SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY

      Comes now Petitioner Association to Defend Affordable Housing, by and through its undersigned attorneys, and petitions this Court pursuant to the Land Use Petition Act, Ch. 36.70C RCW, for review of a land use decision made by the City of Burien.

1. Parties

1. Petitioner Association to Defend Affordable Housing (“Association”) is a Washington nonprofit corporation established to advance its members’ interests in the preservation of affordable housing. The Association has over 40 members who depend on the availability of affordable housing in King County.

      Petitioner’s mailing address is:

            Association to Defend Affordable Housing

            2030 First Avenue, Suite 201

            Seattle, WA 98121-3140

      Petitioner’s attorney is:

            Peter L. Buck

            The Buck Law Group, PLLC

            2030 First Avenue, Suite 201

            Seattle, WA 98121-3140

2. Respondent City of Burien (“City” or “Burien”) is a Washington non-charter, optional code city, a political subdivision of the State of Washington. The Lora Lake Apartment complex is located within the City. The City is named as a party to the review of this land use petition pursuant to RWC 36.70C.040(2)(a). The mailing address for the City of Burien is:

      City of Burien

      15811 Ambaum Boulevard Southwest, Suite C

      Burien, Washington 98166-3066

      1.3 Respondent Port of Seattle (“Port”) is a port district authorized under the laws of Washington State. The Port is the owner of the Lora Lake Apartment property, where a land use project will include the demolition of 234 existing apartment units (“Demolition Project”). The Port was identified as the Property Owner on the Demolition Permit application and was identified as the Applicant on the Demolition Permit. Respondent Port is named as a party to the review of this land use petition pursuant to RCW 36.70C.040(2)(b)(i) or alternatively pursuant to RCW 36.70.040(2)(b)(ii). The mailing address for the Port of Seattle is:

            Port of Seattle

            2711 Alaskan Way

            Seattle, Washington 98121

4. Respondent R.W. Rhine, Inc. is a corporation registered in the State of Washington. R.W. Rhine, Inc. was identified as the Owner/Agent on the Demolition Permit application and as the Applicant on the Demolition Permit. Respondent R.W. Rhine, Inc. is named as a party to the review of this land use petition pursuant to RCW 36.70C.040(2)(b)(i) or alternatively pursuant to RCW 36.70.040(2)(b)(ii). The mailing address for R.W. Rhine, Inc. is:

            Douglas Rhine

            1124 E. 112th St.

            Tacoma, Washington 98445

2. Decision to Be Reviewed, Jurisdiction, Venue, and Standing

1. The land use action at issue is the decision of Ms. Sangeyah Badu of the City of Burien to issue a Demolition Permit (attached hereto) for the demolition of the Lora Lake Apartment complex (“Action”).
2. The Court has jurisdiction over this action under RCW Chapter 36.70C.
3. Venue is proper under RCW 4.12.025 because the Respondent City and the Demolition Project are located in King County.
4. The Petitioner has standing pursuant to RCW 36.70C.060(2). As a result of the Action, Petitioner’s members are aggrieved and adversely affected within the meaning of RCW 36.70C.060 for the following reasons:
1. The Action has prejudiced Petitioner’s members and is likely to cause future prejudice to Petitioner’s members for reasons that include, but are not limited to, the following: Petitioner’s members are dependent on the supply of affordable housing in King County. The City and the Port intend to demolish 234 units of affordable housing. Of these, 162 housing units do not need to be demolished for any airport buffer purposes. This action will materially and unnecessarily reduce the stock of affordable housing in the region by 162 units and will result in direct and adverse impact to the Petitioner’s members’ ability to find affordable housing.
2. Pursuant to WAC 197.11.444(2)(b)(ii), housing is an element of the built environment to be analyzed under the State Environmental Policy Act (“SEPA”). Accordingly, Petitioner’s members’ interests are among those that the City and the Port were required to consider pursuant to SEPA.
3. A judgment in favor of the Petitioner would substantially eliminate or redress the prejudice caused to Petitioner’s members by the unnecessary demolition of 162 housing units deemed “surplus” by the Port of Seattle. The City’s issuance of the Demolition Permit requires consideration and analysis of the state of affordable housing in 2007, the impacts of destroying the 162 housing units, mitigation for the permanent loss of these 162 affordable housing units, and alternatives to destruction of the 162 units, all of which are required by SEPA, RCW 43.21C030(c).
4. Petitioner has exhausted its administrative remedies to the extent required by law. Burien’s municipal code section only provides appeals for applicants, owners, or parties of record to a decision. Thus, there is no administrative appeal and the Petitioner’s review is directly to Superior Court. The City’s issuance of the Demolition Permit is properly before this Court.

