Expansion of backyard cottages gets kicked back for more work

On By In zoning

This morning the city’s Office of the Hearing Examiner issued a long-awaited ruling on the Queen Anne Community Council’s appeal of a proposed ordinance relaxing the rules on “backyard cottages.” And it wasn’t good news for the city.

The Queen Anne Community Council filed its appeal back in June, claiming that the Office of Planning and Community Development (OPCD) erred in its Determination of Nonsignificance for the ordinance because of the manner in which it conducted the SEPA review for the project.

SEPA requires that an Environmental Checklist be completed for the proposed legislation, and under some circumstances a full Environmental Impact Statement (EIS) if the proposal is “likely to have a probably significant adverse environmental impact.”  OPCD concluded that because the legislation isn’t a “project” in itself, and because in its estimation the impacts were minimal, it didn’t trigger an EIS. It quickly issued a Determination of Nonsignificance that allowed the bill to move forward. But the QACC claims that OPCD’s SEPA review process was flawed in several ways, and in fact a full EIS is required.

The standard for overturning a Determination of Nonsignificance relies upon proving that it was “clearly erroneous.” OPCD was required to do two things in its SEPA review:

  • demonstrate that “environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA;”
  • decide to issue the DNS based on “information sufficient to evaluate the proposal’s environmental impact.”

QACC needed to present evidence showing that OPCD failed to meet either or both of these requirements. And they did, according to the Hearing Examiner.

The Hearing Examiner dismissed many of QACC’s claims early on, and in the final decision dismisses more of them. But she found compelling evidence that OPCD did make several mistakes in its SEPA review.

First, the OPCD staff who worked on the legislation also did the SEPA review.  Seattle Municipal Code explicitly says:

Whenever possible, agency people carrying out SEPA procedures should be different from agency people making the proposal.

OPCD is a large enough organization that it easily could have assigned other personnel to do the SEPA review. Further exacerbating the issue, QACC presented in evidence OPCD’s own internal emails that showed that their staff were vocal advocates for the legislation — including the staff doing the SEPA review.  The Hearing Examiner agreed that OPCD erred here, but concluded that this mistake alone was not sufficient to overturn OPCD’s Determination of Nonsignificance (meaning an EIS is not required).

The Hearing Examiner also found that OPCD did not sufficiently consider the adverse impacts of the legislation on housing in single-family neighborhoods that would cause displacement. Specifically, QACC presented evidence that the combination of allowing both an ADU and a DADU on the same property and relaxing the requirement for owner-occupancy, would allow for creation of lots in single-family zones with three separate rentable units. It would also increase the value of such properties by up to 20%, further encouraging both direct displacement (where a property is sold to a developer) and indirect displacement (where the increasing property values make it unaffordable for existing residents). OPCD based its economic predictions of ADU and DADU construction based upon the existing economic model, not the new one in the proposed legislation. Part of this, of course, is a debate about whether the changes in the legislation do, in fact, create a new economic model, and the Hearing Examiner agreed with QACC that they do.

QACC also argued successfully that OPCD “failed to consider the proposal’s impacts on height, bulk and scale and that the DNS and Checklist do not accurately represent the magnitude of development allowed by the proposed legislation.” In essence, OPCD cherry-picked a couple of illustrations of what would be allowed under the new legislation that understated the true impact. They didn’t provide illustrations of what could potentially happen to an entire block, or of larger DADUs on lots less than 5000 square feet (which the new legislation allows for).

The Hearing Examiner also found OPCD’s analysis of parking impacts to be inadequate, with “no citation to any studies or other objective data as the basis for the conclusion that parking impacts would be minor.” She also faulted OPCD for not even bothering to consult with the city’s own transportation planner in the Department of Construction and Inspections.

Finally, the Hearing Examiner faulted OPCD’s analysis of impacts on public services and facilities, including roads, utilities, and the stormwater system. OPCD drew its conclusions based upon the current dispersion of ADUs and DADUs around the city, rather than what the new proposal might cause. OPCD also argued that since the new proposal would maintain the current limit of 8 people living on a lot (across the main residence, the ADU and the DADU), it would not increase demands on public services and facilities. But the Hearing Examiner noted that few single-family lots today actually have eight residents, so that logic doesn’t count for the real potential for increases in occupancy. “There is no information in the record to indicate whether or not they are sized to support the likely increase in density, and attendant increase in impermeable surfaces, that would result from the proposed ordinance.”

