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WA Court of Appeals hears arguments in Missing Link case

The legal fight between the City of Seattle and the coalition of Ballard businesses fighting the completion of the Burke Gilman trail’s Missing Link on Shilshole Ave NW moved ahead Friday morning as oral arguments were heard in the Washington Division I Court of Appeals. This marks the latest legal step in a process that has been going on for over eleven years as the legal grounds that the “Ballard Coalition” are able to contest the validity of the City of Seattle’s process to construct the 1.4 mile missing segment become narrower and narrower.

Photo of two adults biking with a child each on the shoulder of Shilshole as heavy traffic goes by.
WIthout the Missing Link, people biking on Shilshole continue to face dangerous conditions.

Matthew Cohen, the lawyer representing the Cascade Bicycle Club in the litigation on the side of the City, told me after the hearing that he was “hopeful” that a ruling would be in their favor and that “the City and Cascade have the better of the arguments”.

There are a lot of different issues that both parties are asking the appeals court to deal with in this case. The argument Friday primarily revolved around two of them. Perhaps the biggest one is a new issue that the City has raised in this appeal: that the Missing Link should never have been subject to SEPA review at all.

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While still contending that “the FEIS adequately analyzed and disclosed the Project’s potential significant impacts”, the city cites the fact that in 2015, the City Council modified the city’s SEPA code to exempt all “addition of bicycle lanes, paths and facilities, and pedestrian walks and paths including sidewalk extensions”, including those to be constructed on private property. Previous designs for the Missing Link did include private easements, but the current design does not.

The Ballard coalition contends it is “far too late” to introduce this line of argument, a fact that Judge Stephen Dwyer, one of the judges hearing the appeal, pushed back on quite a bit, suggesting that “retroactivity” wasn’t even relevant in the case. If the project becomes exempt at any time during the process then that’s all that is relevant. But he also suggested the City had engaged in “subterfuge” by not bringing forward an argument that it was exempt under SEPA even as it moved forward with a full EIS. “You want us to take the hit for the city’s dirty deeds”, he said, suggesting that if the project was truly exempt then his hands would be tied.

The other major issue in the case is whether there has been a violation of the “appearance of fairness doctrine” when Seattle’s deputy Hearing Examiner at the time, Ryan Vancil, ruled against the Ballard Coalition in upholding the EIS while he was applying for the job of Hearing Examiner, which requires city council approval. Councilmember Rob Johnson participated in his job interview, and the Coalition notes he was “a well-known bicycle advocate”. (Many “well known bicycle advocates” don’t necessarily support the current proposed design for the Missing Link.) The Superior Court declined to take up this claim, noting that setting that precedent would “impose a presumption that would taint virtually all decision making by [the hearing examiner]”.

The Ballard Coalition also contends the City is in violation of a court order to not proceed with constructing any portion of the trail by constructing a portion on Market Street, but the City contends that the Market Street Multimodal improvements project, which rebuilt the street to include what will become the trail, has “independent utility”, which is certainly true.

There are other issues raised in the appeal on either side, and as we have seen in the past, a ruling against the City on any one of them would be enough to add additional years of delay to the project. The Ballard Coalition’s brief tells the court “this matter should be remanded to SDOT to prepare a new EIS, or in the alternative, remanded to the City for a new evidentiary hearing before a new Examiner”, which presumably would add years and set up the potential for further appeal.

For now, we wait for a ruling from the court of appeals, which has no deadline to be issued; the earliest we might expect it is probably late Spring. In the meantime, the public health hazard that is the current Missing Link continues. SDOT maintains a commitment to build the trail, but says they do not anticipate starting construction earlier than 2022.

An Abbreviated Timeline of Missing Link Litigation
2008: SDOT issued first SEPA Determination of Non-significance (DNS), Ballard coalition appeals.
2011: SDOT issued a revised DNS, also appealed.
2012: SDOT issued a third revised DNS, appealed. Seattle Hearing Examiner orders a full Environmental Impact Statement (EIS)
2017: SDOT issues full EIS, Ballard coalition appeals it.
2018: Seattle Hearing Examiner rules EIS adequate; Ballard Coalition appeals ruling to King County Superior Court, which rules that the EIS is almost entirely adequate but does not fully account for certain economic impacts.
2019: Both the Ballard Coalition and the City file an appeal in the Washington Court of Appeals. The City issues an addendum to the EIS which includes the requested economic analysis even as the City appeals that ruling.


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9 responses to “WA Court of Appeals hears arguments in Missing Link case”

  1. Art Valla

    Two issues keep driving the delay in finishing this trail.

    1. What is the safest route. Given the high volume of commercial traffic on Shilshole Ave, the existence of the rail-road right-of-way and tracks, and nature of the use (families, including young children walking and bicycling), it would seem that other routes would be better, even if a bit longer.

    2. Adding the bicycle trail and a vehicle separation barrier will take up large amounts of parking and greatly impact the economic viability of many adjacent commercial businesses. The economic impact will be felt far from the immediate vicinity of the trail. Again, other routes would be better.

    Cascade Bicycle Club seems obsessed with this route and is unwilling to consider alternatives.

    Alternative routes will have a substantial impact on the adjacent residential homes as parking will be displaced and many of those homes do not have off-street parking.

    I am not sure of the answer to these problems, but alternative solutions should be found, irregardless of hurting the feelings of Cascade Bicycle Club.

    1. asdf2

      Any other route would require more street crossings, plus taking a lane of traffic on at least one block of Market St. east of 24th.

      Also, at this point, changing the route sets a precedent that anyone with deep enough pockets can force the city to do whatever they want by going to court and filing frivolous lawsuit after frivolous lawsuit.

