Sammamish Home Owners March Update

Here is a brief update on lake-related news in Sammamish.  It concerns the East Lake Sammamish Trail (ELST).

The federal issue – the ongoing quiet title action to resolve ownership of the former rail corridor – is still awaiting a decision by the US Supreme Court as to whether that court will hear our case.  An answer is expected soon, and SHO will issue a detailed update on that as soon as we have news to report.

The immediate and important news is that King County has released its 90% plans on ELST Segment 2B (middle section).  The plans are available online in two places:

1.  On the ELST website.  Here’s a link:

https://www.kingcounty.gov/services/parks-recreation/parks/trails/regional-trails/popular-trails/east-lake-samm/segment-b.aspx

Scroll down to where you see “Design” and click the + to see a list of pdf documents that comprise the plan drawing set.  You will probably need to zoom in on most of them to make things legible.

2.  On the city of Sammamish website.  Here’s that link:

https://spaces.hightail.com/space/UZCBUXedXQ

The county has applied to the city for the Clearing and Grading permit for Segment 2B, and the 90% Plans constitute the main documentation on which that permit application is to be evaluated.  The city is accepting public comments on the application until April 4^th.  There is no public forum planned for this, but the city states that any such comments “will be taken under consideration”.  Comments are to be sent to Andrew Johnson, the planner who is the focal point on the ELST for the city.  Comments may be emailed to:

AJohnson@sammamish.us

A final note:  SHO will continue to incur legal costs to pursue the action in federal court on your behalf.  If you have not already contributed the minimum requested ($500) please do so.  Mail your check to:

SHO

167 E Lk Sammamish Sh Ln NE

Sammamish, WA  98074

Sammamish Home Owners November Update

Here is your November update on lake-related news in Sammamish. This will start with brief summaries of four matters, but you are encouraged to read on for more insight.

The federal case
Our quiet title action in federal court concerning ELST ownership continues to be disappointing. As mentioned in our August Update, on August 3rd the 9th Circuit Court of Appeals issued a ruling that rejected our arguments and fully supported King County’s claim of rights to the entire ELST corridor. Our attorneys promptly filed a Request for Rehearing. On September 11th the 9th Circuit issued a denial of that request. This means our only recourse is to appeal to the US Supreme Court, which we intend to do. The instrument for doing that is a “petition for certiorari”, and the deadline for submitting that is December 10th.

Of course, SHO will continue to incur costs to pursue this action on your behalf. If you have not already contributed the minimum requested ($500) please do so. Mail your check to:
SHO
167 E Lk Sammamish Sh Ln NE
Sammamish, WA 98074
This is a protracted battle and SHO’s treasury is getting low. If you have any doubts as to the importance of staying the course, please read King County’s intentions below.

State Superior Court case in King County
This is the lawsuit filed in 2015 by 13 trailside property owners seeking quiet title relief for their homes and other property that King County claims are on public land. Eight of those owners have homes either partially or completely located in the former rail corridor. These folks are aggressively defending their property rights. The trial date is currently February 11th. The expectation is that the County will file a Motion for Summary Judgment in December in which they will argue that state property rights laws do not apply and the corridor as deeded from BNSF to the County is federally protected.

Included in this case is a counterclaim by the County to eject or require rent or special use fees for all structures or improvements located in the corridor, which they assert are illegal (see King County’s intentions below).

SHO is not involved in that litigation, but strongly supports those property owners in principle.

Shoreline Hearings Board
The SHB recently ruled on citizen and King County appeals of the City of Sammamish’s denial of a Shoreline Substantial Development Permit for the remaining, middle segment (2B) of the ELST. The citizens – trailside property owners – were not asking that the permit be granted, but argued that the conditions the city placed on the granting of such permit did not take into account ownership rights these parties believe they have. The county, of course, simply wanted their permit to be granted unconditionally.

Not surprisingly, the county got what it wanted. On November 7th the SHB actually overruled the hearing examiner’s denial of the SSDP and directed the City to issue the permit.

