Morning Crank: Ruling Bolsters Housing Plan, Chides City for Failing to Do “Granular” Analysis Neighborhood Activists Demanded

1. Urbanists celebrated a ruling yesterday that could allow a long-delayed plan to increase density and fund affordable housing to move forward. The ruling by city hearing examiner Ryan Vancil, which mostly affirms that an environmental impact statement on the plan was adequate, came in response to a challenge by a group of homeowners, the Seattle Coalition for Affordability, Livability and Equity (SCALE), who have long opposed the plan. The plan, known as Mandatory Housing Affordability, would allow modest density increases in urban villages and urban centers, and would rezone six percent of the land current zoned exclusively for single-family houses—currently, two-thirds of the city’s land—to allow townhouses and small apartments. Developers who build under the new rules will have to include affordable housing in their buildings or pay into an affordable housing fund.

“This ruling is a step forward for more affordable housing in Seattle,” Durkan said in a statement. Meanwhile, Seattle for Everyone, the group that formed in 2015 to support then-mayor Ed Murray’s Housing Affordability and Livability Agenda, planned a celebration party and issued a statement, titled “Yay for MHA!” celebrating the ruling as “a win for affordable housing.”

We’ll see. Toby Thaler, the leader of the group that challenged the  Seattle Coalition for Affordability, Livability and Equity (SCALE), told the Seattle Times that he plans to keep fighting against the MHA legislation, although it was unclear in what venue (the courthouse or city council chambers) he intends to do so. (Thaler did not immediately return an email last night, but I will update this post if I hear back from him.) Meanwhile, the city will have to do more analysis of how allowing more density will impact designated city landmarks;  according to the ruling, the city failed to consider impacts on historic properties other than those on the National Register of Historic Places, which Vancil called inadequate.

“The more ‘granular’ level of analysis called for and debated at the hearing may have averted at least some of the deeply felt community concern expressed in nearly four weeks of hearing and in a hearing process that has taken the better part of a year.” — Seattle Hearing Examiner Ryan Vancil

Vancil’s ruling also chides the city for failing to include detailed, “granular” analysis of the impact the zoning changes would have on individual neighborhoods in the environmental impact statement, and suggested that including this kind of analysis could have forestalled the whole drawn-out appeal. “[I]t is certainly the case, at least in part, that the choice not to tell a more detailed story of the City’s neighborhoods contributed to why the City faced a very protracted appeal and hearing process from representatives in many of its neighborhoods,” Vancil writes. “While the level of analysis for most of the FEIS satisfies the rule of reason and requirements under SEPA, the more ‘granular’ level of analysis called for and debated at the hearing may have averted at least some of the deeply felt community concern expressed in nearly four weeks of hearing and in a hearing process that has taken the better part of a year.”

Whether you believe that a detailed neighborhood-by-neighborhood breakdown of the upzone’s impact would have made neighborhood opposition evaporate (dubious, given that challenging the EIS for a project is one of the most common obstructionist tactics in the Seattle neighborhood activist playbook), what’s undeniable is that while the upzones have been tied up in appeals, tens of millions of dollars’ worth of affordable housing—and hundreds of units of market-rate housing needed for the thousands of people moving to Seattle every year—remained unbuilt.

“Unfortunately …  this appeal has cost Seattle at least $87 million worth of affordable housing that we could have brought in during the year since the appeal was filed,” council member Rob Johnson, who has led the charge for MHA as head of the council’s land use committee, said in a statement. (Johnson asked for this analysis last month). “Had we been able to adopt MHA across the city without this delay, more neighborhoods would be receiving the investment in affordable housing they need, and more families in our city would have an affordable place to call home.”

2. On Tuesday, Queen Anne Community Council leader Marty Kaplan sent out a bombastic email blast (subject line: “Single-Family Rezone: Negotiation Rejected!”) announcing his intention to “proceed full-speed ahead in preparing and proving our case” against the city, in the ongoing battle over new rules that would make it easier for homeowners to build basement and backyard units on their property.

The “negotiation” Kaplan’s email refers to is apparently a meeting he had on Monday with council member Mike O’Brien, who led the charge to liberalize Seattle rules governing backyard and mother-in-law units, about a final environmental impact statement (FEIS) concluding that the proposal would not have a detrimental environmental impact on the city. was sufficient to allow the long-delayed rules to move forward. The new rules, which would allow homeowners to add up to one unit inside an existing house and one detached unit in the backyard, subject to existing height and lot coverage limits, would produce about 2,500 additional units of housing citywide.

“Unfortunately, I must inform you that CM O’Brien has closed the door to negotiating.,” Kaplan wrote. “He relat[ed] to me unequivocally that the EIS spoke to all his issues leaving no room to consider any compromise.  He remains firmly entrenched in every line-item of his legislation to eliminate every Seattle single-family neighborhood without considering any important neighborhood, property, infrastructure or economic differentiations.  One-size-fits-all!” 

“In addition,” Kaplan’s email continues, “he shared his confidence that every councilmember firmly supports him and his legislation.  He left no door open and even told me directly that there was no reason for us to withdraw our appeal – nothing would change!”

On Wednesday, O’Brien put up a blog post responding to Kaplan’s email. (The post appears to have since been taken down.) In the post, O’Brien wrote that during their conversation over the weekend, “I explained to Marty that while the legislation I plan to introduce was likely to reflect the Preferred Alternative in the EIS, I am open to changes to that legislation as we work through the legislative process.  Furthermore, even if I disagree with certain changes to the legislation, a majority of the Council, not me alone, make the decisions about what changes are acceptable.  …If Marty was asking me to cut a special, secret deal with him so that he would drop the lawsuit, I made it clear to him that I am completely opposed to that type of back room dealing.  … Despite what Marty claims in his email blasts, I explained the many doors that remain open throughout the upcoming process to influence the outcome of the legislation.”

The email concludes with “a quick note on the tenor of city politics that Marty is playing on in all of his communications,” which, O’Brien says, represented “our friendly conversation as a divisive fight.  Instead of communicating where we have common ground and where we differ, explaining the opportunities to influence the process and sharing my willingness to remain open to alternative approaches during the legislative process, Marty choose instead to double down on a mean-spirited and polarizing approach, representing the worst of our current tone in politics.  As a community, we must decide if we are going to let divisiveness prevail and be the new way we govern, or re-embrace what I have known my entire life in Seattle: a collaborative approach to policy making.” 

Kaplan responded more warmly to comments Mayor Jenny Durkan made about the proposal over the weekend, at a community meeting on Queen Anne. According to the  Queen Anne News, when a constituent asked what should happen with the appeal, Durkan said “she’d like to get all parties in a room to hash out a compromise” rather than moving forward with the “litigation” process. (Kaplan’s challenge is currently before the hearing examiner, but litigation is an option if the hearing examiner rejects his argument that the FEIS is inadequate). Durkan, according to the Queen Anne News, expressed concern at the meeting that loosening the rules too much could “fuel a more expensive Seattle by letting people speculate on that land.” That argument—that “developers” will snap up single-family houses and turn the land into triplexes—is belied not only by the FEIS, which concludes, again, that the changes would result in just 2,500 new units citywide, but by the economic logic of development. To wit: If you’re a developer (or, as Kaplan and the mayor suggest, a “speculator”), are you going to build a house with a basement apartment and a small backyard cottage in a single-family zone? Or a 20-unit apartment complex in a multifamily area?

Kaplan did not attend the meeting with Durkan, but says that from conversations with another community council member who was there, “the take-away was that she [opposes] what I have called a one-size-fits-all rezoning of single-family throughout the city.”

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Morning Crank: “Preparations are Underway for a Litigation Budget” on Fort Lawton

1. Elizabeth Campbell, the Magnolia neighborhood activist whose land-use appeals have helped stall the development of affordable housing at Fort Lawton for so long that the city now has to pay to secure the former Army base out of its own budget, says she isn’t giving up yet on her effort to stop the plan to build 415 units of affordable housing, including 85 apartments for formerly homeless families, in its tracks.

