The city of Burien joined the Downtown Emergency Service Center (DESC) on Tuesday (Jan. 25, 2022) in asking a judge to toss a lawsuit against the city that aims to stop the DESC’s permanent supportive housing project planned for downtown Burien.
Also on Tuesday, the plaintiffs in that lawsuit filed a response to the DESC’s request to intervene as a defendant in the case, arguing that the court’s ruling will not impair or impede the DESC’s interests because the DESC “does not have a direct legal interest in the outcome of this matter.
“Either the Affordable Housing Demonstration Program will be permitted to include supportive housing projects – like the DESC Project – or it will not,” the plaintiffs wrote in their response. “While the Court’s decision will have an ancillary interest on the DESC Project, there is no direct legal interest as the DESC does not have a right to be included in the Affordable Housing Demonstration Program.”
The plaintiffs also argue that the city “will adequately represent any and all potential interests that the DESC may claim” and “will make the same arguments that the DESC will make.”
The DESC filed its motion to intervene in the case last week (Jan. 18, 2022). A hearing on that motion, with no oral argument, is set for Monday (Jan. 31, 2022) in King County Superior Court.
On Wednesday morning, the city filed its own response to the DESC’s request to intervene, stating that it has no objection to the motion.
The lawsuit’s lead plaintiff is Burien resident and former city council candidate John White, followed by Tortas Locas restaurant owner Jose Luis Rangel Olivera, Burien Towing owner Lynette Storer and commercial property owner David Burke. Burke’s property and Olivera and Storer’s businesses are all located within 1,000 feet of the housing project’s planned site at 801 SW 150th Street in downtown Burien.
The plaintiffs, who argue that the DESC’s permanent supportive housing project “will not provide affordable housing,” are seeking an order prohibiting the city from including the project in the city’s Affordable Housing Demonstration Program, which provides flexibility in certain development regulations in exchange for affordable housing.
“Plaintiffs and the concerned citizens of Burien wish to stop the development of projects that do not meet the standards of the Affordable Housing Program (sic) and that fail to provide affordable housing in the City of Burien,” the plaintiffs wrote in their Dec. 23 complaint.
In its motion to intervene, the DESC argues that if the court ultimately rules in favor of the plaintiffs, the Seattle-based nonprofit would have to redesign its project, adding cost and delaying construction.
“Any delay in completing a project means individuals will be stuck in shelters or be left on the street during the delay,” the DESC wrote in its motion. “And any increase in cost ultimately limits how much affordable housing can be provided. DESC’s ability to serve its clients will thus be directly impaired by any relief Plaintiffs seek.”
The DESC also argues that it has a distinct voice and perspective that cannot be adequately represented by the city.
“… only DESC has an actual project that is threatened by this lawsuit,” the nonprofit wrote in its motion, adding that “… only DESC knows about the extensive public outreach it conducted beyond what was required by the City, including DESC’s outreach to each of the Plaintiffs.”
City’s Response to Lawsuit
In its Tuesday response, the city asks that the lawsuit be dismissed with prejudice, arguing in part that the plaintiffs fail to “state a claim upon which relief may be granted,” “one or more of the plaintiffs may lack standing,” the plaintiffs fail to “allege sufficient injury to establish standing,” “the court lacks jurisdiction over some or all of the plaintiffs’ claims” and that the “plaintiffs have failed to exhaust administrative and/or judicial remedies.
“The Burien City Council’s vote approving DESC Burien’s project as part of the Affordable Housing Demonstration Program, and the City of Burien’s approval of final administrative design review for DESC’s Burien project were separate final land use decisions that are only appealable under the Land Use Petition Act (LUPA),” the city wrote in its response, arguing that the plaintiffs’ claims are barred by the LUPA statute of limitations, which requires that appeals be filed within 21 days of a land-use decision.
In a letter to the editor published on The B-Town Blog on Tuesday, plaintiff John White argued that the plaintiffs could not appeal the city’s Dec. 16 administrative design review decision because they are not parties of record.
“Our only route forward was to file this lawsuit because the City of Burien refused to address our concerns,” White wrote in his letter. “The lawsuit was properly filed and the Court’s ultimate decision will demonstrate that fact.”
According to LUPA, RCW 36.70C.60, standing to appeal a land-use decision is limited to the project applicant, the owner of the property and others who are “aggrieved or adversely affected” by the decision.
In its response, the city also addresses the plaintiffs’ central claim that the DESC’s permanent supportive housing project “will not provide affordable housing,” rendering it “ineligible for accommodations and exceptions” under the city’s Affordable Housing Demonstration Program.
“Burien admits that the DESC Burien project will provide affordable housing to tenants that earn less than 30% of the King County area median income,” the city wrote, “and that this meets the income criteria requirements in BMC 19.18.050(3).”
Nicholas Johnson (he/him) is an award-winning writer, editor and photographer who grew up in Boulevard Park, graduated from Highline High School and studied journalism at Western Washington University. Send news tips, story ideas and positive vibes to [email protected].