Council passes “city-wide” MHA legislation

This afternoon, after years of work, the City Council gave final approval to the “city-wide” MHA legislation, which upzoned and applied affordable-housing requirements in the city’s urban villages .

As expected, Council member Johnson who represents District 4, offered an amendment that removed “The Ave” in the University District from the legislation. That amendment was adopted unanimously by the Council, which in the coming weeks will consider those changes in a separate bill. The reason for the delay is so that the merchants in the area can complete their “small business vulnerability study,” hopefully informing the final upzones enacted.

The Council also adopted a companion resolution, with a long list of additional commitments it is making to the city and individual neighborhoods as part of the MHA process.

There was over an hour of speeches (after nearly an hour of public comment), as all nine Council members took the opportunity to thank all the people who had a part in the legislation and to highlight how the final bill reflects their legislative priorities. Council member Sawant was the lone sour note in what was otherwise an MHA love-fest, noting that she was voting for MHA because she is pro-density, but also that the affordable housing requirements in the MHA legislation are not sufficient on their own to solve Seattle’s affordable housing crisis. She also reiterated her perennial call for rent control and more social housing.

Mayor Durkan quickly issued a statement praising the Council for passing the legislation into law.

The Council also issued a press release after passage of the MHA bill.

Before you get too excited, here’s the bad news: the legislation is all but assured to be challenged in court. Last December, when the Office of the Hearing Examiner made its final determination that the SEPA analysis of the legislation’s impacts was sufficient (except for historical resources, which was addressed in a separate supplemental EIS earlier this year), he made it clear that under state law, any further judicial appeals of the Hearing Examiner’s ruling needed to be connected with a specific government action — such as the passing of the underlying MHA legislation. Now that legislation has passed, it’s fair game for a variety of legal challenges: to the sufficiency of the SEPA analysis, to the zoning changes, as well as whether the MHA requirements are a prohibited government “taking” without due process or appropriate compensation. Several neighborhood organizations have already been fundraising to cover the legal costs of a court challenge.

In the short term, the question then becomes whether a judge will issue a preliminary injunction preventing implementation of the MHA ordinance — and if so, whether it applies to the entire ordinance or just the part that is challenged (for example, the affordable housing requirements). The Council anticipated that a court might either enjoin or strike down the requirements, leaving intact the upzones that were intended to be the “payment” for affordable housing. They wrote into the legislation a statement about what they would do in that situation to prevent developers from reaping all of the benefits of the legislation without paying the price:

Section 124. The City Council expresses the following intent as to future actions related to this ordinance. The Council is enacting the rezones effected by Section 1 of this ordinance based on an expectation that those rezones are accompanied by requirements to provide a substantial amount of affordable housing. If the imposition of requirements under Chapter 23.58C of the Seattle Municipal Code as contemplated by this ordinance is determined to be unlawful, it is the Council’s intent to (1) implement an alternative approach, in connection with some or all of the development capacity provided by the rezones effected by Section 1 of this ordinance, resulting in provision of a substantial amount of affordable housing; (2) take steps to prevent the continuance of the new zoning and increased development capacity in the absence of substantial affordable housing requirements by repealing the rezones effected by Section 1 of this ordinance; and/or (3) take other actions, including a moratorium on some or all development, while an alternative approach is implemented.

The legislation take effect 30 days after the Mayor signs it into law (which will likely happen later this week). Since the MHA opponents have had months to prepare, don’t be surprised if the first lawsuits get filed immediately after it takes effect.  And given the trial and appeals court processes, it’s likely to be 2020 at the earliest before the MHA legislation gets a clear path forward for implementation.