Campbell filed a complaint alleging that the city’s Final Environmental Impact Statement for the affordable-housing plan failed to adequately consider all the potential environmental impacts of the project; that  seeking and receiving several postponements, Campbell failed to show up at recent hearings on her appeal of the Final Environmental Impact Statement (FEIS) for the development, prompting city hearing examiner Ryan Vancil to say that he would be justified in dismissing the case outright but would give Campbell one last opportunity to hire a lawyer and make her case on strictly legal grounds. Vancil’s order stipulated that Campbell could not introduce any new evidence or call any witnesses.

Late on Friday afternoon, Campbell’s new lawyer, a fairly recent law-school graduate named Nathan Arnold, filed a new brief asking Vancil to re-open discovery in the case, which would allow her to interview and cross-examine witnesses from the city. (Campbell and the Discovery Park Community Alliance were represented until at least this past January by an attorney at Foster Pepper, to whom the group paid about $15,000 for their services, according to Campbell.) The city has until next Friday, November 9, to respond, and Campbell has until the following Wednesday, November 14, to respond in turn.

Meanwhile, Campbell is preparing to sue the city. In a message to the DCPA email list, she writes: “It is not known how soon after November 2nd the examiner will issue his decision. However, when it is issued and if it affirms the adequacy of the City’s FEIS then DPCA will need to promptly shift gears and prepare for a judicial appeal and review of the FEIS. In fact, given the probability that this will be the outcome preparations are already underway to establish a litigation budget and to start exploring the grounds, the causes of action, for a lawsuit in either King County Superior Court or in U.S. District Court.”

Campbell’s email also mentions an alternative “workaround plan” that she says would turn Fort Lawton into part of Discovery Park—without housing—”while deploying a network of currently-owned properties that meet and exceed housing objectives crafted for Fort Lawton land.” The email also says that the DCPA has already met with interim Parks directory Christopher Williams and deputy mayor David Moseley to discuss this alternative.

2. Rebecca Lovell, the tech-savvy former head of the city’s Startup Seattle program, stepped down as acting director of the city’s Office of Economic Development this week after nearly a year in limbo under Mayor Jenny Durkan. Lovell, who was appointed acting director by former mayor Ed Murray, is joining Create33, an offshoot of Madrona Ventures, which Geekwire describes as “a unique hybrid of co-working space and a community nexus.” OED’s new interim director is Karl Stickel, a city veteran who most recently was OED’s director of entrepreneurship and industry.

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In addition to OED, the city’s departments of  Transportation, Civil Rights, Human Services, Parks, Human Resources, and Information Technology are all headed by acting or interim directors.

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3. City council member Kshama Sawant, who used the city council’s shared printer to print thousands of anti-Amazon posters during the head tax debate, spent as much as $1,700 in city funds on Facebook ads promoting rallies and forums for her proposed “people’s budget” (and denouncing her council colleagues) between the end of September and the beginning of this month.

The ads, which include the mandatory disclaimer “Paid for by  Seattle City Councilmember Kshama Sawant’s Office,” denounce Mayor Jenny Durkan, Sawant’s colleagues on the council, and the “Democratic Party establishment.”

“Seattle is facing an unprecedented affordable housing crisis,” the Sawant-sponsored ads say. “And yet, Mayor Durkan and the majority of the Council shamefully repealed the Amazon Tax that our movement fought so hard for, which would have modestly taxed the largest 3% of the city’s corporations to fund affordable housing.”

Because Facebook only releases limited information about its political ads, the cost of each ad is listed as a range. Of the five ads Sawant’s office has funded since September 28, two cost less than $100 and three cost between $100 and $499.

Seattle Ethics and Elections Commission director Wayne Barnett  says that “since these are about the budget process, she can use city funds to pay for them without violating the ethics code. There’s no electioneering here that would trigger the need to pay for these with non-public funds.” I have contacted Sawant’s office for comment and will update this post if I hear back.

 

Getting Smarter About Public Land: Lessons from Across the Northwest

The full version of this story is available at Sightline.

As cities across Cascadia look to technological solutions, such as modular construction, to help address the region-wide shortage of affordable housing, one of the biggest factors currently driving up costs is also one of the most resistant to intervention: Land prices, which can add tens of thousands of dollars to the cost of producing a single subsidized apartment.

Cities don’t have a lot of tools for lowering land costs, but they do own a lot of land—Seattle, for example, is sitting on more than 180 excess or underutilized parcels, many of which are well-suited for homebuilding.

To maximize taxpayer value, most cities usually auction off their excess land to the highest bidder, just like any private landowner would do. But in cities with hot real estate markets, affordable housing developers typically don’t have the financial resources to compete for land with market-rate developers. So publicly-owned land ends up in private hands, forever forfeiting its potential to help overcome one of the biggest barriers to the construction of subsidized homes: acquisition of land to build on. The backers of Seattle’s Rainier Valley Food Innovation Hub, for example, have been repeatedly outbid by private developers.

But what if local governments viewed surplus land not as a revenue generator but an opportunity to reduce displacement and stabilize communities? Several Northwest cities have begun asking that very question. The result is a growing string of affordable housing projects stretching through Cascadia—from the largest one-time investment in housing on city-owned land in Canada’s history, to an affordable housing and preschool development on the site of a former fire station in Seattle.

How much publicly owned land is there?

Enterprise Community Partners’ interactive mapping tool shows publicly owned properties.

Until recently, if you wanted to know what public land was available in the Seattle area, there was no central database—no way to easily find out, say, if a certain fenced-off plot of land that looked ripe for development was owned by the city or Sound Transit or King County, whether it had the right zoning, and whether it was up for sale. In 2015, newly elected King County Assessor John Arthur Wilson decided to do something about that; he directed his office to create a map of every piece of publicly owned land inside county limits.

The nonprofit Enterprise Community Partners expanded on Wilson’s effort, recently launching the beta version of an interactive tool that allows any interested party to use filters to narrow down a list of about 10,000 developable public properties according to specific characteristics, such as zoning, square footage, and eligibility for tax credits.

“In high-cost cities, it’s really becoming impossible for nonprofits to develop on privately owned land,” James Madden, the Seattle-based senior program director for Enterprise, says.  “The average land price, as a percentage of the total cost of development in Seattle, is about 10 to 15 percent, and if land continues to get more expensive, [nonprofits] will be priced out completely. Once you’re paying more than $30,000 a door [for land], it gets very hard for a public agency to justify spending beyond that level on acquisition.” Market-rate developers can charge higher rents to compensate for high land costs—an option not available to affordable housing providers.

Changing the rules that have prevented public land from supporting affordable housing

Wilson, the assessor, says the mapping tools might have been merely informational—a database of public land for sale at prices out of reach for most nonprofit housing builders—if the state hadn’t taken the next step, by giving local governments the authority to sell their land below market value or give it away for free. “We raised this issue with [state House speaker Frank Chopp] last year,” Wilson says. “After we pulled together the list of publicly owned land, we said, ‘Here’s the problem: A lot of this land is owned by agencies that have to sell it for fair market value,” putting even public land out of reach for many nonprofit agencies. In response, Chopp supported, and the legislature passed, a bill allowing state and local agencies to transfer land to affordable housing developers at little or no cost.

Local leaders quickly took notice. Seattle city council freshman Teresa Mosqueda, who campaigned on the need to build more dense, affordable housing, proposed and passed two pieces of legislation this year designed to encourage the city to give away its surplus property for free. The first, which passed in July, made it possible for Seattle’s electric utility, Seattle City Light, to dispose of its excess land at little or no cost—a major departure from its previous policy, which required the utility to sell property at fair market value.

The second, which the council passed unanimously earlier this month, requires the city to consider whether surplus land can be used for affordable housing and, if so, to make it available for that purpose. The legislation also allows the city to hold onto land while a nonprofit housing partner secures financing; directs the city’s Office of Housing to partner with “culturally relevant and historically rooted” nonprofits in areas where residents are at high risk of economic displacement; and mandates that 80 percent of the funds from any outright sale of city property go into one of the city’s affordable housing funds.

Read the whole piece at Sightline.

Morning Crank: A Dramatic Turnaround

1. All Seattle Public Library restrooms will soon be equipped with containers for needle disposal, following a six-month pilot program at the library system’s Ballard, Capitol Hill, University, and downtown branches. The library initiated that pilot after an employee at the Ballard branch was stuck with a needle while removing the trash from the women’s restroom, as I exclusively reported in March.

