Rulings

Growth Management Hearings Board Ruling

September 9th, 2026

Key Holdings from GMHB finding the EIS inadequate, including its consideration of tree canopy, stormwater, and fish habitat.

  • “[T]he FEIS failed to implement a comprehensive approach to managing fish habitat (EN-9). Specifically, the City’s incorrect use of the maximum likely development did not represent a comprehensive approach to protecting fish streams from runoff generated by impervious surfaces. The FEIS acknowledges impervious-surface runoff as a significant environmental risk, but it failed to grapple with the scope of the new development capacity implemented by the Update.” FDO p. 88

  • “The Board finds the FEIS has met the rule of reason with regards to stormwater—subject to the above-noted caveat regarding the erroneous use of maximum likely development instead of maximum possible development.” FDO p. 65. In other words, stormwater must account for the maximum possible development.

  • “The Board finds that the FEIS has met the rule of reason with regards to tree canopy, subject, once again, to the caveat that the entire FEIS is inadequate due to its consideration of maximum likely development instead of maximum possible development.” FDO 67. In other words, the tree canopy analysis is inadequate as presented.

  • “[T]he adoption of Ordinances 127375 and 127376 did not comply with the requirements of the State Environmental Policy Act (SEPA), because the FEIS was predicated on an erroneous “maximum likely development” assumption instead of a “maximum possible development” assumption. This error also created an inconsistency with two of King County’s Countywide Planning Policies, EN-9 and EN-11.” FDO pp. 1-2

  • “The Board concludes that the City has not met the requirement to analyze the probable, significant impacts of increasing the City’s development capacity by 162,847 potential new units above the existing baseline development capacity of 168,086 potential new units. For this reason, the Board holds the EIS to be inadequate as a matter of law.” FDO p. 59

  • “SEPA procedures require substantial time to accommodate not only the necessary review by subject-matter experts but also time for consideration by City decision-makers as well as the required public participation process. Even more time might be required if the City were to determine, during its SEPA review, that the underlying ordinances require amendment to avoid or mitigate environmental impacts which had hitherto passed unrecognized. Accordingly, the Board will afford the City a full year to bring itself into compliance. The City may request additional time, if needed, by motion, with Joint Petitioners having an opportunity to respond.” FDO pp, 95. In this holding the Board makes it clear that it anticipates that it will take time to fix the inadequacies, including those pertaining to tree canopy, stormwater, and fish habitat. The time that the City needs to get this analysis corrected is not Petitioners’ fault, it stems from the City’s incorrect analysis when it acted. Petitioners are willing to work with the City as it corrects this error to avoid further delay in the future.

  • “The FEIS analyzed the environmental impacts of 120,000 new units of housing (the total number of new units likely to be developed). The FEIS did not analyze the environmental impacts of 330,933 new units of housing (the maximum possible number of units that could lawfully be developed.” FDO 44-45.

  • “SEPA offers various procedures that could potentially suffice [for correcting the deficient EIS]. The Board observes that in Davidson Serles, for example, the non-compliant city issued a supplemental EIS, the preparation of which incidentally led the City to amend some parts of the original, underlying planning action.” FDO p. 95.

  • "Ordinarily, a challenge to the adequacy of a FEIS related to a periodic update would
    first go before the Seattle Hearing Examiner, whose decision would then become part of the record before this Board. In this case, however, the Hearing Examiner determined that he lacked jurisdiction to consider the challenge. He was reversed on that point by the Court of Appeals on June 1, 2026, and the matter was remanded to the Hearing Examiner… The Board would have preferred to stay this proceeding pending the Hearing
    Examiner’s decision regarding the FEIS… Accordingly, the Board must rule on the adequacy of the FEIS based on the record before it." FDO p. 26-27

Court of Appeals Ruling

June 1st 2026

Washington State Court of Appeals, Division I rules in favor of the Orca Appeal

  • “We reverse and remand to the superior court for issuance of a writ of review consistent with this opinion.” COA Opinion

  • “As amici Environmental Advocates and Experts succinctly suggest, “the obvious purpose of allowing pre-decisional SEPA appeals when the agency itself is the project proponent is to ensure that the ultimate decisionmaker (here, the Seattle City Council) has the benefit of a decision of a neutral adjudicator before it decides how to proceed.”” Footnote 2, COA Opinion

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