3. Statement of Facts

1. The Association is a Washington nonprofit corporation. The Association’s corporate purpose is to “advance its members’ interest in preserving and obtaining affordable housing in King County.”
2. The Association’s over 40 members are homeless and/or currently occupy affordable housing. Both of these types of members depend on a regional supply of affordable housing to find housing. The Association has other members who are committed to preserving, maintaining, and creating affordable housing in King County. All of these members seek the opportunity to comment on the proposed Demolition Project in the context of SEPA.
3. Consistent with Washington State law, Burien’s Demolition Permit application form says that compliance with the SEPA is normally required for demolition projects. The City, however, decided that SEPA compliance was not required for this particular Demolition Permit application. In making this decision, the City appears to have relied on excerpts of the SEPA/NEPA documentation previously prepared by the Port.
4. As of August 6, 2007, the City’s Demolition Permit file contained only excerpts of the SEPA/NEPA documents previously prepared by the Port, rather than complete SEPA/NEPA documentation. Additionally, there is no record that the City reviewed such complete SEPA/NEPA documentation prior to issuing the Demolition Permit.
5. The Port’s Environmental Impact Statement (“EIS”) documents, on which the City has ostensibly relied in its issuance of the Demolition Permit, do not discuss the environmental ramifications of demolishing these 162 units because when the Port initially acquired the Lora Lake Apartment complex it believed that the entire Lora Lake Apartment complex would need to be torn down to accommodate the buffer.
6. Today, 162 units are not needed to accommodate the buffer. Where there was no choice but to demolish the entire Lora Lake Apartment complex at the time of the Port’s original analysis in 1996 and 1997, there is a choice now.
7. Under SEPA, Burien and the Port must analyze the ramifications of destroying a significant regional commodity: affordable housing.
8. The City’s issuance of the Demolition Permit is illegal because the Port’s EIS documents, on which the City has ostensibly relied in its issuance of the Demolition Permit, do not consider the regional impacts of, mitigation for, or alternatives to the removal of 162 units of affordable housing.
9. Regardless of positions taken in the past, or deals made today, Burien and the Port are required to comply with state law—in this case, SEPA.
10. At this point, the Association does not intend to seek a temporary restraining order or injunction. Under the recent Court of Appeals decision of Bauman v. Turpen, 160 P.3d 1050 (Wash. App. 2007), the Port will proceed at its own risk if it demolishes these units. In Bauman, the defendant proceeded with a building project despite its knowledge of ongoing litigation affecting the construction, and was consequently ordered to remove the roof that was constructed while litigation was pending. Like the defendant in Bauman, once this action is served on the Port, the Port will not be able to claim the protection of “innocent defendant” status.

4. Statement of Errors

1. Petitioner realleges and incorporates by reference the preceding paragraphs.
2. The City’s decision to issue a Demolition Permit violates Washington’s State Environmental Protection Act.
3. The Port and the City have not complied with the requirements of a supplemental EIS to address the permanent loss of affordable housing as required by WAC 197-11-600(3)(b)(i) and (ii).
4. The Port and the City have not complied with the requirements of WAC 197-11-926 regarding determination of lead agency.

5. Prayer for Relief

      Wherefore, the Petitioner prays for relief as follows:

1. For an order under the Land Use Petition Act reversing the City’s decision to issue a Demolition Permit prior to demolition of the 162 surplus units and requiring preparation of a supplemental EIS;
2. For an order requiring the Port to rebuild or repair any of the 162 units it damages since it is not an “innocent defendant” per Bauman v. Turpen, 160 P.3d 1050 (Wash. App. 2007);
3. For an award of the Petitioner’s attorneys’ fees and costs to the extent allowed by applicable law; and
4. For such other relief as the Court determines to be just and equitable.

DATED this 7^th day of August, 2007.

THE BUCK LAW GROUP, PLLC

By  

Peter L. Buck, WSBA # 5060

      Attorney for Petitioner

 

CERTIFICATE OF SERVICE

      I hereby certify that I served a true and correct copy of the foregoing document on the following named person(s) on the date indicated below by first-class mail, postage prepaid, addressed to said person(s) at his or her last known address(es) as indicated below.

DATED this 7^th day of August, 2007.

THE BUCK LAW GROUP, PLLC

By  

Sharon Kendall

      The Buck Law Group, PLLC