Seattle City Council Public Assets & Native Communities Committee 4/6/21

you

I think he's not playing today.

We are recording.

OK.

OK.

Let's just do a call to order.

Good afternoon.

This is a meeting of the Public Assets and Native Communities Committee.

The date is April 6, and the time is 2 o'clock.

I'm Deborah Juarez, and I am the chair of the committee.

Will the clerk please call the roll?

Council Member Juarez?

Here.

Council Member Peterson?

Here.

Council Member Herbold?

Council Member Mosqueda.

Council Member Sawant.

Present.

Thank you for being here today.

I expect the other council members will be here shortly.

I'll move to approval of the agenda.

There's no objection.

The agenda will be adopted.

Hearing no objection, the agenda is adopted.

Now I will move to the chair's report.

Today is the committee's second and last hearing of appeals to the hearing examiners initial and final report on the waterfront lid number 6751. This is the final assessment role.

The hearings today and on March 2nd are in compliance with requirements with the revised code of Washington, that is the RCW and the Seattle Municipal Code, that council hear any appeals from the report of the hearing examiner on the final assessment role for local improvement districts.

The initial report was filed with the clerk on September 8th, 2020. Based on the hearing examiner's recommendation, the council remanded 17 properties to the city appraiser for the waterfront lid for more analysis.

The hearing examiner held a hearing on the remanded properties and prepared the final report consolidating the recommendations on the remanded properties with all recommendations from the initial report.

The hearing examiner filed the final report with the city clerk on February 1st, 2021. The city clerk published notice of the final report and sent courtesy notices to parties who made timely protests before the hearing examiner.

Any party who made a timely protest of assessments in the hearing examiner's initial hearing could file an appeal of the final report with the clerk.

That is why you will find two separate indexes in the central staff memo.

Attachment one shows an index of appeals to the initial report, attachment two shows an index of appeals for the initial and final report.

In total, the clerk has scheduled 71 unique valid appeals before the Public Assets and Native Communities Committee.

Because some appeals were filed for only the initial report, some only for the final report, and some for both, the total amount of appeals shown on the indexes attached to the central staff memo adds up to more than 71 appeals, as I shared earlier.

The appeal of the initial report and the appeal of the final report are considered together here today as a complete appeal for any unique hearing examined case number.

We heard the first batch of appeals on March 2nd in this committee, where we reviewed 32 appeals to the hearing examiner's initial report.

Today, we will hear the remaining appeals of the initial report and all of the appeals of the final report.

After all appeals are reviewed, this committee may make a recommendation to council, that is to full council.

We will open the hearing with Eric McConaughey from central staff to walk us through the standard of review for each appeal, as well as the scope of the committee's recommendation for each appeal.

He has provided each member guiding material ahead of the meeting.

And I, of course, myself have also went through the clerk's file with all the different appeals.

Because the appeals are quasi judicial matters, The committee is not able to accept public comment today.

An important reminder to my colleagues, we hold these hearings publicly so we can discuss quasi-judicial matters openly.

So please feel free to engage in conversation and ask questions as we move through the review process.

Are there any questions at this time?

Okay, not hearing any.

Council Member Juarez?

Yes.

This is Nagina.

I just want to make a note that Council Member Mosqueda is here with us, as well as Council Member Herbold.

Welcome, Council Member Mosqueda.

Welcome, Council Member Herbold.

Glad you're here.

So with that, can we read that into the record now, Nagina?

Yes, unless there are other questions by Council Members before we begin.

Nope.

Okay.

So we will go to items of business hearing of appeals.

Please read item number one into the record.

Item one hearing on appeals to the findings and recommendation of the hearing examiner on the final assessment role for the waterfront local improvement district number 6751.

I will open the hearing on the appeals to the findings and recommendation by the hearing examiner on the final assessment role for Waterfront Local Improvement District Number 6751 that are filed within the clerk file 321914. Eric, can you lead us through your presentation?

