Superior Court Judge issues ruling in Aegis case

Local environmentalists are heralding a March 6 ruling in King County Superior Court as a victory for what they say is an arm of Thornton Creek.

King County Superior Court Judge John Erlick voiding a building permit for a 54-unit assisted living facility, Aegis Assisted Living of Shoreline, built near a water channel at First Avenue and NE 150th Street. The judge stopped shy of requiring the assisted living facility be torn down. Instead, he asked Shoreline’s hearing examiner to reevaluate the permit according to his ruling.

Construction is complete at the facility, the city granted a certificate of occupancy in February and the company hosted an open house on Feb. 23. The facility is awaiting a state license to operate before residents could move in.

Tim and Patty Crawford, who lead Twin Ponds Fish Friends, are neighbors of the project and contested the amended building permit issued by the city in King County Superior Court, arguing that the building was built too close to the channel that could be habitat for protected fish species.

In his March 6 ruling, Erlick said the city erred by not offering public notice and a comment period after the city hearing examiner recharacterized the water channel that runs between the building and I-5 from a stream to a drainage ditch and then granted the permit. The change allowed construction closer to the water channel than if it were classified a stream.

Erlick also ruled that the change was not supported by any findings of fact, and needed additional information. He said the hearing examiner’s decision omitted any reference on whether the channel provides critical habitat to salmonid or other protected species.

Erlick upheld the city’s buffer averaging regulation which allowed construction closer to the channel in some places as long as it’s farther away in others. However, the judge ruled that Shoreline and Aegis misapplied a provision by allowing the building to encroach in an area of greater sensitivity on the site.

In sending the case back to the city hearing examiner, Erlick said how the channel’s location is measured to determine the buffer must be explained.

Erlick said that there were too many unanswered questions to restrict the building’s use or order it torn down.

“For example, although the amended building permit was improper in respect to SEPA, the court has not found that the channel to the north is a type 2 stream or critical habitat,” Erlick said. “As a result, you have two routes, go back down (to the city) or go up (to the Court of Appeals). I ask the councils to propose alternatives of action,” he said.

Erlick designated the Crawfords’s attorney, Dave Bricklin, to write the order reflecting his oral ruling and hearing for March 20.

Erlick denied Bricklin’s request to bar residents from moving in while the issue is in court.

“He wants the city to reevaluate the building permit with the correct rules and with notice to the public,” Bricklin said. “The judge wants to try to give local government the chance to do things right.

“By following these rules, the city could reach a different conclusion, and determine that the building was built in the wrong place, and needs to be torn down,” Bricklin said.

Shoreline city attorney Ian Sievers said, “The judge felt that public notice should be repeated to allow non-parties to comment … it is unlikely that reconsideration of the (city’s ruling) would lead to additional mitigation because mitigation originally imposed for a variance is not required now.”

Aegis officials have several options, including an appeal of Erlick’s decision to the state Court of Appeals, await the hearing examiner’s reconsideration or apply for a separate Critical Area Special Use Permit that would allow the building to stand as is, which is the process used for the company’s south building.

Aegis attorney John Riper said company officials are considering the options.

“It looks like we won,” Patty Crawford said in an interview with an independent documentary film crew. “This is going to be a hard case for them to appeal.”

Brian Derdowski, a consultant with Public Interest Associates and former Metro King County Council member said he is working with the Crawford’s. “This is a victory,” Derdowski said. “The judge agrees with us, and the city will try to weasel out of this … The building should be torn down.”