The decision marks a dramatic turnaround in library policy from just seven months ago, when library spokeswoman Andra Addison said that the library had no plans to install sharps containers for drug users (and diabetics) to dispose of used needles, because “We don’t allow illegal drug use in the library.”  The King County Public Library system preceded the Seattle library in installing sharps containers at branches in Burien, Renton, and Bellevue—branches where library staffers kept finding used needles on the floor, in toilets, and in trash bins.

Addison says it will cost about $2,000 to install the containers—the same ones used in the King County system—in all 60 library restrooms., and about $7,000 to empty and maintain them.  “The Library has ordered the additional sharps containers and we hope to have them installed over the course of November,” Addison says.

According to data provided by the library, the sharps containers at the downtown, Capitol Hill, Ballard, and University branches continue to be the most heavily used. Between the week of April 20 and the week of October 12, 912 sharps were discarded at the Central branch library, 348 on Capitol Hill, 234 in Ballard, and 194 in the University District.

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2. The city of Seattle won on two counts in the lawsuit filed by the owners of the Showbox on Friday, when King County Superior Court judge Mary E. Roberts ruled that legislation expanding the Pike Place Market Historic District to include the music venue did not constitute an illegal land use decision or a taking of private property. However, Roberts did agree to hear claims on two other, arguably more substantive, questions: Did the “Save the Showbox” legislation violate the state appearance of fairness doctrine, which requires officials to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property)? And did the city violate the property owners’ constitutional rights by dictating the use of the building as a music venue?

The owner of the building in which the Showbox is located, Roger Forbes, sued the city last month after the city council passed, and Mayor Jenny Durkan signed, “emergency” legislation making the two-story building part of the Pike Place Market Historical District. (The Showbox itself—that is, the venue that rents the building—is owned by the international behemoth Anschutz Entertainment Group).  The law, known as the “Save the Showbox” bill, prevented Forbes from selling the property to a developer, Onni, that had planned to build a 44-story apartment tower on the block. (The city had in fact just upzoned the block, along with the rest of First Avenue, specifically to encourage this type of development).

If the city violated the use of fairness doctrine, it will mean that all the public hearings and rallies and open discussions about the importance of  “Saving the Showbox” as a music venue—of which there have been many—were illegal, because the council should have remained neutral and refrained from holding public hearings. (Not only did the council hold public hearings, its members made signs, staged concerts, and even drafted public comments for private citizens in favor or the proposal.) If the court finds that the city violated Forbes’ rights by dictating the use of the Showbox property it will mean that the legislation thwarting Forbes’ plan to sell and develop the property was unconstitutional, and could open the city up to monetary claims.

The city is arguing that the “Save the Showbox” legislation—whose first section calls the Showbox “a significant cultural resource to Seattle and the region” whose loss “would erode the historical and cultural value of the Pike Place Market neighborhood”—in no way prevents Forbes or any future owner from shutting the Showbox down and using the property for another purpose. Forbes, pointing to the plain text of the legislation and the fact that the law gives the Pike Place Market Historical Commission the right to dictate every aspect of how the building is used, from the tenants down to the font, size, and materials used in its signage, says that’s absurd.

Forbes’ attorney noted that the city has only responded to one of the attorney’s ten public disclosure requests, making it difficult, he argued, to know “all the violations of the appearance of fairness doctrine.” For example, he said, “we just learned by happenstance that the cc staffers were writing public comments”—because of information that I obtained through my own disclosure request and reported on this site.

In dismissing the Showbox owners’ takings and land use claims, Roberts said that neither claim was ripe for consideration—in the case of the land use claim, because the owner of the property and the developer, Onni, had not filed a permit to develop the property by the time the legislation passed, and in the case of the takings claim, because the city has not issued any final decision about what kind of development is allowed on the property.

Roberts also rescheduled the remaining counts for early next fall.

The J is for Judge: Lesser Seattle Has Gaslighted the Pro-Housing Movement

Image via City of Seattle.

Well, that was like passing a kidney stone. After single-family zone stalwarts spent two years stalling the city’s efforts to allow more mother-in-law and backyard apartments, the city has finally returned with a new proposal to loosen restrictions governing  attached and detached accessory dwelling units.  Three cheers for that.

However, I will say: Unless the proposal—the preferred alternative from the city’s new Final Environmental Impact Statement for accessory dwelling units—is part of a broader series of citywide land use changes that include more actual apartments  in Seattle’s single-family zones, urbanists should not hail this new plan as a pro-city victory. To do so would just confirm how badly housing activists have been gaslit by Lesser Seattle and the convoluted story line that equates building more housing with some sort of George Soros plot.

I’m obviously not as sanguine as Sightline urbanist Dan Bertolet about the city’s latest plan to loosen restrictions on  secondary units in single-family areas. But nor am I as disappointed as the Urbanist, which thinks the changes should do even more to catalyze ADU and DADU development.

Mostly, as someone who has been reporting on this city’s push to increase density for decades now  (and who covered the Queen Anne Community Council’s original challenge to the new rules back in 2016), my reaction is mostly just: “Meh. About time, Seattle.” (Crosscut has an eye-opening timeline on the stalled push for more ADUs and DADUs in Seattle.)

The proposal certainly does some good.  And ironically (as I predicted at the time), the plan is the outcome of an Environmental Impact Statement the city was forced to do after the Lesser Seattleites from Queen Anne won their case to stall these long-overdue land use reforms.  The city’s new proposal increases ADU/DADU development capacity from current standards in place since 2010 by allowing taller and larger detached accessory dwelling units, also known as backyard cottages,  while simultaneously allowing development on smaller lots. The new preferred alternative allows two attached units, providing more flexibility for homeowners who want to build two extra units but may not have the space for a separate backyard apartment. It gets rid of the (pathological) off-street parking requirements for secondary units. It eliminates the requirement for the owner to live on-site if a house has an ADU. It gives one to two additional feet of height for DADUs that have a green design. And—oh no, watch out for laundry on the clotheslines!—it increases the number of unrelated people who can live on one lot from eight to 12.

Merely green-lighting more ADUs and DADUs and declaring victory in the fight to build housing in Seattle’s exclusive single-family neighborhoods is like proposing a congestion pricing scheme that only charges Uber and Lyft and ignores the 25 percent of downtown commuters who drive to work alone.

Perhaps the best change (Sightline’s Bertolet calls it “radical!”)— and one that blows QACC’s cover story that they were trying to prevent small existing houses from being torn down and replaced by huge single-family monstrosities— is that the new preferred alternative shuts down the potential for any McMansion craze. As Erica noted: The proposed new rules limit new houses to just 2,500 square feet or a 50 percent floor-area ratio (FAR), whichever is larger. FAR is the ratio of the square footage of a building to the lot that it’s on.

These are all welcome changes; the original 2009 law that allowed ADUs and DADUs in the first place (itself overdue) underperformed thanks to the rigid guidelines the new proposal unwinds—only 221 were built on the city’s 75,000 eligible single-family lots, or just 37 a year, between 2010 and 2016. Council Member Mike O’Brien’s initial reform proposal (the one the QACC dragged to the hearing examiner in 2016)  was expected to produce about 4,000  accessory units in the next 20 years—about five times the current underwhelming rate.

Burn on the QACC: The new-and-improved proposal doubles that, to an estimated 4,430 new units in the next 10 years.

Still, the proposal doesn’t solve the underlying problem: Seattle’s ongoing housing shortage, which is exacerbated by the fact that 65 percent of the city’s developable land is exclusively reserved for single family zones. Merely green-lighting more ADUs and DADUs and declaring victory in the fight to build housing in Seattle’s exclusive single-family neighborhoods is like proposing a congestion pricing scheme that only charges Uber and Lyft and ignores the 25 percent of downtown commuters who drive to work alone.

In the absence of more meaningful changes to the city’s exclusionary zoning laws, simply allowing more ADUs and DADUs is not a win—it’s a capitulation to anti-density activists who have moved the goalposts by keeping most of the city off-limits to any development, making even incremental victories like this one seem more significant than they are. Building 4,000 units over the next ten years falls far short, for example, of the 14,000 affordable units Seattle needs to simply address the existing homelessness crisis.

