Pair Fight City To Build On Slope -- They Dispute Ordinance's Ability To Protect Queen Anne Lot

A Seattle couple's legal battle to build an apartment complex on a hillside could result in changes to the city's ordinance protecting steep slopes.

That, at least, is what landscape designer Randall Spaan and attorney John Groen of the California-based Pacific Legal Foundation are hoping will happen.

The two are working on separate paths toward the same end: To show that the city's regulations protecting steep, presumably unstable hillsides can actually endanger them.

The Pangs have filed a lawsuit in King County Superior Court seeking a city permit to build their apartment complex or damages if the city turns them down.

"Our contentions really undercut the whole purpose of the ordinance," said Groen, the attorney for a couple denied a building permit for their proposed Queen Anne development. "What we have here is an absurd regulation."

As evidence, both men point to the piece of hillside on Queen Anne owned by Seattle engineer Henry Pang and his wife, Mathilda. They purchased the 85-foot-by-100-foot lot in a city surplus land sale in October 1990.

The Pangs were denied an exemption to build a 32-unit residential and hotel complex on the property, at 1208 Aurora Ave. N., even though soils experts testified that well-managed development on the Pangs' lot would make it more, not less, stable, according to a brief filed in King County Superior Court.

City officials have seen things differently over the past four

years.

For steep slopes, the city's Environmentally Critical Areas (ECA) code says a developer may build on just 30 percent of the steep slope portion of his property. The other 70 percent must be left in its natural state to act as a buffer against soil erosion.

The Pangs' proposed building would have taken up far more space, so in applying for a building permit, they sought an exemption from the 30-percent rule.

The Department of Construction and Land Use (DCLU) denied their request, and a Seattle hearing examiner upheld that decision.

This month, a King County Superior Court judge will review the Pangs' case and determine whether the hearing examiner's written opinion justifies his ruling.

DCLU director Rick Krochalis said the steep slopes restrictions are "the most difficult area" of the ECA code and that officials try to respect property rights and public safety.

"There are citizens on one side saying it needs to be more strict," Krochalis said. "Developers want more leeway.

"The (landscape) professionals think they can engineer around anything," he added, but making permit decisions is not that simple.

In order to legally deny a building permit for a steep slope area, Groen says, the city has to show that development would have an adverse impact on the property - that it would cause erosion or silt runoff.

He believes the city can't do this in the Pang case. If the judge agrees, the Pangs could get their building permit.

And, "as a practical matter, we think the city would have to stop enforcing the regulations" as written, said Spaan, who has been waging his own battle against the steep slopes regulations.

He claims city officials developed the critical areas code so they could preserve green space in the city without paying for it, which would amount to an unconstitutional taking of property.

And he argues - with support from several local landscape engineering experts he contacted - that the 30-percent rule is faulty.

As geotechnical engineer, Enayat Aziz, of Aziz Engineering Northwest Inc., put it in a June 19 letter to the city: "This limitation often works against efforts to ensure stable slopes."

It is unclear what direction the city will take if the judge throws out the hearing examiner's ruling next month, said Assistant City Attorney Judith Barbour, who is working on the Pang case.

The city could offer to settle the case out of court or take it to trial in the spring.

Meanwhile, the Pangs have been making $2,246 payments to the city each month on their $141,000 Queen Anne property, although it remains untouched.

Henry Pang said the city could have prevented a lot of hassle. If officials wanted to protect the property, which it owned in the first place, "Then why did they sell it?"

At the time of the surplus sale, no one in city government had indicated interest in taking control of it, said Mary Pearson, the property manager for the Department of Administrative Services. That department keeps track of surplus city property and issues notices of such property. In addition, Pearson said, the land didn't meet guidelines for the city's open space program.