Yes, please.

Hello.

Good afternoon, everyone.

I'm Eric McConaghy.

I'm the Council of Central Staff.

And I'll just proceed right on through my remarks.

And as the chair indicated, please let me know if you have any questions as we go along, and I'll pause and do my best to answer them.

I did, as you know, the central staff memo, the memo that I prepared is attached to the agenda, and I provided it to all of you in advance of this meeting.

The council member already covered the indexes, attachments one and two.

I'll just mention that there's also a background kind of history piece that's attachment number three, and attachment number four, provides references to the entire record that was formed before the Seattle Hearing Examiner.

I'll give a little orientation to the Waterfront LID assessment, sort of for the record and for the public who may be viewing right now and view in the future.

Via ordinance 125760, the city ordered the preparation of the final assessment role for the Waterfront LID.

And it's helpful to understand that the final assessment role for any Local Improvement District is a listing of all the properties in that LID with the amount to be assessed against each property.

And it's based on the increase in value accruing to each property called the special benefit that's attributable to the construction of those local improvements.

There are specified local improvements for this waterfront LID.

They're parts of the overall Central Waterfront Program Namely, they are the Promenade, the Overlook Walk, the Pioneer Square Street Improvements, the Union Street Pedestrian Connection, the Pike Pine Streetscape Improvements, and Pier 58. Overall, the total cost of the waterfront program is about $737 million.

The estimated cost for the LID improvements is $347 million.

Of that, the waterfront LID assessment would fund $160 million of improvements plus approximately $15.5 million in financing costs of the LID.

City, state, and philanthropic funding sources round out the total program budget.

I'll just keep going on.

Let's see the questions.

Fantastic.

It's important to note the role of the hearing examiner in this.

The city council designated the Seattle hearing examiner to conduct the Waterfront LID assessment hearing.

to hear objections from property owners, presentations from the city, and to provide a recommendation to the city council.

The hearing examiner conducted the hearing beginning of February 4, 2020. About 430 property owners of the more than 6,200 properties subject to the assessments made timely objections to the hearing examiner.

The hearing examiner conducted the hearing and, excuse me, and then for what we call the initial report of the hearing examiner, he filed that on September 8th, 2020. And as the chair already described, some of those properties were remanded for further review.

That analysis was conducted with the city appraiser, the hearing examiner held a hearing on those, and then wrote up the final report, which was recommendations on those remanded properties, as well as consolidating all of the other recommendations from the initial report.

Finally, I'd like to talk about the standard of review and the scope of the decisions on these appeals.

Per the Seattle Municipal Code, review by the Committee on the Appeals shall be limited to and should be based solely upon the record from the hearing, although the Committee may permit oral or written arguments or comments that are confined to the content of the record.

For the hearing before the Committee today, like on March 2nd, no opportunity for additional oral or written argument or comments is provided.

The council's quasi-judicial rules require that the hearings examiner decision shall be accorded substantial weight, and the burden of establishing the contrary is upon the appealing party.

Both the revised code of Washington and the Seattle Municipal Code provide that after hearing appeals, the city council may accept the assessment role as prepared, correct, revise, raise, lower, change, or modify the role or any part thereof, or set aside the role in order for the assessment to be made to no vote or a new.

Committee's choices then of recommendations to council are limited to those options to approve, approve with conditions, modify, remand, or deny the appeal.

In this case, there are a number of appeals and each one receives its own decision.

After the committee votes on recommendations for action on these appeals, the council central staff, that would be me, would prepare a report to the council that would communicate that and memorialize that decision.

The council may not approve the final assessment role for the Waterfront LID without reviewing and deciding upon all appeals of the hearing examiner's recommendation on the final assessment role.

And with that, I'll end my presentation and accept any questions or turn the meeting back over to the chair.

Thank you.