The ADU/DADU proposal must be coupled with other land use reforms that dismantle the wall around single family zones. The city’s actually “radical” 2015 proposal to allow multi-family development in single-family areas (which it  dropped after the Seattle Times stoked a privileged neighborhood tantrum of Lindsey Graham proportions)  has since been whittled down to allowing some multifamily housing in just six percent of the areas that are currently zoned single-family—and only along the edges. Hopefully the city will eventually enact this mild reform as well. (Another Lesser Seattle neighborhood group is now challenging this scaled-back proposal in front of the hearing examiner, naturally).

Until the city allows more housing of all types in walled-off single-family zones, slightly more permissive rules for secondary units will represent a limit, rather than a license to increase housing stock.

Morning Crank: Prohibitive and Frustrating

1. Marty Kaplan, the Queen Anne activist who has filed multiple legal challenges to delay new rules that would allow homeowners to add up to two additional units to their property, is reviewing the final environmental impact statement (EIS) on the proposal and deciding whether to press on with his appeal, according to an email he sent to members of the Queen Anne Community Council last week.

In the email, Kaplan notes that the group has until October 18 to file an appeal, and suggests that they adopt the following motion: “If the ADU FEIS is found by Martin Kaplan to be deficient in representing a comprehensive environmental study as required by the Hearing Examiner in our former appeal and outlined with our letter of comment pertaining to the ADU DEIS, then Martin Kaplan is hereby authorized to file an appeal on behalf of our QACC.” Kaplan has not said whether he plans to continue pursuing his case against the city, or whether thousands of Seattle homeowners will finally be able to build secondary units on their properties.

The FEIS, released last week, added a fourth, preferred, option to the three alternatives in the draft document, which I covered in depth in May.  If the city adopts the preferred option, homeowners will be able to build up to two accessory dwelling units (ADUs) on their property—two attached (mother-in-law) units, or one attached unit and one detached apartment, subject to maximum rear lot coverage of 60 percent. (The total maximum lot coverage—35 percent for lots over 5,000 square feet, or 15 percent plus 1,000 square feet for lots under 5,000 square feet—will remain the same). The minimum lot size for building an additional unit will be reduced from the current 4,000 square feet to 3,200 square feet, and rules requiring homeowners to build an extra parking spot for each unit, and to live on the property at least six months a year, will be lifted. However, in an odd concession to opponents like Kaplan, homeowners who want to build a second ADU won’t be allowed to do so until they’ve owned the property for at least a year. Both attached and detached units could be up to 1,000 square feet—up from the current 800—and up to 12 unrelated people could live on a lot with three units, allowing (for example) a house, basement apartment, and backyard cottage with four roommates each on a single lot. (This has been a particular sticking point with single-family activists who say so many unrelated people shouldn’t be allowed to live on a single lot). Unlike one of the alternatives the city originally considered, the preferred alternative would not require homeowners to pay into a city affordable housing fund if they want to build a second accessory unit.

Finally, in an attempt to mitigate the spread of new McMansions in Seattle’s single-family areas (and encourage homeowners to add density instead), the proposed new rules limit new houses to just 2,500 square feet or a 50 percent floor-area ratio (FAR), whichever is larger. FAR is the ratio of the square footage of a building to the lot that it’s on. A 2,500-square-foot house on a 5,000-square-foot lot would have a floor-area ratio of 0.5, even if that 2,500 square feet is spread over two stories; so would a 3,600-square-foot house on a 7,200-square-foot lot, and so on.

Because the the city used slightly different assumptions in calculating the number of second and third units that will be produced if the new rules move forward (assuming, for example, that homeowners will have access to pre-approved standard plans for accessory units, and that the city will lower other regulatory barriers that drive of the cost of adding extra units), the new preferred alternative is expected to lead to slightly more units than any of the options the city previously considered. Overall, the preferred alternative would produce about 2,460 more accessory units than the no-action alternative (a total of 4,430), which would correspond to about 3,960 additional residents in single-family areas, spread across Seattle (6,645, compared to 2,955 under the do-nothing alternative.)

2. Saul Spady—the grandson of Dick Spady, of Dick’s Burgers, and one of the most vocal opponents of the “head tax” for homelessness that was overturned earlier this year—has been busy. Since September, Spady has reportedly been meeting with prospective city council candidates for 2019, including Erika Nagy of Speak Out Seattle and Ari Hoffman, who unsuccessfully sued the city for $230,000 in “homeless-related damages” to a cemetery in North Seattle. On Friday, Hoffman officially filed to run for council in District 2, the South Seattle council seat currently held by three-term incumbent Bruce Harrell. Spady, whose parents spend decades advocating for charter schools,  sent out an email in September seeking funds to defeat the upcoming Families and Education Levy renewal and to recruit “common sense candidates” to defeat council incumbents—a solicitation that could put him at odds with city and state election  laws.

In addition to his work recruiting local candidates, Spady has an upcoming speaking engagement in front of members of the Washington Policy Center, a conservative/libertarian-leaning think tank. The group’s annual Young Professionals Dinner includes speeches and “exclusive Q&A sessions” with two keynote speakers: Spady, and former US House Speaker-turned-Trump apologist Newt Gingrich. Non-member tickets start at $75.

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3. Speaking of potential council candidates: A few other names that are starting to circulate in the rumor mill for 2019: Former Nick Licata campaign manager Andrew Lewis (District 7, currently held by Sally Bagshaw); former Seattle police chief Jim Pugel, also in District 7; Beto Yarce, a onetime undocumented immigrant and entrepreneur who now runs a nonprofit that helps launch small businesses (District 3, held by Kshama Sawant); and community organizer Tammy Morales, who came within 400 votes of beating District 2 incumbent Bruce Harrell in 2015 and is widely expected to run for his seat this year. Bagshaw is widely expected to step down this year, as is District 4 council member Rob Johnson. Sawant has given no indication that she won’t seek reelection, and Harrell’s plans are currently anybody’s guess.

4. Mayor Jenny Durkan’s proposed 2019 transportation budget includes new investments in “adaptive signal” technology—a term that typically describes systems that monitor where vehicle traffic is heavy and adjust light cycles to give traffic more time to get through crowded intersections. Seattle has a system like this in place on Mercer Street in South Lake Union, which “detects cars in each lane at every intersection … determines traffic levels, predicts the flow of traffic, and adjusts the amount of time available to each movement through the intersection.” These marginal drive time improvements often come at the expense of pedestrians, who are forced to endure long waits as the city gives cars extra time to drive through intersections (and to dash across the street on short walk cycles designed for maximum vehicle movement), which is one reason the National Association of City Transportation Officials says that “long signal cycles … can make crossing a street or walking even a short distance prohibitive and frustrating, [which] discourages walking altogether,” and recommends adaptive signals only for suburban areas.

However, the new budget also includes funding for a pilot project at the University of Washington that could at least start to restore the balance between pedestrians and cyclists and the almighty car. The project, which will also be funded by the UW and the Federal Highway Administration, will test passive pedestrian detection and pedestrian counting—technologies that could eliminate the need for walkers to push a “beg button” to cross the street and allow longer crossing times for large groups of pedestrians, respectively. (One way to obviate the need for a beg button, of course, would be to assume there are always pedestrians trying to cross the street in busy areas like South Lake Union and the U District and provide a walk cycle during every green light, as pedestrian advocates across the country have been requesting for years, but baby steps.)

The pilot project will also test an app that will enable cyclists to trigger signals at intersections that equipped with weight-sensitive sensors in streets, which don’t detect vehicles lighter than cars. Cyclists (and, presumably, motorcyclists, who are also usually too light to trip pavement-embedded signals) will be able to download an app that will notify any signals equipped with the new technology that a bike is present, causing the light to change even if there aren’t any cars around. This “solution,” of course, will only work in the limited number of signals near the University of Washington that are equipped with detectors, and for cyclists who download the app and have it running on their phones when they approach those intersections.

This post has been edited to reflect that maximum lot coverage rules will remain the same under all accessory dwelling unit options; the change is to maximum rear yard coverage, which would increase to 60 percent for new detached accessory dwelling units.

