standing to challenge a state agency’s
10   action cannot be found here. RCW 36.70A.280 contains no special restriction on standing to
11
     challenge state agency actions, suggesting that none apply other than perhaps those applicable to
12
     challenges to City or County action. Yet, the City and University again seek to turn public
13
     participation under the GMA into a procedural hide and seek. Respondents’ assertion that
14
     petitioners lack standing to challenge the University’s action should be rejected.
15

16          Respondents erroneous assertion that petitioners lack standing because they have not

17   produced “evidence” that they raised the issue of the University’s compliance with the
18   Comprehensive Plan before the City is off base. The sum and substance of petitioners’ comments,
19
     summarized in the preceding section, leave no doubt that petitioners’ participation below was very
20
     focused on the fact that the elimination of the lease lid by the City and the University was directly
21
     inconsistent with the Comprehensive plan goals and policies listed above.
22
            3.      Petitioners Have Established APA Standing
23

24          To establish standing under the APA, petitioners must allege that they were prejudiced by

25   the City's action, that their asserted interests are among those that the city and agency (here, the


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 32                                                   1001 Fourth Avenue, Suite 4200
                                                                                        P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                    (206) 292-1144
 1   City and the University) were required to consider when they engaged in the challenged action,
 2
     and that a judgment in favor of petitioners would substantially eliminate or redress the prejudice
 3
     caused by the agency action. RCW 34.05.530; RCW 36.70A.280(2)(d). As discussed below and
 4
     in the attached Declaration of Jeannie Hale, petitioners satisfy these requirements.
 5
            As discussed above, the 1998 Agreement required that any change to the leasing
 6

 7
     restrictions – let alone their elimination – would have to undergo the Major Amendment process.

 8          … [I]n the Master Plan adopted for the period from 2001 to 2011, the amount of leased
            space within the Primary and Secondary Impact Zones shall be limited to 550,000 gross
 9          square feet (gsf) and to the “permitted leasing zone” depicted in Exhibit A and any change
            to these limitations shall be proposed as a major amendment to the Master Plan.
10

11   UW 67, 1998 Agreement, Section II.E. “Major Amendments” to the CMP are governed by
12
     Section II.C.5 of the Agreement, which requires that the amendment and environmental review go
13
     through the same process as the initial Master Plan. This process includes review by CUCAC,
14
     DCLU, and the Hearing Examiner, prior to consideration by the Council. In other words, the
15
     Major Amendment process as established in the 1998 City-University Agreement incorporated
16

17   into the City Land Use Code ensured early and continuous participation by the affected groups,

18   and it specifically acknowledged that the surrounding communities are the affected groups. UW

19   67, 1998 Agreement, Section II.G (“City-Community Advisory Committee”).
20
            Thus, the City and University were required to consider and protect the interests of the
21
     surrounding communities when substantially altering or eliminating the lease restrictions. In
22
     performing an “end-run” around this requirement -- by summarily eliminating it rather than
23
     complying with it -- the City and University essentially locked CUCAC and the individual
24

25   neighborhood groups out of the process. Rather than being provided a prominent position at the


     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 33                                                 1001 Fourth Avenue, Suite 4200
                                                                                      P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                  (206) 292-1144
 1   table,19 the neighborhoods were left to scramble for information from Council staff regarding the
 2
     narrow background information being provided to Council members, and the many different
 3
     proposals that were being floated before the Council for consideration. In light of this – contrary
 4
     to the intent of the 1998 Agreement – the communities were not able to participate meaningfully
 5
     in the process.
 6

 7
              As set forth in the Petition for Review (¶¶ 5.5-5.7), petitioners are primarily community

 8   organizations comprised of residents, and other property and/or business owners in the

 9   neighborhoods immediately surrounding the University.20 In fact, these neighborhoods groups
10   draw their membership from areas within what the City and University have expressly designated
11
     the University's primary and secondary impact areas in which leasing and acquisition was – until
12
     very recently – restricted in an effort to “minimize adverse impacts upon the City and particularly
13
     the communities surrounding the University, and to promote the health and vitality of the
14
     residential, business and academic communities.” UW 67, 2.
15

16            The specific and perceptible harm alleged by petitioners on behalf of their members is

17   plainly presented in the petitioners’ written and oral testimony before the City Council, excerpted
18   above. Further, the City and the University have explicitly recognized by in their successive
19
     agreements. Examples of this are found throughout the record. For instance, the stipulations
20
     preceding the terms of the 1998 Agreement include the following:
21

22   19
        This procedural flaw was quite literal. As noted in the Declaration of Jeannie Hale at ¶13), at certain meetings the
     University was given a place at the City Council table where only Council normally sits while the public was
23   relegated to the “audience.”
     20
        The Seattle Displacement Coalition (“SDC”) is an exception as it is not technically a neighbhorhood group;
24   however, as plainly indicated from its comments, quoted above, SDC has participation standing pursuant to RCW
     36.70A.280(2)(b). Similarly, although the neighborhood lies just outside the impact zones, the Hawthorne Hills
25   Community Council is a member of the Northeast District Council which has established participation standing as
     well.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 34                                                                  1001 Fourth Avenue, Suite 4200
                                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                                   (206) 292-1144
 1          The City and University recognize that the fulfillment of the University mission may also
            have adverse impacts upon the City and its surrounding communities by such things as the
 2
            generation of additional vehicular traffic in the vicinity of the University campus, affecting
 3
            housing patterns and land use policies by the location of University facilities off the
            campus.
 4          ...

