Seattle Historic Waterfront Ass'n v. Amli Residential

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SEATTLE HISTORIC WATERFRONT ASSOCIATION, and MADISON TOWER CONDOMINIUM ASSOCIATION, Appellants, v. AMLI RESIDENTIAL, WOLDSON ALASKAN WAY 01, LLC, WOLDSON WESTERN 01, LLC and CITY OF SEATTLE, Respondents.

No. 39610-0-III

Court of Appeals of Washington, Division 3

April 25, 2024

UNPUBLISHED OPINION

Cooney, J.

Seattle Historic Waterfront Association and Madison Tower Condominium Association (collectively "Historic Waterfront") filed a petition under the Land Use Petition Act (LUPA) chapter 36.70C RCW, challenging the approval of a master use permit (MUP) issued by the Seattle Department of Construction and Inspections (SDCI) to AMLI Residential^[1] (AMLI) for the development of a 17-story, 245-unit apartment building (Project) located near Seattle's downtown waterfront.

On appeal, Historic Waterfront assigns error to the superior court's order dismissing its shoreline permitting issues denying its motion to allow additional discovery and to supplement the record, and affirming the city of Seattle's Office of the Hearing Examiner's (Examiner) decision approving the design review.

We affirm.

BACKGROUND

In 2014, Gonzaga University acquired real property located between Alaskan Way and Western Avenue and Spring Street and Seneca Streets in the city of Seattle (City). The property is owned by Woldson Alaska, LLC, and Woldson Western, LLC, which are wholly owned subsidiaries of Gonzaga University. The western 32 feet of the property is located within 200 feet of the Alaskan Way seawall, subjecting it to the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, and the City's Shoreline Master Program (SMP), chapter 23.60A Seattle Municipal Code (SMC).

In 2019, Gonzaga University obtained a lot boundary adjustment that divided the property into four lots (hereinafter lots A B, C, and D). Lots C and D are located within 200 feet of the Alaskan Way seawall. Lots A and B are situated beyond 200 feet from the Alaskan Way seawall. AMLI leased lots A and B from Woldson Alaska, LLC, with the intent of constructing a 17-story, 245-unit apartment building with retail and commercial space and parking for over 150 vehicles.

Before AMLI could make application for a MUP, the Project had to be reviewed by the City's Design Review Board (DRB) under the Downtown Design Guidelines (Guidelines). At the first Early Design Guidance (EDG) meeting, held on March 19, 2019, architect Jon Hall discussed the applicable guidelines, zoning patterns, how the proposed design of the building fit with the surrounding area, and provided the DRB with design options that adhered to the Guideline's massing requirements.

At a second EDG meeting, held on July 9, Mr. Hall proposed alternative design options in response to massing concerns that were raised by the DRB at the first meeting. Both EDG meetings allowed for public comment. Eventually, the DRB voted for the Project to advance to the recommendation stage of design review.

On September 6, AMLI applied for an MUP. The application contained revised plans that addressed design concerns raised by the DRB at the earlier EDG meetings. On September 19, the SDCI entered notice of AMLI's application into the public record. The notice provided that the SDCI was not requiring AMLI to undergo shoreline permitting.

In an initial administrative recommendation, dated June 18, 2020, SDCI Senior Land Use Planner Joseph Hurley recommended the Project comply with additional design requirements before the MUP be issued. A follow-up design recommendation meeting was held before the DRB on November 17. At the meeting, Mr. Hall addressed the concerns raised by Mr. Hurley by setting back and extending the façade of the south tower, extending the south tower's roofline, and recessing the entryway and extending its canopy.

The DRB concluded that, with the inclusion of proposed changes, the Project complied with the Guidelines. However, the DRB recommended several options to better meet Guidelines A-2 and B-4. Design approval and issuance of the MUP were conditioned on these issues being resolved. Previous comments concerning Guidelines B-2 and B-3 were not included in the DRB's priorities and recommendation.

AMLI adjusted the design of the Project to address the DRB's priorities and recommendations. Following the adjustments, on April 29, 2021, the SDCI issued AMLI its MUP. In its decision, the SDCI concluded the Project incorporated the DRB's recommended conditions and complied with all design guidelines, laws, and permits.

