The Missing Story on the Missing Link: A Legal Analysis of the Burke-Gilman Trail Extension

Nearly 120 years ago, Judge Thomas Burke and entrepreneur Daniel Gilman hatched an ambitious plan for a Seattle-based railroad. In addition to linking up to a transcontinental terminus, a goal of the aspiring rail magnates was sending trains to the town of Ballard and its water-based industries along Salmon Bay. The eventual railroad carried timber, fuel, and passengers to and from the fledgling town.

Today, three miles of the original Salmon Bay spur still serves businesses with needed rail infrastructure. But as for the rest of the former Seattle, Lake Shore and Eastern Railway, most of the rails and spikes have been replaced by blacktop and asphalt. And the roaring steam engines that once pulled cars from the ship canal to Snoqualmie have given way to pedestrians, bicycles, and in-line skates.

It seems fitting then, that where the rails meet the trails near Salmon Bay in Seattle’s Ballard neighborhood, a twenty-first century controversy has ensued. A push to extend the Burke-Gilman multi-use trail through a largely industrial segment of Ballard has resulted in dispute, appeal, and now a legal challenge in King County Superior Court.

The Initial Dispute

Where the popular Burke-Gilman mixed-use trail ends at 11th Avenue Northwest in Ballard, bikers and pedestrians are forced to navigate a diaspora of neighborhood streets and shoulders—some at awkward and dangerous traffic angles—in order to continue westward toward Shilshole Bay. In 2001, the Seattle City Council sought to rectify this problem. The council directed the Seattle Department of Transportation (SDOT) to work with business and property owners as well as local trail advocates to extend the Burke-Gilman from its current terminus all the way to the Hiram M. Chittenden locks. By 2003, three potential routes had been reviewed, with one route established by the council as “preferred.”

But the chosen route was not preferred by everyone. Neighborhood businesses expressed fears throughout the design process that routing bicycles along an industrial waterfront was a recipe for danger. They argued their point at numerous public and private meetings as SDOT’s review of the proposal continued.

By last fall, after years of regulatory review, SDOT was ready to make a decision. On November 26, 2008, the department issued a determination of non-significance for the project, asserting that the project would not adversely impact its surrounding environment. Ballard businesses, believing that SDOT had erred in its conclusion, appealed the decision to the city hearing examiner.

The Appeal

Salmon Bay Sand and Gravel, Ballard Oil Company, the Seattle Marine Business Coalition, the North Seattle Industrial Association, and the Ballard Interbay Northend Manufacturing & Industrial Center (BINMIC) joined together to file a formal appeal of the city’s decision. The appeal played out over five long days of testimony from experts on traffic, safety and the environment. At issue was whether the project truly complied with Washington’s State Environmental Policy Act (SEPA). SDOT claimed that the project fully complied. The Ballard businesses claimed it did not.

The Legal Issues

A standard SEPA review process begins with a 10-page questionnaire known as a SEPA environmental checklist. The questions on the checklist provide a measure of a proposed project’s effects on its surrounding environment. Importantly, this includes a project’s potential traffic and safety impacts, issues on which the appeal was concentrated.

The businesses criticized SDOT’s environmental checklist for failing to review alternative trail routes, routes that would have channeled bikers farther from the businesses' properties. SDOT countered that such a review was unnecessary, arguing that an alternative review is only required when a project will have adverse environmental impacts. Since the department did not identify adverse impacts along the preferred route, it did not conduct an alternatives analysis. The businesses contended that this was a circular interpretation of SEPA, but the hearing examiner agreed with SDOT. Holding that an alternatives analysis falls outside the scope of an environmental checklist determination, she concluded that such an analysis also fell outside the scope of the appeal.

Refocusing on the preferred route, the businesses complained that the segment from 17th Avenue to Mount Vernon Place along Shilshole Avenue was not discussed in the environmental checklist. SDOT admitted that it had not included that segment, partly because the segment is contained within existing public right-of-way and would generally not be subject to SEPA review. The businesses argued that SEPA prevents such “piecemealing” and moved to reverse the project’s approval based on this lack of a comprehensive environmental review.

