An Update on Sound Transit Appeal to Hearing Examiner

May 3, 2021 - The Hearing Examiner issued a decision today in Sound Transit’s appeal of permit conditions that the City imposed on construction of the Mercer Island Transit Interchange (MITI). At the moment, the City continues to evaluate the decision in detail, however, the following is a summary of the three main issues appealed.

“Decision of New Curb Cut on North Mercer Way”

The Hearing Examiner ruled that the new curb cut on the north side of North Mercer Way that Sound Transit testified will be used for a bus layover should be left for the Superior Court to decide because it is part of the 2017 Settlement Agreement. He repealed the City condition denying the curb cut based on City code provisions but held that it was “subject to resolution of the implications of the Settlement Agreement by and in another forum.” This leaves the bus layover dispute for resolution in the City’s Superior Court case filed in October 2020 to enforce the Settlement Agreement terms.

“Decision on Conveyance of Property by Sound Transit to the City”

In terms of the conveyance of property by Sound Transit to the City as rights-of-way, the Hearing Examiner held that this could wait until construction of the MITI is complete. The Hearing Examiner acknowledged that the City had been consistent in its interpretation of the City’s code since it began review of the MITI, but he disagreed with the City’s code interpretation that the stormwater vault used to collect and treat stormwater from public rights- of- way is a public facility requiring either the conveyance of property to the City or a conditional use permit if constructed in residential zones.

The Hearing Examiner gave Sound Transit the option of either conveying the property to the City before construction or applying for a Site Development Permit for all MITI improvements that are not located in existing rights-of-way. This would include a portion of the roundabout, sidewalk, retaining walls, and the stormwater vault. Given Sound Transit’s testimony about the difficulty and restrictions on it to convey property, the Hearing Examiner left Sound Transit with four options on what to do with any property left over that is not being used for MITI improvements. The Hearing Examiner also acknowledged that Sound Transit did not disclose any of these claimed restrictions on conveyance to the City prior to the hearing.

“Decision on Operations and Maintenance Agreement”

In regard to an operations and maintenance agreement (O&M agreement), the 2017 Settlement Agreement provides that Sound Transit is solely responsible for all costs to operate the MITI improvements (stormwater vault, landscaping, irrigation, etc.). The City conditioned the permit on execution of an O&M agreement whereby Sound Transit would reimburse the City for all these operation costs. The Hearing Examiner ruled that the dispute regarding the necessity of an O&M agreement would also be resolved in Superior Court.

For more information on the Mercer Island Transit Interchange project, including a copy of the Hearing Examiner Decision, please visit Let’s Talk.