Before we do that, just so this is clear on the record for those who haven't been involved in this project for many years, Thank you for the memo that you did that's dated March 31st with the four attachments with the indexes in there and the memo and the history.

I think that's attachment three, the background on the waterfront lid.

So basically, for those viewing and those who are still learning about this, it's online and you can you can certainly certainly get to it.

And the memo that Eric prepared with the attachments of all the appeals and also the background on the waterfront lid and the assessment and all the links to the ordinances, the final special benefit study, the resolutions, the clerk files, all that's there.

We've had an opportunity to go through that.

So I just want to make sure that the public knew people knew who were watching or who will be watching know that all this information was sent to to all of us counsel on our committee on March 31st, 2021. with the four attachments.

So with that, is there any questions or discussions from my colleagues?

Okay, not seeing any.

Hearing no, oh, I'm sorry, Council Member Herbold.

Okay, I'm just, I understand that as chair, you are empowered to not take testimony.

This is a very different type of a quasi judicial interaction that I'm familiar with having served on in the past on the land use committee, where we did hear within the confines of what we're of only what is on the record, but we would hear from the appellants and then the opposition to the appellants.

The thing I'm just trying to wrap my brain around is this agenda, this meeting is noticed as a hearing.

What makes it a hearing if we're not hearing anything?

Let me say something.

I'm going to let Eric answer some of that.

Thank you.

So what we started two years ago is that we, uh, we have a choice and I made the choice to hire a hearing examiner instead of committee and city council to listen to all these appeals.

And then they put a report together.

So, um, I felt it was important to have an actual attorney hearing examiner, not committee, not city council, listen to the appeals and make a record.

And that's what happened.

And then you probably didn't know all this, but then we received this 600 page binder of all the appeals and then the decision by the hearing examiner and all of that's in Eric's memo as well.

But I'm going to let Eric explain to you why this is a different kind of hearing for quasi judicial, why we did take public comment, because these are the appeals.

So they've had their day in court, so to speak.

And then we are looking at what the hearing examiner decided from the last two years.

And Eric, can we add to that about exactly what we're doing here today?

I mean, I think you could probably, I could go on and on, but I'll let you.

Yeah, I mean, just really narrowly, I feel like I understand some of this just because of my understanding of quasi judicial rules, and I understand this is different.

But what my specific question is, what makes this meeting that we're having right now a hearing?

Great, thank you for the question.

So as I mentioned before, the The committee may take oral testimony or written argument, you know, as part of the hearing that sort of in a more, maybe sort of ordinary or customary way that you think of that, but may not.

In this case, the record was formed before the hearing examiner, the appeals that were filed of the hearing examiner's recommendations, some 71 of them, those are before you all, and they present the, complaint or argument or objection to the hearing examiner's decision for each one of those things to the council.

And so the hearing is, because it's quasi-judicial, the time for the committee to be here in a transparent way, in a public way, to say, we recognize these appeals of a hearing examiner's decision in a moment where we can all sort of, in terms of being fair, do it in a public forum.

And so that's what makes it a hearing of those appeals.

And Rick, the clerk file that is attached to this agenda, it's not just an index of all the appeals, is that correct?

They also include like a link through to the materials associated with the appeals?

Yes, that's correct.

So as the appeals came in historically, and I won't go into all those details, but it's sort of, there's sort of a backend process to that.

The city clerk got them.

And as you recall, it was sort of notifying the council that they were coming in.

So those were available, but in order to make them number one, available to the public and, um, and sort of, um, sort of accessible and sort of transparent to this process, the city clerk was really great about preparing an individual folder for each appeal.

So that, and then we organized them by day because these appeals were scheduled for particular days in the committee.

So that information is available online, but has been available longer than the existence of those court files.

So.

Eric, when did we close the date on the appeals that people, when the clerk gave notice?

So there were two appeal periods.

There was one for the initial report.

And there was one for the final report.

The final report was filed.