      How are we going to get a single bike lane built anywhere in this city if a single business who doesn’t like it can file lawsuit after lawsuit until the city is forced to give up to avoid spending its entire bike budget on lawyer fees?

      1. Art Valla

        asdf2 – Since when has Seattle ever NOT bowed down to people with deep pockets? Remember when they were going to have this really big pedestrian mall by the monorail terminal – much bigger than Westlake, and the Nordstrom family threw a fit? Or when the Nordstrom family wanted the city to build them a huge parking garage? Filing a series of frivolous lawsuits is the way things are done in Seattle.

        Let me give you another example. In the late 1930’s they built the Aurora Bridge (Highway 99) over the ship canal. And there it sat, unused for more than 2 years. Seems the Blethen family, owners of the Seattle Times, threw a fit about extending the highway from Greenlake to the bridge because they felt the Phinney family property (Woodland Park) was sacred. They file lawsuit after lawsuit to stop the highway. If Japan had not bombed Pearl Harbor in Dec. 1941, the bridge would still be the end of the highway.

    2. Jon

      Free parking. Just admit its all about the free parking, point number 2. The obstructionists don’t care about what is the safest route, that is evident by the lawsuit history and their very late foray into alternative routes that are not safer. But free parking, entitlements for out-of-town single-occupancy drivers, that is what this is all about.

      I started working at Ballard Oil in 1979, now I bike or run that route most days and it sickens me how the free parking entitled mentality holds this important project up. Arguing its anything other than free parking is a farce. Entitled brats want their free parking and have blood on their hands.

      1. Art Valla

        Jon, just because YOU can ride doesn’t mean everybody else can. It isn’t about “free” parking. It is about maintaining the economic viability of adjacent businesses.

        You are not going to ride your bicycle to get a weeks worth of groceries for your family. You are not going to ride your bicycle to pick up new furniture. When you are old and frail (we will all get there) you are not going to ride your bicycle at all.

        These adjacent businesses depend on the available parking and their economic activity PAYS for this parking availability through sales & B&O & property taxes to the city.

        Think of it this way. If those businesses had never been there, there wouldn’t be a street for your bicycle. If those taxes were not paid, there would never be a bicycle trail – at all.

        Now, Ballard is one of the most poorly laid out sections of Seattle. In honest truth – it just sort of happened that way. Settlers that arrived in Ballard before it became part of Seattle were, for the most part, squatters. They just came in, found an open area, put a fence around it and called it home. Sometime later there was adjustment to straighten streets, but for the most part they were just happenstance. When the ship canal and locks were put in, marine businesses just came and set up shop along the banks helter-skelter. There was no “plan.” There still isn’t. Trying to “fix” that so that we can have a bike trail is sort of bucking the tide. In reality, it would be easier (and better) to take out a row of residential homes north a few blocks. Connect to it up 14th Ave NW. (where the old trolley tracks are) Cut west where it makes sense, say 58th or 59th. Maybe an overpass over 15th Ave NW. Reconnect by the locks on 30th Ave NW.

      2. Long time Ballard Homeowner

        Tired arguments that we hear every time this comes up.

        Cars have better alternatives and there are plenty of parking lots for every vehicle. I know because I pay for parking when I can’t ride my bike. For most trips my bike is the best alternative. Yes, I really do ride my bike to shops in Ballard. FYI, Shilshole is the safest route from Frelard to the locks.

        I’m tired of people like you who don’t want to share public property with folks who live and pay taxes here. We can have a MULTI USE trail AND the road. It’s doesn’t need to be one or the other.

        That area is a disaster and needs to be improved for EVERYONE. Anyone can see that. Look at the haphazard parking and barrels.

      3. asdf2

        Shilshole does not even have a grocery store. It has a gym, but you’re not carrying heavy equipment to work out at the gym. For buying furniture, you don’t even need a car at all; you select what you want and the store delivers it. I bought my mattress by walking to the store on foot and absolutely did not carry the mattress back home.

        In any case, the trail plans still leave plenty of parking for actual customers. The problem isn’t lack of parking, but that it’s a giant free for all with no rules, so people who are not customers park there all day and hog the spaces.

  2. Erik

    Perhaps by the time the Missing Link is completed, I’ll be able to ride it on my hover-bike.

  3. Art Valla

    Long time Ballard Homeowner – You are correct. That area is a disaster and needs to be improved for EVERYONE. Anyone can see that.

    But who is going to pay for it? And how do we compensate the businesses during the construction mess? Believe me, your homeowner taxes are tiny compared to the real cost of doing this.

    It can be done, just like the improvements to Alaskan Way and the waterfront. Alaskan Way has been a disaster since the Viaduct was built in the 1950’s. But it took a massive earthquake to shake the money tree and fix it.

    Where is the “emergency” for fixing Ballard? And where is the cost / benefit study that would say improving this area is an urgent need? The actual numbers of people that ride their bikes here are pretty small and those numbers will not go up substantially even if it was a perfect fix. Yes, I would like to see Ballard fixed. I ride that trail all the time. But even I can see that there are many, many more urgent needs for the money than an improved trail.

    So, the best we can hope for is a situation where bicycles and pedestrians are mixed in with a potholed street, commercial 18 wheel trucks backing into loading docks, and meandering railroad tracks. It isn’t a good mix. And if some biker gets squished, the lawsuits will lead to either a closure of commercial activity or a closure of the “new” bike trail. Who do you think will win when the city does its budget analysis? You and your tiny homeowner taxes or the commercial businesses?

    I know what you want. I want the same thing. But then there is reality. I used to own a computer repair business – one of those evil corporations that some city council people whine about. My taxes far exceeded my payroll. And yea, my homeowner property taxes have gone up over 200% in recent years, but they are nowhere close to my business taxes.

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