Can the county be held accountable for its growth decisions? No, came the answer last week from the county's lawyers. In a legal brief filed by King County prosecuting attorney Norm Maleng, the county declared that its traffic-forecasting methods, which are used to determine approval or rejection of new housing developments, are insulated from challenge. And if those forecasting methods are biased in favor of developers—as one traffic expert and several Eastside activists allege . . . ? Well, tough.
The brief from Maleng's office was the county's final jab in a high-stakes, eight-month battle that threatens the foundation of King County's growth approval process. (See "Stacking the deck . . ." 7/30/98 and "The county's fig leaf" 8/6/98, SW.) If the county's forecasting methods are determined to be unfair, many already approved projects could face renewed challenge. In a case being closely watched by both developers and slow-growth activists, Scott Hamilton, a resident of the Sammamish Plateau, has appealed the county's permit of a large new development near his home, called the Greens at Beaver Crest. The Greens has received what's called a "concurrency certificate," the government's seal of approval that the project, and the cars it will bring, will not cause traffic to exceed certain county standards.
The concurrency test is performed using a highly complex computer model, which estimates the number of car trips that will be generated by each new development, what routes those trips will follow, and when. This summer, a Bellevue traffic engineer named Joe Savage did a detailed analysis of the test run on the Greens and found it to be full of "errors." Savage, who has worked in the past for developers, contends that the model was not updated adequately and that its forecasting techniques serve to lowball the traffic impact of new developments. The county argues that the "errors" found by Savage simply represent "differences in professional judgment."
The Greens case is being heard by a county hearing examiner, Stafford Smith, who freely concedes that he is unsure what the scope of his ruling can or will be. Last week, on the final day for submitting testimony in the case, the county's attorneys made their view known. "The Hearing Examiner does not have jurisdiction to review the County's computer model," declared a senior deputy prosecuting attorney in Norm Maleng's office, writing on behalf of the county Department of Transportation.
The attorney contends that Hearing Examiner Smith is limited to ruling on matters that have been specifically assigned to him by the County Council—and the worthiness of DOT's computer model is not among those issues. Since the county has for years based its traffic standards on the model, "the County Council has accepted the model as valid," the filing declares, "and the Hearing Examiner is bound by the Council's decision."
Indeed, as the filing points out, the County Council has not specified any grounds on which development opponents can take issue with concurrency permits. By contrast, the county code lays out a half-dozen reasons that developers can use to appeal a concurrency failure. The code, one of Maleng's attorney's writes, "focuses mainly on applicant [i.e., developer] appeals." The county's hearing system does allow citizens like Hamilton to oppose new developments on environmental and other grounds; the Greens case will determine if the traffic concurrency test itself is open to challenge. Maleng argues that even if the hearing examiner did have the authority to rule on the county's traffic model, he could only find in Hamilton's favor if there were a genuine "technical error" on the part of the DOT, or if the department acted in an "arbitrary or capricious" manner. But Hamilton and Savage "are challenging engineering judgment calls," he says. Of course, these "judgment calls" are precisely where a bias can creep in.
Finally, Maleng argues that, whatever Smith decides about the county's computer model, he can't deny the concurrency certificate for Greens. After all, the project might well have passed anyway, regardless of any help from the model. "It would be manifestly unjust to deny a concurrency certificate to a development that has not been proven to violate the [county's traffic] standard," the filing states.
Interviewed by phone just two days after the submission from Maleng, Hearing Examiner Smith said he had not yet had a chance to read the document. But he notes that "I'm not obligated to follow the advice of the prosecuting attorney" in a case such as this. "He's just another attorney as far as I'm concerned."
Smith's decision is expected in a few weeks. With a battalion of developers' attorneys breathing down the county's neck, ready to cry "unconstitutional taking," it is hard to imagine that the outcome of the Greens case will actually have far-reaching consequences. A more promising opportunity for change may be at public hearings later this month, when the King County Council begins considering changes to some of the most egregiously lax parts of its concurrency test.