We counted the 15 days on the final report from February 1. So there was about two weeks for people to file those appeals.

So this is the docket that I was looking at, where if we printed it, it would have been 3,000 pages?

Yeah, but each appeal, each appellant use a number of different ways to reference their materials.

In some of the appellants, the appeals are longer because they might have included the entire final report, for example, of the hearing examiner and their exhibits.

Some other appellants might have chosen a different way.

As long as they submitted those materials, we needed to take them in and call it their appeal.

And so if you were to sort of print them all out, You might print some of those things many times.

The final report, for example, during the appeals of the final report might appear over and over and over again.

It ends up being many pages because of that.

But a lot.

Yeah, there you have it.

I guess that I guess that I think I'll just stop there.

I think maybe that answers the question.

Yeah.

Okay, great.

Got a thumbs up.

Okay.

Anything else?

All right.

Thank you, Council Member Herbold.

That's a good question.

So with that, I'm hearing no further questions.

Okay.

I'm closing the hearing on the appeals to the findings and recommendations by the hearing examiner that we hired on the final assessment role for Waterfront Lead Improvement District 6751 that are filed in the clerk file under 321914. Okay, so I'm closing the hearing, did that.

Okay, now, Eric, see the committee has the complete record of this matter before it and has considered all appeals of the hearing examiner's recommendations for the final assessment of the waterfront lid.

So Eric, the next step is can you walk us through the next steps that the committee has completed their review of the appeals, that we've completed the review of the appeals, correct?

That's correct.

So with these two hearings having been opened and heard and closed, The committee now may take action on the appeals.

And the action is to make a recommendation to the council on the appeals and then to affirm or not affirm your choice, the final assessment role as recommended by the hearing examiner.

OK.

So if there's any questions, let me just say this.

We're at the juncture where we've closed the hearing.

And so I'm going to make a motion here in a moment.

But are there any other discussions or questions?

OK.

If there are no further discussion, then I move the committee recommend that the appeals in the clerk files 321-893 and 321-914 be denied.

And to approve the final assessment roll for the LID, the Local Improvement District, number 6751 with the revisions recommended by the hearing examiner.

Is there a second?

Second.

Thank you, Council Member Peterson, my vice chair.

So the motion has been moved and seconded to deny the appeal in the clerk files as stated and to approve the final assessment role.

Are there any other comments?

Council Member Herbold.

Sorry to be a pain in the patootie here.

When I was looking at the agenda, you know, and having this sort of question of, you know, what does it mean to be a hearing?

I also see that this meeting is noted for briefing and discussion, and so I was not aware that there was going to be an action.

I'm not expressing any discomfort with taking action.

I'm just asking sort of the question of procedure of whether or not this agenda needed to be noticed as an action item.

I'm actually glad you brought that up because I had a discussion with Council Member, my Vice Chair, Mr. Peterson.

When you do look under items of business, and it does say, but it does say, as Council Member Peterson pointed out, the Public Assets and Native Communities Committee may consider and take possible action.

And we have may in there consider and take possible action if indeed, in fact, somebody wasn't ready to vote and take action.

but that's why we use the word may.

Do you see that on?

I do see it.

I, um, I'm looking at the non PDF version of your agenda and to see by clicking on the PDF, that additional language is included that is not included, um, in the, I'm going to go back to the e-form for the agenda.

If you were to look at the actual PDF.

I'm glad you brought that up because Councilmember Peterson had the same concern.

That's why we use the word may consider and take possible action.

That's why we made sure that all of our colleagues got the clerk file and all the information before it goes to full You're okay?

Okay.

And you're never put pain in the patootie.

I'm not sure.

I'm not familiar with that word, but I think I understand what that means.

Okay, so now I lost where I was at.

So emotion was seconded, right?

Emotion was moved.

We had a second.

There were comments, Councilor Herboldt made a comment.

Okay, with that, not hearing anything else, will the clerk please call the roll on the denial of the appeals and approval of the final assessment roll for Local Approval District 6751. Clerk?