Meanwhile construction of the segment 2B remains on hold pending other permits the county needs to obtain. The citizens who were plaintiffs before the SHB will likely appeal the SHB decision to the next court. The City of Sammamish also has the opportunity to appeal the decision.

Willowmoor Project
The “Willowmoor Project” to reconfigure the “transition zone”, where Lake Sammamish outflow drops into the Sammamish River, continues in the planning stage. On October 4th two meetings were held in Marymoor Park. One was the Stakeholder Advisory Committee (SAC) meeting at which King County reported on progress and presented results of a preliminary analysis of the use of a “dynamic weir” to actively control lake levels during winter storm series and low water in late summer. The other meeting was open to the general public and was to solicit citizen input as to what recreational considerations should go into transition zone design. As of this time the results of that meeting have not been reported.

———————
Below is more information on two of the above matters.

Federal case
Our attorneys concur that as things stand, this matter represents a gross miscarriage of justice. The ruling of the Federal District Court in Seattle, effectively giving King County ownership of the entire rail corridor, flies in the face of roughly fifty other rulings across the country. Those rulings found the rails-to-trails act only granted a jurisdiction a surface easement for a trail, not the right to dictate use of an entire rail corridor as if they owned it.

There is no guarantee that the US Supreme Court will hear our case, but there are a couple factors that our attorneys say may prompt the court to take this one. One is that there have not been any rails-to-trails cases brought before that court for many years. The other is that the 9th Circuit Court’s ruling conflicts with that of the other circuit courts, and these kinds of conflicts are something the Supreme Court feels compelled to remedy.

For more on the impact on trailside property owners if the federal district court’s ruling is allowed to stand, see King County’s intentions below.

Willowmoor Project
SAC members representing the lakeshore community report that the dynamic weir analysis is not encouraging as regards the ability to control high water events and prevent damage to docks, shorelines, etc.

There are two key factors at play. King County is responsible for maintenance of the transition zone (TZ), and reduced vegetation maintenance in recent years restricted outflow and effectively raised the average level of the lake. The other factor is that drainage from the Bear Creek Basin enters the river via Bear Creek just downstream of the TZ, and due to development in that basin that outflow has increased to the point where, combined with the flow from the lake, the downriver capacity is exceeded. In extreme storm periods that extra flow actually restricts drainage from the lake and aggravates Sammamish high water events.

A dynamic weir would allow the level of the lake to be lowered in advance of forecast storm events, allowing the lake to store some of the extra water without going as high. But the SAC members representing the lakeshore say the weir analysis report showed only minimal reduction in lake level increases by this means. The weir analysis is preliminary, however, and a revised analysis is forthcoming that is based on computer modeling from observational data.

King County’s intentions (ELST)
King County is taking an extreme position on their right to make demands of adjacent property owners. Those intentions are spelled out in an “Answer and Counterclaim” filed by the County against the 13 trailside residents mentioned above. In that filing the County requested the court to dismiss that case, offering various reasons. (For the full text of that document, see posting dated August 24, 2015 on SHO website at www.sammamishhomeowners.org )

The case is now in Washington State Superior Court. But the County’s arguments are very revealing of what its true intentions are, not just as regards these plaintiffs but for all of us with property adjacent to the ELST. The following are excerpts from the referenced Answer and Counterclaim that convey this.

(Note that the use of the word “admits” is legalese and should be thought of as “asserts”.)

King County admits that it possesses property rights under the specified deeds that
coverthe entirety of the ELSRC and grant King County exclusive control over the ELSRC,
including the right to allow public use of the ELSRC.

King County admits that some or all of plaintiffs have constructed walkways, driveways,
parking areas, landscaping systems, utilities and have planted landscaping within the
ELSRC.

King County owns fee title or exclusive railroad easement rights characterized as a
“quasi-fee” in the portions of the ELSRC that are adjacent to plaintiff’s property.

