Afternoon Crank: Density Opponents Sharpen Their Pencils, City Seeks Consultant for Quick-Turnaround Showbox Review

1. As the city council begins what could—could—be the final round of discussions about the Mandatory Housing Affordability proposal (the plan, in the works for two years now, would upzone 6 percent of the city’s exclusive single-family areas and require developers to fund new affordable housing), density opponents are sharpening their pencils.

The Seattle Coalition for Affordability, Livability, and Equity (SCALE), which blocked the plan for a year with environmental appeals, produced a list of proposed amendments to the plan that would effectively gut the proposal, by forcing the city to charge developers to pay new “impact fees” to offset the perceived negative impacts of new housing, instituting minimum parking requirements for new developments, quadrupling the fees developers would pay toward affordable housing under the ordinance, and rolling back many of the zoning changes entirely.

The proposed amendments include things like increasing tree canopy requirements (thereby reducing development capacity) in low-income neighborhoods; changing the definition of “family-sized” housing to exclude two-bedroom apartments; requiring large open spaces or even yards for new multifamily developments; and reducing the MHA rezones to reflect the affordable housing targets in existing neighborhood plans, which did not contemplate the massive population growth nor the rise in inequality that Seattle has experienced over the last ten years.

SCALE’s Toby Thaler, who argued the group’s case against MHA before the city hearing examiner, did not respond to an email with questions about the document. While some of the amendments the group is proposing are obviously fanciful—no one is seriously talking, for example, about blowing up the “Grand Bargain” with developers by requiring them to fulfill 50 percent of their affordability requirements with on-site housing—they could serve as a kind of Overton window (or, if you prefer, opening gambit) for the upcoming discussion about neighborhood-specific changes to the plan, which begins next week.

Housing advocates will want to keep an eye out for what citywide and block-by-block changes council members (and Mayor Jenny Durkan) propose, and whether those changes track with the proposals put forward by SCALE. (The amendments aren’t available yet, but I’ll post about them as soon as they are.) Durkan has said in the past that she believes “neighborhoods” should have more input into the city’s development decisions; whether that means acceding to homeowner advocates’ demands during the final stretch of the MHA debate will become clear in the coming weeks.

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2. The city will spend $75,000 this year (of $100,000 allocated in last year’s budget) on a contractor who will advise the mayor and council on whether the Showbox should become a permanent part of the Pike Place Market Historical District. According to the scope of work for the contract, obtained through a public records request, the contractor will “Review the historic significance of the Showbox theater, study the relationship between the Showbox theater and the Pike Place Market, consider amendments to the PPMHD Design Guidelines related to the Showbox theater, draft legislation, conduct outreach to stakeholders, and conduct State Environmental Policy Act (SEPA) review on permanent expansion of the Historical District, as appropriate.” According to a spokeswoman with the city’s Department of Neighborhoods, DON has not chosen a consultant yet, but remains on the schedule outlined in the work plan.

The contractor will have to get all that work done quickly; the city’s schedule calls for any SEPA findings to be published in March, with all the work wrapping up in April, and a council vote to permanently expand the historical district in June. Two to three months is a remarkably short time frame for a single contractor to conduct a full public outreach process, do a thorough environmental review, and draft legislation for the council to consider and pass. To put this timeline in historical context, the Market Historical District has been expanded twice before: Once, in 1986, to include Victor Steinbrueck Park, and again in 1989, to add a parking garage and senior housing. Seattle Times archives show that the debate over the latter addition lasted more than three years, and archival records at the city clerk’s office show that the council was receiving letters on the draft legislation fully nine months before they adopted the expansion.

Under the city’s current schedule, the Showbox building would become a permanent part of Pike Place Market three months before a trial is scheduled to begin in a lawsuit the property owners filed against the city; that suit charges that the city violated the Appearance of Fairness Doctrine, which requires council members to remain neutral on so-called quasi-judicial decisions like historic district boundary expansions, as well as the owners’ First Amendment and due process rights.

The debate over the Showbox’s fate began when a developer, Vancouver-based Onni, filed plans to build a 44-story apartment building on the property, which the council had recently rezoned to allow just such a development. The Showbox itself is owned by Anschutz Entertainment Group, and is a tenant in the building, which is owned by strip club magnate Roger Forbes; AEG’s lease expires in 2021.

3. After pushback over the fact that its original “service area” was confined almost exclusively to  neighborhoods north of I-90 (including many north of the Ship Canal), Uber announced today that its JUMP bikes will be available in South and West Seattle. The company, which launched its bikesharing service in Seattle late last year, got some bad press last week when the Seattle Times reported that riders who left bikes outside the service area could be charged $25. (An Uber spokesman says the company has not imposed the fee on any riders.) Lime Bikes, Uber’s competitor, launched citywide in the summer of 2017.