Morning Crank: Fort Lawton Drags On, Spady Drags His Feet, and Enhanced Shelter Shortage Drags Out Homelessness

1. The wait for affordable housing at the Fort Lawton military base in Magnolia—on which, as I noted last week, the city is now spending hundreds of thousands of dollars for security —will continue to drag on at least until the end of this year, after a city hearing examiner agreed to delay a hearing in an appeal challenging the environmental impact statement on the project until the end of October so that the complainant, Magnolia activist Elizabeth Campbell, can secure a lawyer. The appeal process has already been delayed once, until the end of September, to accommodate Campbell’s lengthy vacation to Europe. Campbell said that she was requesting this second delay because of health concerns that have prevented her from participating in the appeal process.

The motion granting Campbell’s request for a delay, which also denied the city of Seattle’s request to dismiss the six-month-old case, includes a salty dismissal of Campbell’s claim that the hearing examiner, Ryan Vancil, should not be allowed to hear the appeal because he once served on the board of Futurewise, a conservation group with no stake in the Fort Lawton debate, and because he has represented the Seattle Displacement Coalition, which works to prevent the demolition of existing affordable housing, in the past.

The city’s rules, Vancil noted, require anyone who files an appeal before the hearing examiner to file any motions to disqualify a particular hearing examiner quite early in the process, typically at least 7 days before the first hearing. That hearing was in May.  “As explained at the prehearing conference [on May 15] the Hearing Examiner has not been a board member or officer of Futurewise for two years, and is not currently a member as alleged by Ms. Campbell. Ms. Campbell identified no specific interest in this appeal by either Futurewise, or the Seattle Displacement Coalition. … Ms. Campbell was clearly aware of these facts [and] raised [them] in the context of a response to the Hearing Examiner’s disfavorable order as a form of retaliation.” In other words, Campbell only decided Vancil’s past association with Futurewise was a problem after he ruled against her on an unrelated issue—specifically, the fact that Campbell hadn’t filed her list of witnesses and exhibits by a mid-September deadline.

(Side note: Vancil may not be on the Futurewise board anymore, but the group’s current board includes two attorneys, Jeff Eustis and Dave Bricklin, who have both fought against proposals to allow more density and housing, including Mandatory Housing Affordability, which allows developers to build more densely in exchange for funding affordable housing; a proposed 12-story building in Pioneer Square that would have replaced a “historic” parking garage; a proposed three-story apartment building in Phinney Ridge, which nearby homeowners opposed because they didn’t want to lose parking in front of their houses; and a proposal to make it easier for homeowners to build secondary units on their property. Given that track record among Futurewise board members, serving on the group’s board could be seen as an indication that Vancil is sympathetic to housing opponents like Campbell. The Displacement Coalition, meanwhile, often fights against density and development on the grounds that it displaces people and drives up the cost of housing.)

Campbell claimed that she was unable to file a list of witnesses because of her poor health. But Vancil was skeptical about that claim, noting that Campbell had managed to  five no fewer than separate, lengthy motions over a period of about two weeks in September, Vancil said, which “demonstrate[s] Appellants’ capacity to draft documents and work on this case, and/or the ability to have communicated at an earlier date that Appellants did not have the capacity to identify exhibits and witnesses within the time required.”

The next hearing on the Fort Lawton appeal will be at 9:30am on October 29.

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2. A city audit of the Navigation Team—a team  of police officers and outreach workers that removes encampments and offers services to people living unsheltered in Seattle—concluded that the city has not done enough to provide the kind of “enhanced shelter” that people living outdoors are most likely to accept, and should consider increasing the use of diversion strategies like “reunification”—that is, connecting people to family,  and sending them on their way. The idea of reunification is popular in California, where cities like San Francisco provide bus tickets out of town to homeless people who are able to find a friend or family member who will tell the city they are willing to take the person in. Such programs are controversial because, while they do relocate some chronically homeless people outside city limits, little is known about how people in such programs fare at the end of what are often cross-country journeys, and horror stories abound.

Mayor Jenny Durkan’s proposed budget for the Human Services Department notes that enhanced shelters, which provide case management, a place to store possessions, and a place to be during the day, result in significantly more exits to permanent housing than stripped-down, mats-on-the-floor, in-at-9-out-at-7 basic shelters. According to the Human Services Department, 21 percent of people who entered enhanced shelters, like the Navigation Center operated by the Downtown Emergency Service Center, exited into some form of permanent housing. (Permanent housing can include everything from supportive housing in facilities with case management and other services, or a “rapid rehousing” voucher for an apartment on the private market.) In comparison, just 4 percent of those entering basic shelters exited directly into permanent housing.

Despite their higher success rate, the audit found that enhanced shelters are often full, making it impossible for the Navigation Team to refer many, if any, unsheltered people to them. Between March and December of 2017, the report says, there was an average of 18 beds available for all Navigation Team referrals—an average that includes 27 days when fewer than 10 beds were available, and four months in which the average daily vacancy was less than one bed, citywide. This was during a period when the Navigation Team contacted more than 1,800 individual people, many of them more than once.

Finally, the auditor recommended that the city consider “bridge to housing” strategies like the ones in place in San Diego and Sacramento, which employ large, semi-permanent tentlike structures that can house tens or hundreds of people in dormitory-style or more private rooms. The structures are similar to enhanced shelter—24/7 and low-barrier, they allow singles and couples to bring pets and possessions with them—but are less expensive because the buildings aren’t permanent.

The idea, which council members Lisa Herbold and Teresa Mosqueda brought up yesterday, elicited a testy back-and-forth between Mosqueda and Navigation Team director Fred Podesta, who interrupted Mosqueda’s question about the bridge-to-housing strategy by saying, “We need to carefully think about, are people going to accept an enormous, 150-person dormitory that’s in a tent? Before we get too bound up in the efficiency of a particular structure type, we have to think about how our clients are going to respond to it.” When Mosqueda picked up her line of question, Podesta interrupted her again, interjecting, “I just think it’s worth asking the question—if our approach is going to be to offer [housing in that type of structure to] people—’Would you go or not?’ We need to ask those questions before we spend $2 million on a tent.” The city of Sacramento estimates that a 300-bed shelter of this type would cost between $3 million and $4 million a year.

3. Saul Spady, the Dick’s Burgers scion and political consultant last seen soliciting money to defeat the upcoming Families and Education Levy renewal and to fill the seven city council seats that will be up for grabs next year with “common sense civic leaders,” may be improperly raising funds for an election campaign without registering with the Seattle Ethics and Elections Commission and the Public Disclosure Commission.

As I reported, Spady sent an email to supporters in September seeking $100,000 in contributions for a campaign to “educate” voters on why they should oppose the Families and Education Levy ballot measure and support “common sense civic leaders” against incumbent council members next year. The email says that Spady hosted a meeting the previous week—that is, the week of September 3—of “potential 2019 Seattle City Council candidates focused on common sense, fiscally responsible & acountable [sic] government mixed with active citizens who are concerned about the continuing slide of Seattle into the ‘corruption of incompetence’ that we’re witnessing across all sectors of city hall.” The goal of the meeting, Spady continued, “was to engage likely candidates & political donors.”

This kind of unofficial campaigning could put Spady, who owns the ad firm Cre8tive Empowerment, in violation of state campaign finance law as well as the city’s own campaign finance rules. According to the Public Disclosure Commission,  new campaigns for or against ballot measures must register with the PDC “within two weeks of forming a committee or expecting to receive or spend funds (whichever occurs first).” The Seattle Municipal Code, similarly, requires campaigns to file with the Seattle Ethics and Elections Commission as soon as they’ve raised or spent any money, announced that they plan to support or oppose a candidate or an upcoming ballot measure, bought an ad or reserved ad space, or put a survey in the field about a candidate or ballot measure. Filing involves paying a fee (about $1,300), setting up a campaign office, opening a bank account, and designating campaign officers. All of this, again, must be done within two weeks of soliciting money or engaging in any other campaign activities. Spady’s email went out on Tuesday, September 11—more than three weeks ago. As of midnight last night, Spady had not filed any campaign paperwork with either agency.

