East Mercer Way neighbors concerned about potential landslide hazards and other issues resulting from new home construction on their private access road have sued the city over alleged mishandling of the project.

Corey and Courteneay DuBrowa, who live in the 4600 block of East Mercer Way, filed a damages suit with the King County Superior Court on Nov. 3. Corey DuBrowa said the city’s Development Services Group (DSG) and Planning Commission “rubber stamp” projects without listening to public concern.

“I look forward to having the opportunity to demonstrate to a judge, in a fair manner which I was never given the opportunity to exercise with the city of Mercer Island itself, why the City’s actions are inconsistent with the law,” Corey DuBrowa said.

The project of concern is a Barcelo Homes “mega-spec house (more than 7,000 square feet), on steep slopes in a critical environmental area subject to erosion, some exceeding 60 percent grade,” DuBrowa said.

Construction would involve removing trees, cutting into the slope and removing over 1,600 cubic yards of soil, “at least 250 truckloads up and down a single-lane common road used by the 14 families in our neighborhood,” he said.

The private drive is nine feet wide and “not capable of handling this kind of heavy impact,” DuBrowa said, which is what initially prompted concern.

The city originally issued a determination of non-significance (DNS) after reviewing the project’s State Environmental Policy Act (SEPA) checklist. SEPA requires all governmental agencies to consider the environmental impacts of a proposal before making decisions.

The city posted a Notice of Proposed Land Use Action and invited public comment.

Many Islanders have been concerned about the loss of trees and historical homes due to new construction, especially practices of subdividing lots, short platting or infill developing that can change the character of neighborhoods.

But those looking to actually get involved in the process should do so early. Appeals of certain permit and land use decisions can only be legally accepted from parties of record: people who contacted the city in writing within two weeks of being notified. The filing fee of an appeal is $875.

DSG wants to hear from residents, which is why it posts signs and mails notices to property owners within 300 feet.

“We share the community’s desire to maintain the character of neighborhoods. We take all land use decisions seriously and will continue to provide residents with opportunities to weigh in,” said City Manager Noel Treat.

The city issued the DNS on Sept. 21 and the DuBrowas became parties of record and appealed it, an action that should prompt a review from the Planning Commission.

Then, the DuBrowas were told that their appeal would not be heard, as the DNS had been withdrawn on Oct. 12 and that the project is “categorically exempt from threshold determination and EIS requirements” under state law.

They received a letter noting that the decision to withdraw the SEPA threshold determination is not appealable, but future permits related to the subject proposal may be.

The comment and appeal process is “complex, dense and not particularly transparent,” DuBrowa said.

DuBrowa’s appeal included reports from a geotechnical analyst, arborist and construction expert, which identified material omissions, inaccuracies and deficiencies in architect’s plan for the house and its SEPA checklist.

DSG Director Scott Greenberg said that he could not comment on the specific project because of the lawsuit, but explained terminology and the appeal process.

DSG can issue three determinations after submittal of a SEPA checklist, which analyzes potential environmental impact on air, water, schools and more.

One is a determination of significance (DS), which expresses concern that a project may have a “probable significant adverse environmental impact.”

The others are a determination of non-significance or a mitigated determination of non-significance (MDNS), which are more common on Mercer Island, Greenberg said.

DuBrowa said he had no other choice but to spend his own resources to preserve warranted objections to the project, which is why he chose to file a damages suit with injunctive relief.