Given these conclusions, the Hearing Examiner reversed the Determination of Nonsignificance and ordered OPCD to prepare an EIS.  This doesn’t kill the backyard cottage ordinance, though it delays it for several months until the EIS is completed. In addition, the city will need to mitigate any significant impacts that are documented in the EIS as part of adopting the ordinance.

More significantly, the Hearing Examiner’s finding is a stinging rebuke for OPCD and its new Director, Sam Assefa. It clearly points to sloppy, biased work within the department.

In an interview this afternoon Council member Rob Johnson, who chairs the committee that oversees OPCD, quickly came to OPCD’s defense. While admitting that the agency had made mistakes in the SEPA review, he noted that the Hearing Examiner overturning an OPCD action was a rare exception — Johnson said it was the first instance “in a long time.” Nevertheless, “Sam and I need to have a conversation about the training his staff are getting on this sort of thing.” But for the most part, Johnson is looking to the future, saying “We’ll correct the mistakes and move forward.” He expects it will take about a year to complete the EIS, and if all goes well he hopes that the Council will be able to take up the proposed ordinance in early 2018.

15 comments

  1. Rob Johnston;s statement that “the Hearing Examiner overturning an OPCD action was a rare exception” makes me wonder how often has an OPCD action been appealed? It might be valid statement, but I wonder if there have been many appeals in the first place. Overall, this highlights a problem within our city government, which is lack of oversight of both the city agencies and the council.

  2. Thanks for excellent coverage of today’s decision. One note, concerning: “In addition, the city will need to mitigate any significant impacts that are documented in the EIS as part of adopting the ordinance.”

    That statement is not totally accurate. SEPA does not *require* the city to mitigate identified impacts. SEPA merely requires that the impacts be identified so the council and the public will know the tradeoffs. SEPA is largely a procedural disclosure statute; what lawyers and land use junkies call “substantive SEPA” does not require the city to do anything.

    Substantive SEPA (RCW 43.21C.060) does *authorize* the city to mitigate projects and deny permits outright based on identified impacts IF there is a specific policy in the code that provides for it, AND if the city chooses to exercise that authority. Both the SEPA code listing of specific policies allowing the city to require mitigation, or to deny permits outright, and the city’s political will to do either, are at present largely jello (little actionable content and no spine).

    For example, in 2010, as part of the code change that eliminated the requirement that parking spaces are required in urban villages near “frequent transit service” (poorly defined), the SEPA code was changed to *eliminate* the city’s authority to mitigate for identified adverse parking impacts.

    So, even if a project results in residents having to carry their groceries home five blocks up hill because parking close to home is over saturated (actual situation!), the council has removed from OPCD and DCI any authority to require mitigation of any kind. Even if they wanted to.

    Today’s decision is an acknowledgement by Hearing Examiner Sue Tanner that our City government is not very democratic regarding land use planning and decisions. Councilman Johnson’s comment about today’s ruling being a “long time” coming is accurate. Maybe Mr. Johnson should pay more attention to the meaning and implications of today’s ruling as he pushes forward with the EIS for the HALA driven city-wide up zones (MHA-R).

  3. “Height bulk and scale” is the new “whites only”

    Disgraceful, but not surprising, to see this seemingly progressive city bow down to racism and white privilege in the age of Trump.

    1. I don’t think it’s fair to characterize this as the hearing examiner “bowing down.” She agreed with the QACC that OPCD impermissibly cut corners on the SEPA review. That doesn’t mean she agrees with QACC’s views on the appropriateness of the ordinance. The law specifies the process that the agency is supposed to follow, and they didn’t do it. OPCD will go back and do the SEPA review correctly, which will take about a year, and then the City Council will approve the ordinance having been fully informed first as SEPA requires. The government must be held accountable to the rule of law; they don’t get to ignore those laws that they think are pesky or cumbersome. SEPA also stops the government from trashing the environment, it’s not just a thing that gets in the way of development. The SEPA law specifies when it must be applied, and public officials must do so faithfully.