Council Member Juarez?

Aye.

Council Member Peterson?

Aye.

Council Member Herboldt?

Aye.

Council Member Mosqueda?

Aye.

Councilmember Sawant?

Yes.

That's five in favor.

Chair, so.

None opposed.

Correct.

And none opposed, I'm sorry.

Okay.

So I'm going to announce the final action, obviously.

The motion carries and the committee will recommend to the full city council, or recommend to the city council that they deny the appeals filed in clerk files 321893, 321914, and to approve the final assessment role for the LID 6751 with the revisions recommended by the hearing examiner.

So now that we've done that part, next is we've got to take additional steps to make this record.

So in anticipation of a possible vote, which we've done, with the result today, I requested that central staff prepare a preliminary draft of the findings, conclusions, and decision of council on this matter.

The document will be the written record on this matter.

Council's adoption of the findings, conclusions, and decision, number one, would approve the final assessment roll for the LID 6751 with the revisions, and number two, deny each of the appeals, confirming the hearing examiner's recommendation for each.

So at this point, Eric, can you please distribute electronically, because you guys haven't seen this till now, the drafted findings and conclusions and decision and briefly walk us through the document.

So there's a reason why we held that back.

I had it ready to go if the vote went this way.

And so, Eric, can you do that now and let us know when you've transmitted that?

Sure.

Just give me a few moments to put that together.

So just a moment.

So how do we know when everyone has it?

Are they just going to tell me, or how does that work, Eric?

When I push send, I'll be sending an email.

When I push it, in just a moment, I'll let you know.

Almost sorry for the pause.

No, it's OK.

I just want to make sure.

I see Council Member Peterson's looking at his screen intently to let us know when he, yes, when he sees it.

Maybe Council Member Peterson, as my vice chair, can raise his hand.

I can't switch screens.

Okay, I've sent it.

Okay, Council Member, this is Negeen.

While the email gets to the rest of your colleagues, I can share my screen for the public.

Okay, so...

Wait.

So, are we back to...

You have me on mute, right?

All right, I'm unmuted, and we have the doc, and Nagin, you pulled that up.

Is that on your screen?

That's what you're sharing, your screen?

Or is Eric sharing his screen?

That's Nagin, and just as a viewer of it, I can see it.

OK, good.

We can all see it now?

Great.

So this is what we had kind of queued up in anticipation either way for the findings and conclusions and decisions.

So with that, Eric, you want to walk us through this?

Sure, a findings conclusions decision document is, as you described, Chair, the written record of the recommendation on these matters from the committee.

The beginning is a background.

Sometimes you can think of this as sort of like the recitals that would be on a bill or a resolution.

The information would be very familiar because it has lots of shared information that you would also see in the background document that's attachment number three.

But it's important to have this here to give context to this to this document.

And Nagin, if you don't mind just kind of kind of stepping through, you can either just go by page by page or roll down, that'd be great.

And let's go to I think it's going to be page two, we'll just go through them one at a time.

This continues the background.

Thank you for bearing with me.

Page three, please.

The bottom of page three is the findings of fact, and it notes that the council adopts the following findings of fact as stated in the hearing examiner's final report, January 29, 2021. That's just official language saying that we agree with all the things that the hearing examiner based decisions on, so we can continue on.

There's conclusions here, and these round out all the sort of pieces to this, dealing with standard of review, affirming the hearing examiner made decisions that were supported and accurate, and also noting the council's conclusions about the appellant's arguments, that they failed to demonstrate that their assessment was fundamentally, it was done on a fundamentally wrong basis, or that it was arbitrary and capricious.

And then I think the last bit, if we just go down, and Nageen, thanks very much for doing this.

These are the decisions.

So the decision is that the final assessment role for the local improvement district With revisions, recommend the hearing examiner is approved.

That's just like the language you did verbally.