 5          The City and the University recognize that the University and its continued development
            impacts the environment of the University and its surrounding neighborhoods and the City
 6          services which support the entire community.
            ...
 7
            Both parties recognize the need for coordinated comprehensive planning of University
 8
            development in order to allow the University to pursue its goals of instruction research and
 9          service to Seattle and the broader society and at the same time to foresee, assess and
            mitigate the direct, indirect and cumulative impacts of long term development on the
10          physical and human environment and on the City services.
11
     1998 City-University Agreement, UW 67, at pp. 1-2. In other words, the leasing and acquisition
12
     restrictions themselves were aimed at mitigating the acknowledged harm that derives from
13

14   unlimited University development and expansion into the surrounding residential and commercial

15   neighborhoods. Fundamentally, then, the elimination of the leasing and acquisition restrictions –

16   which will allow for unquantifiable new property acquisition, leasing and development off campus
17
     in the primary and secondary impact areas -- will result in detrimental impacts on petitioners'
18
     members' properties, residences and businesses. In going about their daily lives, members of these
19
     neighborhood groups share their urban infrastructure, including sidewalks, streets, and parking
20
     facilities, with the University's “population” of 55,500 students, faculty and staff. Further,
21

22
     petitioners' members’ neighborhood environment, streets, and vistas will be detrimentally affected

23   by unrestricted property acquisition, leasing and development by the University -- off-campus -- in

24   petitioners' neighborhoods which the record itself shows is likely to further squeeze out the much-
25
     needed small business and multi-family housing stock, in favor of large, institutional development.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 35                                                  1001 Fourth Avenue, Suite 4200
                                                                                       P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                   (206) 292-1144
 1              Petitioners have also established standing as associations. The court of appeals noted, in
 2
     National Electrical Contractors Ass’n v. Employment Sec. Dept:21
 3
                The Washington Supreme Court recently held that an "interest sufficient to confer standing
 4              may be shown in [a] personal or representative capacity." This statement reflects the
                federal approach our courts have adopted to determine whether organizations and
 5              associations have standing. In United Automobile Workers v. Brock, the U.S. Supreme
                Court stated that "the doctrine of associational standing recognizes that the primary reason
 6
                people join an organization is often to create an effective vehicle for vindicating interests
 7
                that they share with others." Thus, "[e]ven in the absence of injury to itself, an association
                may have standing solely as the representative of its members." In Hunt v. Washington
 8              State Apple Advertising Commission, the U.S. Supreme Court established a three-part test
                for determining when an organization has standing to sue on behalf of its members.22
 9
     Here, as the petitioners’ oral and written testimony excerpted above and the attached Declaration
10

11
     of Jeannie Hale demonstrate, the interests the community organizations seek to protect are not

12   only “germane” but central to their organizational purposes. See, e.g., Hale Declaration, at ¶ 3.

13              Thus, petitioners have established participation standing under the GMA to challenge the
14   University’s and the City’s actions in eliminating the lease lid. Even in the unlikely event the
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     Board finds –as respondents suggest – that there is no participation standing to challenge actions
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     by a state agency, petitioners have established APA standing pursuant to RCW 36.70A.280(2)9d)
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     to do so.
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                                                IV.      CONCLUSION
19

20              In light of the foregoing, the Board should deny the City/University motion to dismiss. To

21   do so would be the final step in insulating the University of Washington – and all of its land use

22   and development activities – from review under the GMA. Further, to resolve this issue of
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     standing as well as to perform its essential review of “the substance and policy context” of the
24

     21
25        109 Wn.App 213, 219-220, 34 P.2d 860 (2001).
     22
          Citations omitted.

     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 36                                                     1001 Fourth Avenue, Suite 4200
                                                                                          P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                      (206) 292-1144
 1   actions taken by the City and University, it is critical that the Board refuse to do so on the
 2
     incomplete record presented by the City and University.
 3

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                Dated this _____ day of November, 2003.
 5
                                                         HELSELL FETTERMAN LLP
 6

 7

 8                                                       By
                                                           Peter J. Eglick, WSBA #8809
 9                                                         Jane S. Kiker, WSBA #21586
                                                         Attorneys for Petitioners LCC, et al.
10

11   g:\lu\lcc\uw\lease lid\resp-motdismiss-2final.doc

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     PETITIONERS’ RESPONSE TO CITY’S AND
     UNIVERSITY’S MOTION TO DISMISS - 37                                                            1001 Fourth Avenue, Suite 4200
                                                                                                 P.O. Box 21846/Seattle, WA 98111-3846
                                                                                                             (206) 292-1144

				
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