Plaintiffs have interfered with King County’s property rights in the ELSRC by erecting
and maintaining various unauthorized improvements that impede King County’s access to
its property and prevent public enjoyment.

Under RCW 7.28, title to the disputed portion of property should be quieted in King
County.

Plaintiffs should be required to remove any unauthorized improvements erected and
maintained within the ELSRC.

Plaintiffs should be required to pay current and back rent and/or special use fees for
all unauthorized uses of the ELSRC.

As mentioned, some of these 13 plaintiffs even have portions of their houses, constructed with all required permits, that are within the corridor. The County says that doesn’t matter, that they must get “special use permits” and pay fees to keep them there. And like many of us, they have gardens, parking, landscaping, and other enhancements within the former rail corridor that will either have to be removed or rented from the County.

This is the future we all face if trailside property owners do not prevail in these court actions.

SHO Board of Directors

Please send your contributions to SHO at the following address:

Registered Agent, Sammamish Home Owners
167 E Lk Sammamish Sh Ln NE
Sammamish, WA 98074

On January 5, the Hearing Examiner for the city of Sammamish issued a decision denying the Shoreline Substantial Development Permit (SSDP) for segment 2B without prejudice because the 60% design plans on which the application was based are incomplete. Denial without prejudice allows the County to resubmit the application after incorporating the missing information.

The County decided to appeal the Hearing Examiner’s decision to the Shoreline Hearings Board (SHB) rather than provide the additional information.

SHO also filed an appeal with the SHB. Our appeal asserts that there are insufficient conditions protecting the environment within the Hearing Examiner’s decision. The following are the specific conditions requested in the appeal:

• Disallow any improvements that serve purposes other than providing a hiking and biking trail.

• Condition any future approval of the Permit on a trail width, in areas where the stream and wetland buffers are not implicated, based on AASHTO guidelines of 16 feet, including 2 feet of graded shoulder on each side.

• Condition any future approval of the Permit on a trail width, in areas where the stream and wetland buffers are implicated, based on AASHTO guidelines of 14 feet, including 2 feet of graded shoulder on each side.

• Condition any future approval of the Permit on the use of the existing interim Trail centerline, which follows the rail bed, minimizing the negative impact to the environment.

Three homeowners who live in Mint Grove generously agreed to be the appellants or the appeal. SHO’s legal council recommended that SHO not be included as an appellant to simplify the appeal process. In the past the County has claimed that SHO did not have standing because it owns no property along the trail.

SHO plans to continue preparing the arguments and exhibits for the hearing and will be responsible for finding expert witnesses. Anyone qualified as a wetland biologist, civil engineer with trail/road construction experience, or traffic engineer is asked to contact SHO to volunteer their services.

SHO will need exhibits to provide to the SHB showing where and how the relocation of the centerline of the proposed trail will damage the environment. This includes damage done by clearing within the CG lines shown on the drawings. If you have or willing to take photos, please contact SHO; we need your help.

SHO Board

The Hearing Examiner denied the SSDP for segment 2B without prejudice because the 60% design plans on which the application was based, are incomplete.

“The Examiner concludes that the County’s application was incomplete because the site development plans (Exhibit 7) lack all information required for a complete application under WAC 173-27-180(9)(f). Specifically, they do not depict any utilities and may not depict all structures in the vicinity of the proposed construction. An incomplete application cannot be processed. An incomplete application creates no vested rights. An incomplete application cannot be cured by imposing a condition on the requested SSDP.”

The complete decision can be found at the following link:

https://www.sammamish.us/media/2256/ssdp2016-00415-elst-seg-2b-decision-unsigned.pdf

Denial without prejudice allows the County to resubmit the application after they have incorporated all required information. Since the primary reason for the denial is that the County must show all utilities, some property owners may have leverage with the County in order for the County to handle the utility rights where they cross private property. It is not clear whether the resubmitted application would be subject to another hearing.