And then it shows the council's decision on each of the appeals referenced by the hearing examiner case number.

And this goes on for a few pages because each appeal is its own unique thing.

And this written document needs to show them separately.

And that rounds it out.

There's a signature line on the last page for the council president after this.

If this should go on to council with your recommendation, there's a place for the president to sign that after council's final action on it.

Now, Eric, help me out here.

This, or Nagin, this draft, well, we will have it in front of full council.

I don't believe, is it gonna be this Monday?

I don't believe so, no.

It's gonna be a few more weeks out.

That's right.

Yeah, a few more weeks out, that's what we decided.

Okay, that's right.

Yep.

Because we wanna give everyone an opportunity to see this.

and look at the record before it goes to full council for the final vote.

That's right.

And this, this document is an important, um, attachment to rides along with a, uh, a future final assessment role ordinance.

So that it'll manifest in that way too.

Right.

And so this is on the list here and the clerk files, those are all linked as well to the, to today's hearing.

Correct.

Yeah, there's a number of clerk files that are shown in the finding conclusion decision document.

There are no electronic links in this document that I'm showing you, but those are the same files that you're talking about.

Yeah, they correspond with what we're in our draft findings of fact.

In lawyer talk, it would have been a findings of facts and conclusions of law.

But here, it's a findings and conclusions and a decision.

So then I'll go to full counsel for a vote.

And then all my colleagues and the public will have access to this and have an option to look at it.

And like I said, if you were to print all this out, it was over 3,000 pages.

But some of us had to look at this.

So I will leave it at that.

Colleagues, please, if there's anyone who has any questions, this would be the time to ask before I move further.

of Eric and myself, mainly Eric.

Eric, you've been great.

Thank you.

You and Los.

Oh, you're welcome.

We've been working on this since 2016, so thank you very much.

Oh, you're welcome.

That opens up just a little chance for me to say that it's very much a team effort.

Nagin has been fantastic, and you know that already.

And also, the city clerk's office, because of the process and the need to keep the record straight and clear and available, they have been really, really great to work with.

I got it in.

There's my thanks, my gratitude.

OK, great.

OK, so hearing and seeing no one's raising their hand, I don't see any hands up electronically or otherwise.

OK, hearing no further questions, I move the committee recommend approval of the findings, conclusions, and decision of the city council in the matter of the final assessment rule for the LID 6751, the Waterfront Ledge, and the appeals filed and clerk files, again, 321-893 and 321-914.

Is there a second?

Second.

Okay, we have a second by the vice chair.

The motion has been moved and seconded to recommend approval of the findings, conclusions, and decision of the city council in the matter of the final assessment role for the LID 6751. Are there any more comments or further questions?

Okay, seeing none, And if there's no further discussion, will the clerk please call the roll on the recommendation to adopt the findings?

Clerk?

Council Member Juarez?

Aye.

Council Member Peterson?

Aye.

Council Member Herbold?

Yes.

Council Member Mosqueda?

Aye.

Council Member Sawant?

Yes.

Chair Juarez, that is five in favor, none opposed.

OK.

So the motion carries and the committee recommendation that the findings conclusion and decision of the city council in the matter of the final assessment role for the lid 6751 and the appeals filed in the clerk's file was approved and will be sent to the city council.

So with that, since it passed, this will go to full council, not this coming Monday, but I think we're going to kick it out a couple more Mondays as we discuss to get some more time and give our colleagues an opportunity to look at, and the public, to be able to click in and look at the different files and the findings and conclusions.

And again, a big thank you to everybody who's been working on this.

Eric, I know we've been here since a long time, so been doing this longer than my marriage, just wanna point that out.

Anyway, so with that, I think we're going to adjourn.

And now I have a quick statement to make.

So the next meeting, is scheduled for Tuesday, May 4th.

And with that, we stand adjourned.

Thank you.

Thank you all very much.

Thank you.