City Loses Surface Transportation Board Petition

On March 28th, the Federal Surface Transportation Board denied the City of Sammamish’s petition to issue a declaratory order that the construction and use of a railbanked corridor for interim trail use by King County, Wash. (County), “is not exempt from the City’s local land use and development regulations,” and that neither 49 U.S.C. § 10501(b), nor the National Trails System Act (Trails Act), 16 U.S.C. § 1247(d), authorizes the County to override these local public health and safety regulations in order to operate the trail. (Pet. 1.)

However, while the District Court included some discussion of the County’s preemption arguments and preemption law, it ultimately granted the preliminary injunction on grounds that the City lacked a sufficient property interest under state law to impose any regulation on the Intersections, and expressly declined to reach the federal preemption issue.

Given that the dispute between the parties rests on a matter of state property law and may ultimately be resolved by the courts on state law grounds, the request for a declaratory order was denied. The detailed document can be found here

ELST Permitting & Stop Sign Updates

Lots of permitting and stop sign issues to catchup with.

First of all, King County has decided to appeal the denial of the Shoreline Substantial Development Permit (SSDP) for the last 3.5 miles of the East Lake Sammamish Trail to the Shoreline Hearings Board.

And apparently the homeowners’ group, Sammamish Homeowners (SHO) will be appealing as well.
Per their organization’s web page, their appeal asserts that there are insufficient conditions protecting the environment within the Hearing Examiner’s decision. The following are the specific conditions requested in their 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.

This ignores the fact that the trail is being moved because it is near wetlands.

Three homeowners who live in Mint Grove will be the appellants as in the past the County has claimed that SHO did not have standing because it owns no property along the trail.

SHO will is looking for exhibits to provide to the SHB showing where and how the relocation of the centerline of the proposed trail will damage the environment.

The initial conference call for this appeal is March 9th and King County believes the hearing will likely go before the board between late spring to early summer.

In the meantime, the hearing related to the Shoreline Substantial Development Permit (SSDP) for the Inglewood Hill Parking Lot was held 1/24/18 and was finished in one day.

The audio of the hearing is on the city web page in two parts. The first half is here and the second half is here.

The hearing examiner released his decision on February 5, 2018.

The decision can be found here.

The Hearing Examiner approved the parking lot minus the restroom, picnic shelter and kiosk as he felt there wasn’t sufficient detail. The County will have to apply again for the kiosk, picnic shelter, and restroom to be built at that site. It’s not clear yet if they will provide the detail and reapply or if they will appeal this to the Shoreline Hearing Board as they have for the 3.5 mile trail segment. The City actually felt they had sufficient detail since facilities like this are usually prefabricated and fairly standard. However, at the hearing, the Hearing Examiner quoted another decision that noted for this type of permit there needs to be elevation to scale and dimensions of the structures present and to be built.

At the hearing, King County did not challenge conditions 1,4,7, & 8 that the city stipulated. Below are the Hearing Examiner’s decision on the city’s required conditions that King County challenged:

Regarding Condition #2 requiring an updated survey conducted no later than one year prior to submittal or resubmittal of any construction permit showing all dimensions and locations of all existing and proposed structures and improvements. The Hearing Examiner noted that updated survey does not mean a complete comprehensive survey as King County stated but updating it would be acceptable.

Regarding Condition #3 Identifying all the structures not owned by the county, the Hearing Examiner once again felt this was related to the property rights dispute and not part of this permit.

Regarding Condition #5 An updated arborist report and tree survey required at the submittal of the construction permit, it was changed to “if more than 2 years elapse between July 7, 2017 (date of the current report), an updated arborist report and tree inventory will be required.”

Regarding Condition #6 stating the trail shall be narrowed as necessary to fully comply with tree protection in accordance with tree protection barrier and grading/grubbing limit restrictions in 21A.37.270(5), the city proposed eliminating the trail width part. The Hearing Examiner noted that alternative measures under SMC 21A.37.270(7) would preserve more trees and would be most appropriate agreeing with King County.

Regarding Condition #9 stating the permit was good for 5 years, both the City and Hearing Examiner agreed with the County’s request to extend to 7 years.

Finally, you may remember the City of Sammamish appealed a decision on the direction of the stop signs at two locations on the South Sammamish segment near Alexanders and across from the 7-11. On Aug. 8th, the federal court decision agreed with King County. The City felt “it may place ominous limits on the city’s ability to protect public safety, preserve the environment, and properly manage its roads” and the City filed an appeal with the Ninth Circuit Court of Appeals.

While the appeal is pending in the Ninth Circuit, the City has also asked the United States District Court in Seattle to reconsider the preliminary injunction it ordered, which forbids the city from regulating two public street intersections where they cross the trail, or taking any other regulatory actions that would impede or delay King County’s construction of the trail. Apparently this reconsideration was denied as the County has changed the direction of the stop signs so that the cars have to stop for trail users. In December, the city decided to hire a Washington DC attorney and approach the Surface Transportation Board regarding this issue as well.

The City of Sammamish has requested to be able to have veto-authority over King County in decisions on the trail right of way. That would require a change to one of the fundamental tenets of federal railbanking rules that have enabled King County’s extensive network of trails on railbanked corridors, and could have impacts on trails nationally.

City’s petition to STB.

Follow-up petition as the County was one business day late with their response.

Reply to City’s petition by King County.

The petition has attracted the opposition of the national Rails to Trails Conservancy (RTC). Friends of the East Lake Sammamish Trail , Friends of the Burke Gilman Trail, and the Cascade Bicycle Club are supporting the RTC’s efforts to fight this petition.

Reply to the City’s petition by RTC.

Stay tuned….