The issue is a novel one under SEPA: Must an agency review every segment of a proposed project and include its findings in its environmental checklist? The hearing examiner sided with SDOT, but did not directly address the question. Rather, she rejected the businesses’ argument because it was brought up for the first time at the appeal. Since neither interpretation was directly considered at the hearing, both are likely to rise again in King County Superior Court.

The safety aspects of the trail extension were also addressed during the appeal. The businesses sought to demonstrate that a bicycle trail in an industrial neighborhood would result in accidents, threatening their ability to obtain liability insurance in the future. In addition, the businesses argued that the trail would force them to inefficiently alter their current operations, costing money and threatening their economic viability. And the businesses repeatedly emphasized that the environmental checklist did not contain enough written documentation addressing such safety hazards.

SDOT responded that it had considered safety aspects in completing its environmental checklist, but did not explicitly document them in the checklist. This was another issue that permeated the case: Must a reviewing agency actually publish all of its internal considerations in its environmental checklist? The examiner said that it does not, holding that “nothing in SEPA requires that an agency's environmental review be completely contained within” the environmental checklist. Thus, the examiner held that SDOT met its SEPA requirements simply by considering safety aspects of the project even without providing corresponding documentation in the environmental checklist. The businesses would have had to show that the department did not consider safety aspects, a burden they did not meet. In addition, the examiner held that businesses' fears about negative economic impacts of the trail fell outside the scope of SEPA.

Finally, the businesses argued that extending the trail along the Ballard waterfront would be inconsistent with the city’s comprehensive plan. In particular, the Ballard Interbay Northend Manufacturing and Industrial Center neighborhood plan, approved by city council in 1999, directs the city to “make all efforts to locate future bicycle and pedestrian trails away from manufacturing and industrial uses.” While the city’s comprehensive plan aims to provide bicycle opportunities for neighborhood workers, it also stipulates that “bicycle commuter trails should be located away from the industrial area.”

SDOT judged these goals and policies as internally inconsistent, adding that the comprehensive plan actually includes the trail extension as part of its urban trails network. In addition, SDOT argued, and the hearing examiner agreed, that including detailed analysis of a comprehensive plan’s goals and policies in an environmental checklist is not required by SEPA.  

The businesses offered other challenges to the proposal including loss of parking, lack of emergency service access, traffic congestion and possible violations of the Shoreline Management Act. None of these objections were accepted by the hearing examiner.

In the end, the examiner gave legally required deference to SDOT, reasoning that the agency’s experience in traffic and safety mitigation was enough to allay concerns over future accidents in the corridor. She acknowledged the deeply held concerns about the trail’s placement in an industrial sector, but reasoned that “the wisdom of the proposal” is not an issue on which hearing examiners are allowed to pass judgment.

The Legal Challenge

Under the Land Use Petition Act, the businesses had until July 15 to appeal the hearing examiner’s decision to King County Superior Court. The businesses filed their 22-page petition just before the deadline, setting up a February 22, 2010 court date with SDOT and the Cascade Bicycle Club.

The businesses’ petition focuses on the same arguments brought up at the appeal, namely the review of alternative routes, additional safety review and inconsistency with the city’s comprehensive plan. In addition to the petition, the businesses will be required to submit a trial brief by January 4, 2010, followed by a response from SDOT and the bicycle club. Land use experts estimate that 80 percent of hearing examiner decisions are upheld by reviewing courts.

As the trial date approaches, the competing parties and their allies will continue to question the process that has brought the expansion to this point. The Cascade Bicycle Club has started a petition asking the businesses to drop their complaint and allow trail construction to go forward. The Ballard Chamber of Commerce has released a statement on its decision to support the businesses in their appeal.

For opponents of the project, the question is whether water-dependent businesses in a city with a development plan calling for their protection should be subject to a recreational bike trail along their property lines. For project supporters, the question is whether a small handful of businesses should be able to thwart bicycle access to paved public right-of-way. Hopefully these questions will be addressed by the court and a satisfactory judgment reached.