The Examiner rejected most of the conditions recommend by the City including narrowing the trail width and permitting existing structures. The Examiner acknowledges that he cannot resolve ownership issues. He also opines that there are so many conflicting issues involved that he could not render a decision that is acceptable to all parties affected and that an appeal of whatever he decided would be probable. It is not known at this time if the City (or the County for that matter) will appeal the decision. Additionally, any party affected by the decision has the right to appeal. Appeals would be heard by the Shoreline Hearings Board. It is true that the decision delays the start of the project. This is good news in that some of the existing legal challenges and appeals may be decided before the County could begin construction and the whole legal landscape could have changed by then. We believe that there would also be the opportunity to appeal the permit approval once the County has corrected the deficiencies in the plans. This could also further delay the project until we have more clarity to the legal challenges. We’ll keep you informed of conditions as they develop.

SHO Board

The Segment 2B SSDP hearing was concluded on December 22^nd. On that day King County and the City of Sammamish filed their closing arguments.

The final conclusion for each is quoted below:

KING COUNTY

“King County asks that the Examiner approve the SSDP with the footprint proposed by the applicant. We further ask that any conditions be limited to what is necessary to ensure SMA and SMP compliance as the project moves forward.”

Earlier in its 26-page document, the County argues that the City’s recommended conditions are unnecessary, vague, overbroad, and unreasonable.

CITY OF SAMMAMISH

“The City respectfully recommends approval of the SSDP, but subject to the Conditions detailed in Staff Report/Exhibit 1.”

Earlier in its 18-page document, the City argues on behalf of its Conditions. These conditions begin on page 17 of the following document:

https://www.sammamish.us/attachments/pagecontent/47039/01_Exhibit_SSDP2016-00415%20Segment%202B_Staff%20Report%20Final100217_signed.pdf

The decision of the Hearing Examiner is due on Tuesday, January 9.

In other matters, there have been developments in the quiet title suit in federal court. The appeal of the ruling of judge Pechman to the 9^th Circuit Court of Appeals is expected to be heard sometime this spring. Plaintiffs in the case have uncovered new evidence that should reinforce the appeal. That new evidence shows that the plaintiffs have been paying taxes on the disputed property contrary to the County’s claim that the County has been “paying” the taxes. The matter of tax payment was one of the pivotal issues in the original case and we expect the new evidence to raise the probability of a successful appeal. The Court has accepted the new evidence.

In addition, the plaintiffs in the Federal suit have entered a motion to stay Pechman’s order until the appeal is decided, with the new evidence noted above as part the justification for the stay. They argue that there is a reasonable chance that they will prevail in their appeal and that permitting the County to proceed with construction would cause irreparable harm to the plaintiffs and other property owners who are not party to the suit. As you know, the County is using Pechman’s ruling to subject other property owners to their claims of ownership and use rights, even though the legal situation with other properties is entirely different from those of the plaintiffs; Pechnman’s ruling only applies to the plaintiffs’ property.

The plaintiffs’ motion to stay Pechman’s order can be viewed under “Legal and Other Documents.”

The SHO Board wishes to thank all of you that have supported our efforts to construct an ELST that will be an asset to the community while respecting the property rights of the underlying fee owners over whose property the trail traverses. We expect 2018 to be an eventful and pivotal year in these efforts. We wish you all a Very Happy (and Successful!) New Year.

SHO Board

The SSDP hearing for ELST Segment 2B begins on Friday, November 3 at City Hall. This hearing is a project permit hearing at which both the County and City will present their cases without cross examination. Public comment will commence at 1pm on the first day of the hearing with the hearing examiner estimating the number of comments to be made each day. The City is expecting a large turnout with additional off-site parking made available for the hearing.

The hearing examiner, John Galt, will make his decision based on the law and the testimony from the County, City, and public comment. Mr. Galt is a very thorough examiner who will read everything previously presented, including earlier public comment.