Budget Crank: Juarez vs. Bike Lanes, Golf vs. Affordable Housing, and Climate Goals vs. Convenience

Mayor Jenny Durkan calibrated expectations for her first-ever city budget early, by asking every city department to come up with across-the-board budget cuts of between 2 and 5 percent—creating the impression that her budget would require difficult choices, while also ensuring that if popular programs did manage to escape the knife, the mayor’s office would get the credit. That, essentially, is what happened—Durkan unveiled a budget that modestly increases general-fund spending, from $5.6 billion to $5.9 billion (slightly more than the rate of inflation) while preserving homelessness programs that were paid for this year with one-time funding, minimizing layoffs, and handing out $65 million in retroactive pay to  Seattle police officers who have been working without a contract since 2015.

Shortly after she released her budget, Durkan’s office sent supporters a list of 18 suggested social media posts intended for use on social media. Each suggested post included messaging and images created by Durkan’s staff. For example, to illustrate the fact that her budget preserves funding for existing homelessness programs without raising taxes, Durkan’s office suggested the following Facebook post:

“To help our neighbors experiencing homelessness, @Mayor Jenny Durkan’s budget commits $89.5 million to support programs that we know work, including rapid rehousing, diversion, and enhanced shelters – without new taxes on businesses and residents.”

For a Twitter post on the new police contract, which also includes a 17 percent raise for officers,, Durkan’s office suggested the following:

. @SeattlePD officers haven’t had a raise since 2014. @MayorJenny’s new budget includes funding for the proposed @SPOG1952 contract that’s a good deal for our officers, good for reform, and good for Seattle. #SEAtheFuture 

Durkan appears to engage in the practice of distributing canned social-media materials, which more than one observer recently described as “very D.C.,” much more frequently than her predecessors. (Kshama Sawant may use city-owned printers to make hundreds of posters for her frequent rallies at city hall, but it’s still unusual for a mayor to use staff time to rally support for her initiatives on social media). As in D.C. politics,  the method is hit  or miss. A quick search of Twitter and Facebook reveals that the hashtag, and a handful of the posts, were mostly picked up by the social-media accounts of several city of Seattle departments—which, of course, report to Durkan.

2. The council got its first look at the budget this past week. And while this year’s discussions are shaping up to be more muted than 2017’s dramatic debate (which culminated in a flurry of last-minute changes after an early version of the head tax failed) council members are asking questions that indicate where their priorities for this year’s budget lie. Here are some of the issues I’ll be keeping an eye on, based on the first week of budget deliberations:

• Golf 

Did you know that Seattle has four taxpayer-funded public golf courses? (The city of Houston, whose population is more than three times that of Seattle, has six). The city is worried about its ability to sustain so many courses, which are supposed to bring in profits of 5 percent a year to pay back the debt the city took out to improve the golf courses to make them more attractive to golfers. (Guess that saying about spending money to make money doesn’t apply to sports with a dwindling fan base?)  This year, the city moved the cost of paying debt service on those upgrades out of the general fund (the main city budget) and into the city’s separate capital budget, where it will be paid for with King County Park Levy funding, as “a bridge solution to address the anticipated [golf revenue] shortfall for 2019,” according to the budget. The city is also considering the use of real estate excise tax (REET) money to pay for debt service on the golf course improvements.

All of this puts the future of municipal golf in question. Parks Department director Christopher Williams told the council Thursday, “We’ve got a sustainability … problem with our golf program. We’ve got a situation where rounds of golf are declining and the cost of labor for golf is increasing. … The policy question is, to what level should we subsidize public golf?

Council member Sally Bagshaw reminded Williams that affordable-housing advocates have suggested using some portion of the golf courses for affordable housing—they do occupy huge swaths of land in a city that has made all but a tiny percentage of its land off-limits to apartment buildings—but Williams demurred. “We feel we have an obligation to explore some of the more restorative steps that ask the question… can we sustain golf in the city? And does that come down to, maybe we can’t sustain four golf courses. Maybe we can only sustain the two most profitable golf courses in the city ultimately. But we don’t feel we have enough information to be in a place where we can make a compelling case that golf courses should become places for affordable housing.” The department is working on a fiscal analysis of the golf courses, which a parks department spokeswoman told me should be out in mid-October.

Budget director Ben Noble said the city is looking at alternatives such as carsharing and sharing motor pools with other jurisdictions, like King County and Sound Transit, to reduce the number of cars the city needs.

• Shrinking the City’s Car Dependence

During her budget speech and in an executive order that accompanied her budget, Mayor Durkan proposed reducing the city’s vehicle fleet, over an unspecified period of time, by 10 percent—a reduction that would mean getting rid of more than 400 city-owned cars. Lorena Gonzalez, who lives in West Seattle and is one of two at-large council members who represent the whole city, had some concerns. “Sometimes my office has to be way up in District 5 or way down in District 2 or over in District 1, and getting there and back in an efficient amount of time using a bus is pretty difficult, so we rely a lot on the motor pool, and I think that’s true of a lot of other departments throughout the city,” Gonzalez said.

“Certainly we try to encourage our employees to ride public transit into the city of Seattle, and I think one of the benefits of doing that, and one of the incentives for doing that, is that if an employee needs to get somewhere during the day, they have a motor pool car available to them.” Budget director Ben Noble responded that the city is looking at alternatives such as carsharing and sharing motor pools with other jurisdictions, like King County and Sound Transit, to reduce the number of cars the city needs.

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• Fort Lawton

The former Army base next to Discovery Park has been mothballed for years, awaiting the end of hostilities over a plan to build affordable family, senior, and veteran housing on the grounds. (The Army owns the land but offered it to the city for free more than a decade ago in exchange for an agreement to build affordable housing on the property. The city has been unable to hold up its side of the bargain due to ongoing challenges to its plans for housing.) While neighbors squabble over whether to allow low-income people onto the  high-end peninsula, squatters moved into some of the vacant buildings on the property, and the Army decided it was tired of paying to keep them out. That’s how the cost of securing Fort Lawton fell to the city‚ and ultimately, how a line item for hundreds of thousands of dollars in “Fort Lawton Security and Maintenance Costs” ended up in this year’s city budget.

Gonzalez was the one who noticed the eye-popping number—the Office of Housing and the Department of Finance and Administrative Services are each responsible for about $167,000 in 2019 and $172,455 in 2020—and asked OH director Steve Walker about it. “Throughout 2018, the city took responsibility for maintaining that property, as opposed to the Army maintaining that property, and that was part of the Army’s way of saying, ‘You guys are taking a long time and it’s costing us a lot of money. If we’re going to extend this window of opportunity for you, we want you the city to own those costs,’ and we agreed to do so.” Budget director Noble said the city isn’t in a great position to ask the Army to take on more of the costs to secure the property, given that the city was supposed to build housing there years ago, but added that if the city does manage to reach a deal to develop Fort Lawton, the Seattle public school district—which hopes to purchase some of the property—would be on the hook for some of the costs that the city is incurring now, so “we may even get a rebate.”

“We have two bike lanes in Seattle in District 5 that aren’t even used —125th and, barely, Roosevelt. … Some neighborhoods just don’t need bike lanes—it  just doesn’t make sense to have them.” —District 5 city council member Debora Juarez

• And—What Else?—Bike Lanes

Council member Debora Juarez, who appears to view bike and pedestrian safety improvements as a zero-sum game, sounded frustrated when her colleague Sally Bagshaw talked about the need to connect bike lanes in her downtown district so that people will feel safer riding bikes. (Last year, the percentage of commuters riding their bikes downtown actually declined.)  Juarez said she had “a different take on bike lanes than council member Bagshaw.” Then she unloaded on the idea of spending money on bike lanes in her North Seattle district when many areas don’t even have sidewalks. (This is a perennial complaint about North Seattle that stems largely from the fact that the area was built without sidewalks and annexed to the city in the 1950s.)

“We have two bike lanes in Seattle in District 5 that aren’t even used —125th and, barely, Roosevelt,” Juarez said—a claim that was immediately refuted by North Seattle cyclists on Twitter. “So I’m going to ask you to be accountable to us, to tell me how you’re justifying those bike lanes and their maintenance, particularly when I heard some numbers about … how much are we spending per mile on a bike lane… Was it $10 million or something like that?” This misconception (and it is a misconception) stems from the fact that the city’s cost estimates for bike infrastructure also include things like total street repaving, sewer replacement and repair, streetlight relocation and replacement, sidewalks, and other improvements that benefit the general public. Although bike lanes make up only a fraction of such estimates (a fact that should be obvious, given that simple bike lanes involve nothing more than paint on a road), many opponents of bike safety improvements have seized on the higher numbers to claim that bike lanes are many times more expensive than their actual cost.