The red outline on this map shows the new service area, which includes three of four “equity areas” (low-income communities and communities of color) designated by the city. The original, blue-outlined area included just one of the equity areas, which includes the Central District and a sliver of South Seattle that extends down to the Mount Baker light rail station.

This is hardly the first time a “sharing economy” company has decided to serve the wealthier, whiter areas of the city first. Six years ago, Car2Go launched with a service area that excluded the entire South End and West Seattle while serving areas as far north as Bitter Lake.

Showbox Property Owners Respond to City, Seek Depositions from Council Members Bagshaw, Sawant

A lot has happened since I wrote about the city’s response to a lawsuit by the owners of the Showbox last month. (The lawsuit, in very brief, alleges that the city council violated land use processes in spot-downzoning the Showbox property when they expanded the Pike Place Market Historical District to include the property on a temporary basis, preventing a 44-story development, and that the historic designation represents a taking of about $40 million—the amount for which the owner, Roger Forbes, planned to sell the land to the Vancouver developer Onni.)

Back in September, the city asked a King County Superior Court judge to dismiss Forbes’s land use claims claims (technically,  an LLC created by Forbes that owns the property, but we’ll stick with Forbes for clarity’s sake) on the grounds that Onni hadn’t formally sought any permits from the city, that inclusion in the historic district didn’t constitute a land use decision restricting how Forbes could use his property,  and that in fact nothing in the “Save the Showbox” legislation said that the Showbox must be saved.

The property owners—sounding spitting mad—filed a brief last week objecting to the city’s motion to dismiss the land use claims in the lawsuit, arguing that the decision to add the Showbox property, and only that property, to the historic district—effectively reducing its development potential from 44 stories to two—constituted a “reverse spot zone” and therefore was a “classic taking.” In their defense, they cite a number of cases that reducing the height of what can be built on one piece of land is considered a zoning decision, regardless of whether a permit has been filed. (The council made it much less likely that Onni would file a permit when they started talking about killing the development immediately after the developer started a pre-application process with the city, and passed fast-track “emergency” legislation barely one week later to ensure that Onni couldn’t go forward with its plans.)

Violating almost all of its own rules for a property use decision, the City enacted an “emergency” ordinance – not to abate a public nuisance – but rather because it wanted a private music venue to be an asset of the City. To try and accomplish that, it had to circumvent and carve this parcel – and only this parcel – out of its own prior and lawful zoning actions that previously upzoned the property and surrounding properties twice for high-rise development. The most recent upzone occurred just last year when the property (and other similarly situated properties) were upzoned by the City to allow additional floors if property owners provided certain financial support to the City’s efforts to increase affordable housing. The City’s reverse spot zoning of this property, stripping only this property of the same development potential similarly situated parcels enjoy, was not an exercise of “police power” to protect the public. It was instead an eminent domain powerplay to appease a vocal “Save the Showbox” group at the expense of a single property’s development and use rights.

Forbes’ attorneys also lays out the case that the city violated the state 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. If the court finds that they did, it will mean that all the public hearings and rallies and open discussions about the need to “Save the Showbox” as a music venue in  perpetuity will have happened in violation of the law.

The response to the city makes one novel point: The Pike Place Market Historical District was not only created to protect small farmers and craftspeople from commercial development in the 1970s, it was formed by the city under the power of eminent domain—and, to this day, almost every single property in the district is publicly owned by the Pike Place Market Public Development Authority. That PDA has the right to regulate virtually every aspect of all businesses in the district, down to which tenants are allowed in each building, the size and materials on their signage, and what their storefronts look like on the inside. The Showbox building across the street, in contrast, is privately owned, making its inclusion in the historic district, the plaintiffs argue, even more of a taking than if the city had simply said Forbes couldn’t sell to a developer for an apartment tower.

This week, Forbes’ attorneys also filed a request to depose five city officials, including city council members Sally Bagshaw and Kshama Sawant, to get “information about the decision to single out this property, and only this property, for inclusion in the Pike Place Market Historical District, the process that the City employed in drafting, introducing and passing the ordinance, and the City’s real intentions in passing the ordinance (to maintain the property as a music venue in perpetuity).

“This information,” the request continues, “is relevant to Plaintiff’s contentions that the ordinance is invalid as an illegal spot zone, is otherwise procedurally invalid, was improperly passed because the Council violated the Appearance of Fairness statute, and violates Plaintiff’s First Amendment rights by forcing Plaintiff to maintain the property as a music venue.”

The hearing on that motion will be held next Friday, October 19. The trial is currently scheduled for February.

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