  4. Clarification questions…
    1. It sounds like this ordinance changes all Seattle SFR zoning to MFR zoning by allowing 3 dwelling units (an attached ADU and a detached dwelling) on existing SFR properties and the property owner does not need to occupy any of the units after 6 months of renting any of the units (ie the ADU and/or the detached dwelling) ?
    2. Link to actual ordinance document ?
    Thank you.

      1. Thank you much for the info and the update re the committee mtg !
        With that in mind, if possible, where would the best place to send concerns/suggestions to the ‘committee’ (hopefully online, and how to do that) and would there be another helpful person/org to also send ?
        Thanks again for the help.

  5. Now, instead of paced infill, and an opportunity for middles class homeowners to capitalize on their long term investments; they will likely just sell to the highest builder, who will max out allowable lot coverage, without adding any more living units.
    The hysteria that developers or Chinese investors will roll into town to gobble up modest homes and add a modest cottages or basement apartment on them, for profit, is ludicrous.
    These new rules were the bedrock of a retirement plan for two former hospice nurses in my neighborhood. A plan whereby they could hold on to their Seattle home, while being able to afford some traveling in their golden years.
    They would, by far, be the norm in the DADU demographic.
    But, the rich win again…

    1. I think you’re overstating the results of what happened yesterday. QACC won a battle, but they’re still going to lose the war. The hearing examiner dismissed their many of their outrageous claims; what she sustained was that OPCD did, in fact, screw up its SEPA review of the proposed ordinance. It’s not OK for the government to do that, even when we might like the outcome and dislike the group complaining about it. OK, so it got delayed for a year. That’s disappointing, but in the larger scheme of trying to make housing more affordable, this was never a major factor. And it didn’t get killed; it will still eventually go forward, where it has strong support in the City Council.

      1. “QACC won a battle, but they’re still going to lose the war.”

        Why do you pose the issue as a violent either:or matter? As Roger Pence posted on another media comment thread:

        RDPence
        This didn’t have to happen this way. I was at both of the City’s well-attended public forums on ADUs and DADUs last winter, and there was much interest in loosening the regulations. Lots of questions, all of which were thoughtfully answered by Councilmember O’Brien and department staffer Nick Welch. Little outright opposition was heard.

        I was fully expecting the City to take this good feedback from the public and come up with a proposal — and then take that proposal back to another round of public forums. “Did we get this right?” is a useful question to ask the citizenry once in a while. But for reasons unknown, that didn’t happen.

        They didn’t get it right; they overreached. And with no public forums for people to express themselves, the appeal to the Hearing Examiner should’ve been no surprise.

        Public engagement is not “one and done.” The City had an opportunity to work with people to develop a good and effective proposal, one that would not have been appealed, but they muffed it.

        —
        louploup again (Toby Thaler): Councilmember O’Brien has been told repeatedly that the owner occupancy requirement should be removed if he wanted to reduce opposition. He refused to do so. It would help if Mike learned the art of diplomacy and negotiation; solutions based on either:or (“my way or the highway”) are rarely well received.

        1. I’m not posing it as either violent or either:or. There are wars of words as well as wars of acts. There are clearly opposing sides on whether this is a good idea in general, as well as on specific points.

          I’ve also been very clear that OPCD screwed this up and is now paying the price for it. But nothing in the hearing examiner’s ruling yesterday will prevent the ordinance from eventually moving forward. It still needs to run the gauntlet of the City Council and will no doubt see some amendments in that process, but the long-term outcome probably won’t change dramatically.

          Also, to be clear, I’m not picking a side here. I personally have no opinion on this ordinance.

          1. You did state your opinion, “QACC won a battle, but they’re still going to lose the war.”

          2. That’s my opinion on how this will play out — not my opinion on who is right and who is wrong, or who should win. The hearing examiner told OPCD to do the EIS, but the EIS won’t stop the legislation from going forward. It will just slow it down by up to a year, and possibly force a few tweaks.

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