Juarez continued, noting that her constituents have griped that bike lanes do not have to go through a full environmental review under the State Environmental Protection Act (a review intended to determine whether bike lanes are bad for the environment). “If you’re just putting them in to slow down traffic, then tell us you’re putting in something to slow down traffic,” Juarez said, adding, “Some neighborhoods just don’t need bike lanes—it  just doesn’t make sense to have them. In some neighborhoods, it does make sense to have them. I wasn’t around when the pedestrian bike plan was passed, but I am around now, and I do have a base that … are still scratching their heads [avout] why there are particular bike lanes and what their costs are.”

The council will hold its first public hearing on the budget at city hall (400 5th Ave.) at 5:30pm this Thursday, October 4.

Lawsuit: Council Violated Numerous Laws When It “Saved the Showbox”

In a move so predictable it hardly even merits an I-told-you-so (but I did tell you so), the owners of the building on First Avenue that houses the Showbox have sued the city in response to a land-use decision that effectively downzones their property from 44 stories to two, arguing (among other things) that the move constitutes an illegal spot zone and a taking of private property worth $40 million—the sum for which the owners had planned to sell the land.

To unpack the story—which David Kroman broke on Crosscut earlier today—it helps to recap a bit of the whirlwind history that led us to this point. Last month, news broke that a Vancouver developer called Onni Group planned to tear down the Showbox and redevelop the property as a 440-foot-tall apartment building with 442 units, which could have included a new ground-floor music venue. The city council had just upzoned  the property as part of the city’s Mandatory Housing Affordability plan, which grants developers in some areas, including downtown, the right to build taller and denser in exchange for building or funding affordable housing. However, a public outcry—spearheaded by music fans and amplified by anti-development council member Kshama Sawant, who saw the controversy as an opportunity to stop a “greedy developer” from profiting from a new high-end development—prompted “emergency” legislation that expanded the Pike Place Market Historical District to include the Showbox property for at least the next ten months. (The property is owned by strip-club magnate Roger Forbes, who also owns the Deja Vu Showgirls club down the street; the Showbox itself is operated by a tenant, AEG Live, which describes itself as “the world’s second largest presenter of live music and entertainment events.”)  Initially, Sawant proposed a dramatic expansion of the historical district that would have effectively downzoned a dozen existing properties and forced property owners to obtain permission from a historical commission before renting to new tenants or making any visible changes to their property, but that was eventually scaled back and only the Showbox property got the “historical” designation. The new rules last for ten months—long enough for the city to decide whether to extend them and make the two-story Showbox building a permanent part of Pike Place Market, and long enough (or so the “Save the Showbox” crowd hoped) to convince Onni to go away and for supporters to put together a plan to preserve the space as a music venue in perpetuity.

That brings us to the present, and the lawsuit filed last week. The suit claims that the city council violated the owners’ property rights by passing a spot rezone that reduces its value by tens of millions of dollars; that they violated  the state’s Appearance of Fairness Doctrine, which requires officials like council members to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property) until after all the evidence has been presented and to make their deliberations in public, not behind closed doors; that the inclusion of the Showbox in a historical district designed to protect farmers and small-scale artisans is “the definition of arbitrary and capricious”; and that the “illegal spot zone” violates the city’s comprehensive plan, which calls for more density in places like downtown Seattle.  “The Decision [to expand the historical district to include just the Showbox] bears no rational relationship to promoting a legitimate public interest; it singles a small area out of a larger area for use and development restrictions that are not in accordance with similarly situated neighboring properties and not in accordance with the City’s Comprehensive Plan.”

The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate.

The argument that the council’s vote to put the Showbox in the Market historical district represents a spot rezone—that is, that it effectively turns a property with a 440-foot height limit into one with a limit of just two stories, the height of the existing Showbox building— is critical. If the court accepts this argument, they may also be inclined to accept the property owners’ argument that council members, particularly Sawant, violated the law by discussing the decision outside the public eye, and participated in a campaign in favor of the rezone. The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate. (If this argument sounds vaguely familiar, you probably remember it from Strippergate—a scandal that contributed to the defeat of two city council members who violated quasi-judicial rules when they discussed, and voted for, a rezone to allow strip-club owner Frank Colicurcio to expand the parking lot at his Rick’s strip club in North Seattle. In an odd turn of fate, Showbox property owner Forbes purchased Rick’s from Colacurcio in 2011.)

The lawsuit echoes a point that I have made numerous times at The C for Crank about basing policy on the wishes of a vocal few—in this case, music fans and industry employees who sign petitions and hold signs that say “Save the Showbox” and write songs bemoaning the inexorable fact that cities change:  “When politicians cater to populist calls – whether those calls are ‘lock her up,’ ‘build the wall’ ‘ban Muslims,’ or ‘Save the Showbox’ – civil and other rights are placed at risk. Populism, and politicians’ desires to appease their loudest constituents and generate headlines must, however, yield to the rule of law. Luckily for those who prefer protection of civil, constitutional and property rights, the courts exist to preserve, protect and enforce the rule of law.”  Indeed, the suit argues that the council caved to public pressure in order “to enhance its political popularity” and “enacted an unlawful ordinance that was intended to, and did, place all the burden of providing a public music venue to City residents onto the shoulders of a private landowner. The ordinance greatly and instantly devalued the property and will scuttle its redevelopment unless the City’s improper spot down zone is declared unlawful.”

The owners of the Showbox property don’t mention race and social justice in their lawsuit. But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.

The complaint also takes a swing at the notion—which several council members, particularly Lisa Herbold, made explicit during the debate over the historical designation—that the squat, repeatedly remodeled Showbox building itself is “historic.” The city, the lawsuit notes, hired a consultant to consider the Showbox for historic landmark status in 2007, but found that the building lacked “any redeeming landmark features.” This, the complaint continues, “was partly because the building had been remodeled during its many uses in the past including as a comedy stage, an adult entertainment arcade, a furniture store and a bingo hall.” When Showbox preservationists talk about “silencing the ghosts of Seattle’s history,” as one of the venue’s bartenders did last month, is that the history they’re thinking of?

One final note. Ordinarily, when the city makes land-use decisions, it puts those decisions through a rigorous Race and Social Justice Initiative (RSJI) analysis to determine what impacts the decision might have, positive or negative, on marginalized and low-income communities. As far as I can tell, the city did no such analysis when it decided to effectively downzone the Showbox block—a decision that also meant foregoing about $5 million in funding for affordable housing under MHA. The owners of the Showbox property don’t mention race and social justice in their lawsuit, perhaps because such goals are hard to quantify (and harder still in the absence of the usual analysis). But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.

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The Showbox Is “Saved.” Now What?

When I lived in Austin, back in the 1990s, there was this bar called the Cedar Door that kept getting displaced by development. The proprietors just couldn’t catch a break: As soon as they opened in a new location, it seemed, some developer would come along and announce a new condo or apartment or office building and the Cedar Door had to go. By the time I lived in Austin, the bar’s peripatetic nature was part of local lore: The bar that never stays in one place for long.

Let me tell you another story: There was this club, also in Austin , called Liberty Lunch, where I saw some of the most memorable shows of my young adult life, including the Pixies, Failure, Clutch, and a bunch of other bands whose names are lost to time. In the late ’90s, despite a concerted local effort to save it, Liberty Lunch shut down—a victim, it was said, of development run amok. (You can still visit it virtually, on the “I Still Miss Liberty Lunch” Facebook page.) Many of the bands I saw there are now on their second or third reunion tours, playing at $30-and-up venues like the Showbox.

A final story, from Seattle. A beloved cultural institution, the Museum of History and Industry, was forced from its location in Montlake by the need to rebuild the floating bridge across SR-520. The old bridge was, in a way, itself a victim of development: Massive suburban growth that state highway planners said necessitated a wider bridge to carry commuters swiftly back and forth across Lake Washington. The museum struck a deal with the city and state, and opened in a new (and arguably more apt location): South Lake Union, where old history rubs shoulders with new industry.