King County’s responses to individual public comment has been posted on the City’s website:

https://www.sammamish.us/attachments/pagecontent/47295/SSDP2016-00415_ELST_Segment_2B-10-10-17.pdf

The responses are in a spreadsheet that can be searched. With the font being very small and the search tool being difficult to use on the website, SHO recommends that you download the file to search it on your computer. If you want to comment on a King County response, whether positive or negative, you need to sign up to make your comment at the hearing.

The sign-up sheet for public comment will be available at 9am on the morning of November 3 at City Hall. Comments will be heard in the order of this sheet. As stated above, the hearing examiner will estimate who will be able to comment on the first day. Thus, if you are not among whose who will be able to comment on the first day, you do not have to listen to others comment while waiting for your turn. The same process will be used for the remaining days of the hearing. Remember that your comment will be limited to 3 minutes unless you represent a recognized community organization when 5 minutes will be allowed.

SHO recommends that everyone be courteous and respectful of the hearing process. You are trying to convince Mr. Galt to make decisions in your favor. Thus, talking against the County or even the City during your comment is unlikely to be persuasive; stick to the facts and offer options to achieve your objectives.

The complete procedures for the hearing are posted on the City website:

https://www.sammamish.us/attachments/resolutions/R2017-727%20-%20HE%20ROP.pdf

Note that only the project hearing procedures apply to this hearing. The summary of the process is on page 13 of Attachment A, page 17 overall.

SHO Board

Very Important…  The general election is only two weeks away and the ballots are already mailed.  It is critical that we elect City Council members who understand the complexity of completing the ELST while respecting the environment and property rights. We have reviewed the qualifications and positions of all candidates and are recommending for your consideration the following candidates.

Please vote!  Your vote is extremely important to ensure that we have City Council members who understand the trail issues and are supportive of the trailside community.

Position 1 – Mark Baughman
Position 3 – Karen Moran (note: there are two Karens on the ballot- Karen Moran is SHO’s choice
Position 5 – Chris Ross
Position 7 – No opinion

SHO Board

 

October 7, 2017

City Council Members and Mr. Howard;

This is to expand on an important issue that Reid Brockway addressed in brief in public comment to the October 3^rd City Council meeting. It is one of two issues concerning the handling of public comment on the 60% design of Segment 2B of the East Lake Sammamish Trail.

To reiterate, those two issues are:

1. The conflict between a public hearing on the SSDP scheduled to start November 3^rd and King County’s published statement that its responses to citizen comments may not be available until “late fall”.

2. The apparent absence of a venue, and possible lack of city support to its citizens, for those issues concerning the 60% design deemed out of scope for a SSDP.

It is the second of these that SHO wishes to elaborate. The first has a simple solution: do not hold the public hearing until the county has finished responding to the citizen issues.

There will likely be many legitimate and serious issues deemed out of scope of a SSDP. It should be recognized that King County, in its responses to the city’s comments, and those of other commenting entities such as the fire district, asserts that many of the issues raised are outside the scope of a SSDP. That includes, for example, most of the surface water management issues. And it is likely, given that a SSDP is primarily concerned with the shoreline environment, that the hearing examiner will agree with them in many cases. Yet there are many issues that will remain that need a fair hearing, and the county has demonstrated with the other trail segments the practice of rejecting all but the most unarguable of the citizen issues.

In addition, not all of the right-of-way is within the Shoreline Jurisdiction. That portion that is not – roughly one mile in total – is not subject to the SSDP. Consequently any issues unique to that portion will probably not be considered in the hearing.

As just one example of an issue likely not to be resolved at the hearing, there is the matter of “dispersion areas”. The 60% plan designates these bands of vegetation the county intends to create on the west side of the trail to absorb runoff from the trail. The bands will be 25 feet wide and will take up more than half of the land within the right-of-way west of the trail. Parking, gardens, and other improvements west of the current trail will have to be removed. And they extend for long distances affecting dozens of properties whose ownership remains in question. Given the county’s poor maintenance practices, these will turn into thickets of dense vegetation. One merely needs to look at the thicket surrounding Zackuse Creek, which was re-vegetated a few years ago, to see this.