Appeal to the Hearing Examiner

On May 12, Historic Waterfront filed a notice of appeal to the Hearing Examiner. Historic Waterfront claimed the SDCI issued the MUP even though the Project failed to meet numerous Guidelines, including A-1, A-2, B-1, B-2, B-3, and B-4. On the same date, Historic Waterfront requested a land use interpretation from the SDCI Director (Director) regarding the applicability, or lack thereof, of the SMP to the Project.

On June 11, the Director responded to Historic Waterfront's land use interpretation request. The Director concluded the matter was not subject to interpretation because Historic Waterfront had "not identified any section of the code applicable to the subject site." Administrative Record (AR) at 91. In light of the Director's decision to not issue an interpretation, the Examiner dismissed Historic Waterfront's SMP appeal. On August 16, the Examiner conducted a one-day appeal hearing. At the hearing, AMLI presented the testimony of Mr. Hall, the City presented the testimony of Mr. Hurley, and Historic Waterfront presented the testimony of architect John Adams.

Mr. Hall testified that AMLI had made several adjustments to the overall design to account for the concerns flagged by the DRB, such as adjusting the heights, massing, and setbacks of the north and south towers, and adjusting the façade by the color of the glass, the color of the mullions, and the color of raised metal panels. Mr. Hall testified that through the evolution of the design review process, the Project gained compliance with the Guidelines. Mr. Hurley testified about the design review process and that the Project met the Guidelines.

Mr. Adams testified that the Project lacked the "distinctive pallet of materials" necessary to enhance the City's skyline. Clerk's Papers (CP) at 404. Mr. Adams noted the Guideline's use of the Watermark Tower as an example of a building that truly enhanced the City's skyline. He testified that the addition of a dark stripe at the top of the tower was insufficient to make the tower distinctive. Mr. Hall responded that the Watermark Tower was only one example and "plenty of other examples of more modern buildings than⎯than these, which use different elements to articulate the roofline and provide that interest that the⎯the guidelines have in mind." Id.

After considering the testimony of the witnesses and the entire record, on September 24, the Examiner issued a decision. In part, the Examiner concluded:

3. The question before the Hearing Examiner is not whether alternative project designs would be preferable or are more aesthetically pleasing within the subjective view of an Appellant (or the Examiner); it is whether the City erred in approving the design review for the Project. In addition, where, as here, legal argument presented by the Appellants is largely limited to generalized references to testimony from its witness Mr. Adams, and conclusory statements about the Project design with no reference to the record, the Appellants cannot adequately meet their burden of proof.

AR at 252. The Examiner concluded that "the Director's design review Decision was not shown to be clearly erroneous" and affirmed the Director's design review decision. Id.

Appeal to the Superior Court

Historic Waterfront appealed the Examiner's decision to the superior court under the LUPA and moved the court for an order authorizing limited discovery and allowing supplementation of the record regarding its SMP issue. In response, AMLI moved for partial summary judgment or, alternatively, summary judgment on the SMP and Guideline claims.

The superior court granted the motion for partial summary judgment, concluding that Historic Waterfront's SMP issue was time barred under the LUPA because it was not filed within 21 days of the final land use decision. Since the SMP issue was time barred, the court denied Historic Waterfront's motion for limited discovery and for supplementation of the record. The court then examined the remaining LUPA claims by reviewing the entire record pursuant to RCW 36.70C.110. Ultimately, the court concluded that Historic Waterfront had failed to satisfy its burden under RCW 36.70C.130(1) and denied the LUPA petition.

Historic Waterfront appeals.

ANALYSIS

On appeal Historic Waterfront assigns error to the superior court's order dismissing its SMP issues, denying its motion to allow for additional discovery and to supplement the record, and affirming the decision that approved the design review.

I. Appeal of Shoreline Permitting Issue

Historic Waterfront argues that the superior court erred in dismissing the SMP issue as untimely⎯that, under RCW 36.70C.040, it had 21 days from the Examiner's decision (September 24, 2021) to file its appeal of the SMP issue. We disagree. The SMP issue was not properly before the Examiner. Under the LUPA, the SDCI's decision on the SMP became a final land use determination prior to the Examiner issuing his decision.

The superior court's dismissal of the SMP issue represents a legal conclusion. We review legal conclusions de novo. See Birgen v. Dep't of Lab. & Indus., 186 Wn.App. 851, 856, 347 P.3d 503 (2015); Nickum v. City of Bainbridge Island, 153 Wn.App. 366, 374, 223 P.3d 1172 (2009).

Th...