What did the city council vote for today, when it voted to “Save the Showbox” by making it part of the Pike Place Market Historical District?  To the mostly middle-aged crowd who testified about the value of the venue, the vote was about the musical heritage and cultural future of Seattle. To the Pike Place Market preservationists who see the Showbox debate as an opportunity to relitigate the city’s decision to upzone First Avenue to allow taller buildings—an upzone that today’s vote partly reversed—the decision was about protecting the “entrance to the market” from towers near the Market, which they have long opposed. (The Showbox, notably, was not included in the Pike Place Market historical district in 1971, when the district was created after a lengthy citizens’ effort to save the market from development, even though it had been around, at that point, for more than four decades.) To residents of the Newmark Tower condos on Second Avenue, the vote was an opportunity to preserve their views of Elliott Bay and limit traffic in the alley behind their building. “Past city councils shouldn’t have upzoned,” attorney and Newmark condo owner Dan Merkle said. He wore a “Save the Showbox” T-shirt. (Opponents of theoretical “luxury apartments,” in one of the day’s many ironies, were in league with the owners of actual luxury condos.) And to density advocates like council member Teresa Mosqueda, it was a symbolic vote to “protect” one downtown block that came with an implicit bargain: If people who showed up over the past week to “Save the Showbox” really want to preserve cultural institutions and build affordable housing, she said, they need to show up for future debates about development, too—to advocate for more density all over the city.

The council has shown that they will overturn major land-use policy decisions that took years to develop in response to concerted public pressure from vocal interest groups, without regard for whether doing so violates the spirit of prior land-use policies that resulted from lengthy, and often hard-fought, public processes. This week, it was the Showbox. Next month, it could be  an industrial business that stands in the way of a bike lane, or a single-family house whose preservation could prevent the development of dense housing in a neighborhood.

The legislation the council adopted today adds the Showbox property, owned by strip-club magnate Roger Forbes, to the Pike Place Market Historical District for the next ten months so the city can “review the historic significance ot the Showbox theater, study the relationship between the Showbox theater and the Pike Place Market, consider amendments to the Pike Place Market Historical District Design Guidelines related to the Showbox, draft legislation, conduct outreach to stakeholders, and conduct State Environmental Policy Act (SEPA) Review on permanent expansion of the Historical District, as appropriate.” In plain English, that means that the city has effectively downzoned the block on which the Showbox is located from about 450 feet to its current height of two stories on an “emergency” basis while the city decides whether to include the Showbox in the district permanently. Inclusion in the historical district means that any alterations to the building—from the tenants who occupy the first floor to the lighting and signage—will have to be approved by the historical commission that oversees the market. (Proponents have argued that this will force the Showbox to remain a music venue in perpetuity, but the city cannot legally force a private business to stay in business or renew its lease.) For now, the legislation effectively precludes demolition of the Showbox and prevents the building’s owner, Roger Forbes, from selling the property to Onni Group, the developer that wants to build a 44-story apartment tower on the site.

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In theory, the legislation provides some breathing room for the city to work out a deal to preserve the physical structure that houses the Showbox—a two-story unreinforced masonry building—while allowing Onni to build its tower on top of the venue. However, as Mosqueda acknowledged after the “this vote today makes a negotiated resolution more challenging.” Even if Onni and Forbes want to reach such a resolution, building a new tower on top of the Showbox itself may not be possible, and could be prohibitively expensive if it is. At today’s meeting, council members repeatedly cited a project built by developer Kevin Daniels that saved the now 111-year-old First United Methodist Church sanctuary on Fifth and Marion as an example of preservation that allowed a new development to co-exist with a historical structure. But that development did not involve actually placing a new building on top of the church—and it cost an estimated $40 million. (Daniels has said that from a purely financial perspective, he regrets saving the church building.)

In any case, neither Onni nor Forbes has indicated that they plan to spend tens of millions of dollars to “save” a music venue in which neither party is actually invested, in any sense of that word. Moreover, the uncertainty created by today’s legislation may lead Onni to abandon the project. That could “save” the Showbox until its lease ends in two years, but does not guarantee its continued existence; AEG, the multinational company that operates the Showbox, could decide to leave, or Forbes, the building’s owner, could decline to renew their lease or raise the rent to a  prohibitive level.

Would anyone who was at city hall today declare victory if the Showbox was “saved,” only to become a new Tom Douglas restaurant, or an actual museum? Or if it ends up sitting empty, the victim of economic forces that can’t be altered by a million signatures on change.org petitions?

Or Forbes could sue. On Sunday, the law firm that represents Forbes, Byrnes Keller Cromwell, sent a letter to city attorney Pete Holmes and council president Bruce Harrell noting that Forbes has the legal right to redevelop the Showbox property as a high-rise; in fact, the lawyers note, the city implicitly endorsed its redevelopment when it upzoned the land in both 2006 and 2016, when the zoning capacity of downtown Seattle was increased as part of the city’s Mandatory Housing Affordability program. “That zoning and up-zoning were and are entirely consistent with the City’s high-density urban plan and goal of promoting affordable housing,” the letter says. (If Onni does not move forward with its development, the city will  forego about $5 million that would have gone toward affordable housing under MHA.)

The letter continues:

As you are aware, property owners, the City and the courts all have respective rights, obligations and oversight related to the significant economic interests that arise from real property and re-zoning issues. Just this last Thursday, the State Supreme Court unanimously issued an opinion on land use rights in a case where a property owner was not given a fair opportunity to use a property. [That case upheld a decision finding that Thurston County illegally delayed the sale of a piece of land owned by the Port of Tacoma and awarded total damages of $12 million].  Of course, you know that case does not stand alone, but is part of a larger body of state and federal law addressing these kinds of significant economic and constitutional issues.

It is important for all parties involved to be heard fairly and accorded consideration and for rights to be recognized and protected. Process should be afforded and both procedural and substantive fairness observed.  We understand that a more considered  approach may be underway for the Monday, August 13, 2018, City Council meeting at which these issues are to be considered, and we sincerely appreciate a path toward working through the issues in a way that avoids unnecessary entanglements, missteps and interference with contractual and other expectations of the parties involved.

Whatever ultimately happens with the Showbox, the ramifications of today’s vote will be far-reaching. Although council member Mosqueda told me after the vote that she did not intend for the decision to set any kind of precedent, that’s exactly what it does. The council has shown that they will overturn major land-use policy decisions that took years to develop in response to concerted public pressure from vocal interest groups, without regard for whether doing so violates the spirit of prior land-use policies that resulted from lengthy, and often hard-fought, public processes. This week, it was the Showbox. Next month, it could be  an industrial business that stands in the way of a bike lane, or a single-family house whose preservation could prevent the development of dense housing in a neighborhood. For all Mosqueda’s optimism that the “Save the Showbox” crowd will turn out in the future to advocate for density all over the city, it’s important to note that council members who often advocate against density, including Lisa Herbold and Sawant, see the same people as an opportunity to advance their own anti-development agendas.

At today’s meeting, while Herbold was talking about the need to save the physical structure of the Showbox, rather than preserving its spirit by rebuilding or revamping the venue, someone shouted from the back. “The soul is in the walls, it’s in the stage, it’s in the floor!” But he was wrong.  The Showbox isn’t the Lincoln Memorial, or La Sagrada Familia, or the Louvre. Its cultural relevance comes not from the squat, architecturally unremarkable building in which it is located, but from the music that has been made, and continues to be made, inside its walls. And cultural institutions sometimes move, or are rebuilt, or even close only to reopen later in a different form. (Moe’s, a once-shuttered institution whose rebirth as Neumos helped to spur the reinvention of the Pike-Pine corridor as a nightlife district, springs to mind.) Would anyone who was at city hall today declare victory if the Showbox was “saved,” only to become a new Tom Douglas restaurant, or an actual museum? Or if it ends up sitting empty, the victim of economic forces that can’t be altered by a million signatures on change.org petitions? Twenty years ago, Liberty Lunch was replaced by a generic office building. But Austin remained a music destination, largely on the strength of the new venues that emerged on the other side of town after the Lunch shut down. Cities rarely grow and improve by preserving their culture in amber. Almost always, they do so by letting things change.