This conversion of useful land into unusable thicket, and the impact that has on adjacent property owners, is unnecessary. The depression between the Parkway and the former rail bed on the east side of the trail provides a retention area for runoff from the trail. It is already performing this function. The county merely needs to grade the trail so it slopes to the east instead of the west and the cost and consequences of these dispersion areas can be avoided.

But is this an issue that the hearing examiner will decide? Likely not. The need to deal with runoff is perhaps legitimately of concern to a SSDP, but the choice between two ways of accomplishing it is probably not. (Surely the county will argue that it is not.)

There are numerous other issues like this that will likely be deemed outside the scope of a SSDP. So the question becomes will the city play a role in resolving them on behalf of its citizens? Does the city intend to be an agent in dealing with them, or are we citizens to be left on our own in fighting a county that has shown itself to be largely unresponsive to citizen concerns?

Or to put it another way, will there be another mechanism – perhaps review of the Clearing and Grading Permit – for getting these other issues addressed in a constructive manner? And will the citizens have some forum, akin to the SSDP hearing, for arguing their “cases” where the county’s responses (assuming they do eventually come) are unreasonable?

Note that the county has committed to do a 90% design, and to provide the opportunity for public review of that design, and may argue that these issues can be dealt with then. But our experience is that by that time the county is very reluctant to make any further changes, arguing cost and schedule impact, and will likely dig in its heals on any accommodation. The time to deal with these 60% design issues is before things proceed that far.

SHO strongly urges the City Council and staff to devise a plan for dealing with these “out of scope” issues once the county has responded to citizen comments.

Sincerely,

Sammamish Homeowners (SHO)

King County’s responses to the City’s letter of April 12 are now posted on the following website:

https://www.sammamish.us/government/departments/community-development/current-projects/

King County has NOT responded to individual comments. According to the City, this may not happen until September. Meanwhile, you may want to look over the “Response to City Letter” where King County claims that many issues important to shoreline residents are marked as “Not a shoreline comment;” meaning that King County intends to ignore the issue with respect to obtaining the Shoreline Substantial Development Permit (SSDP).

SHO Board

As a result of the significant number of comments received by the City of Sammamish regarding the proposed 60% plan for Section 2B of the ELST the City facilitated a public meeting with representatives of King County Parks on Tuesday, April 25. Unfortunately the meeting was yet another King County Parks dog and pony show reiterating once again their vision of the ELST with little if any regard to the interests of the citizens of Sammamish. No public comment was allowed. Kevin Brown, Director of Parks and Recreation Division, gave a 30 minute slide show about how well everything was going and pointing out what will happen in the construction of Section 2B. KC staff members were behind tables with aerial photos of the trail at an “open house” but provided no indication of where the trail would be located on the photos.

During Brown’s presentation there was a little laughter and at one point multiple people called out “untrue” when Brown commented that no homeowner was paying real estate taxes for the trail right-of-way (ROW). Brown also pointed out an example of a homeowners intrusion into King County’s claimed ROW that will have to be removed during construction. Interesting though that the identified intrusion is actually a home constructed under a building permit issued by the City. Otherwise, the overflow crowd that filled council chambers was quiet and disappointed.

The one thing that surprised SHO board members is how hard-line the County apparently intends to be about treating everything within the corridor as subject to County takeover, or at least the requirement to obtain special use permits and pay fees, including even docks and community waterfront. Brown emphasized that it is the County’s obligation to not allow anyone to use County property free of charge. Be prepared for a significant fee to cross the trail to utilize your own property!

This means that lawsuits proving that the County does not have fee interest in the ROW continue to be essential just to keep what we already have. SHO continues to fund the appeal to the 9^th Circuit Court of Appeals. This appeal may take until the end of 2017 or even later for a decision.