Sawant looks to expand sanctioned encampments and tiny house villages, but faces SEPA appeal

Over the summer, Council member Sawant has been working on a bill that would expand the city’s ability to establish additional “tiny house” villages and issue permits for more sanctioned homeless encampments. However, her bill has already been tied up in land-use bureaucracy.

The bill adjusts the regulations for permitting encampments, of both the tent- and “tiny home” based varieties. It relaxes the rules for where in the city they could be set up, and increases the maximum permitted number of encampments to 40. But since it is a land-use ordinance, it is subject to SEPA review, meaning that the city needs to fill out the SEPA checklist and either make a Determination of Non-significance (DNS), or write a full-blown SEPA Environmental Impact Statement if there are significant expected impacts.

At the beginning of August, the Council’s Central Staff issued a DNS for the proposed legislation. And Elizabeth Campbell, who is well-known for her legal challenges to the Council’s land-use actions, once again filed an appeal of the DNS with the Hearing Examiner — according to Sawant, thirteen minutes before the filing deadline. That prevents the Council from moving forward with Sawant’s bill until the Hearing Examiner rules on Campbell’s appeal.

Here’s what Sawant’s bill does:

• It exempts religious organizations from permitting requirements for encampments on property owned or controlled by them, though they are still subject to a set of safety and public health provisions.
• It allows encampments to be set up in any zone in the city, though it maintains the current prohibitions for environmentally sensitive areas. Encampments would be allowed in residential areas, and the current required 25-foot setbacks from any adjacent residential lot are removed.
• It removes the one-mile separation requirement between permitted encampments.
• It allows the city to set up an encampment on property it leases, not just property it owns. Also on property owned, leased or otherwise controlled by another public entity, such as King County or the State of Washington.
• It requires six-foot screening on all sides of the encampment, including street-side.
• It removes the two-year limit on permitting an encampment in a particular location. The city may now issue one-year permit renewals an indefinite number of times.
• It increases the allowed number of permitted encampments from three to forty — excluding encampments on property owned or controlled by religious organizations.
• The original ordinance authorizing permitted encampments is due to “sunset” on March 31, 2020. This bill would remove the sunset provision entirely.

This is the threshold question for SEPA analysis: is this legislation likely to have significant impacts on the “environment” (writ broadly)? At first glance, it would seem that the answer is yes: it dramatically expands the number of permitted encampments, and the places they can be in the city. But the city’s DNS argues to the contrary. First, it says that allowing encampments in any zone, rather than just in a short list of non-residential zones, diffuses them over a much larger part of the city and reduces the likelihood that there will be several in close proximity (amplifying their impact). It also notes that encampments must still be at least 5,000 square feet, can’t be in environmentally critical areas, and have a minimum of 100 square feet per occupant; because of that, the number of parcels of land in the city that meet the qualifications is only 1,112 (under the current rules, there are 389). And with the maximum occupancy of 100 for an encampment, the impact any one could have on transportation and public services in the vicinity is small. Also, the permitting requirements don’t allow for any permanent structures, require an operations plan and a Citizens’ Advisory Committee for each encampment, and place several other restrictions to limit the impacts to the surrounding area.

Here’s how the DNS summarizes the impacts of the proposed legislation:

The proposed code amendments would authorize transitional encampment interim uses on public or private property in all zones for a one-year term; the amendments would not authorize any permanent development.  Impacts to the natural environment are expected to be minor.  Most encampment residents are expected to utilize public transportation, and impacts on traffic and parking are not expected to be significant.  Similarly, demands for public services on a site may increase, but due to limits on numbers of encampment occupants, the one-year term of use (two-year maximum with renewal option) on any particular site, lack of permanent development, and requirements for hosting agreements with rules for behavior, these increases are not likely to be significant. For these reasons, the proposed code amendments are expected to have minimal impacts on both the natural and the built environment.

For the most part, the argument is sound. There are, however, two big issues:

1. Allowing for unlimited renewals of an encampment’s permit opens the door to an argument that they aren’t so temporary after all. The legislation doesn’t say under what conditions the city may decide not to issue or renew a permit, outside of violations of the permitting requirements. Will the city be expected to approve all permits and renewals up to the 40-site limit unless there is a clear violation? Does the Director of SDCI have discretion if the department receives complaints from neighbors, and if so, how many complaints does it need to receive (and of what severity) before it is allowed to refuse to issue a renewal? It would be very easy for this to become a system biased toward automatic renewals forever — hardly an “interim” permitted use.
2. The exemption for religious organizations is a massive loophole. According to the DNS, there are 493 sites in Seattle that are currently used by religious institutions — and if a church buys or leases a plot of land, that would immediately qualify as well. The new legislation removes the requirement that the land be an “accessory” to property currently being used for religious purposes, so any vacant lot owned by a church, anywhere in the city, will do. Also, since the legislation exempts religious organizations wholesale from the permitting process, they are also exempted from all of the requirements attached to the permit: minimum square footage, screening, location near transit, an operations plan, etc. (to be clear, there are still some requirements on religious organizations’ encampments). It’s also unclear how the city would deal with a problematic encampment on church property, since it can’t threaten to revoke a permit that doesn’t exist and isn’t required. And perhaps more significantly, religious organizations are not counted toward the 40-encampment maximum: there is no limit to how many encampments religious organizations can host on property they own or control, for as long as they want. Despite this, the DNS focuses almost entirely on permitted encampments, and says almost nothing about the potential impacts of encampments hosted by religious organizations outside the permitting process.

Campbell’s appeal of the DNS is poorly written (she clearly wrote it herself, no surprise since she’s having trouble retaining her attorneys), and consistent with her previous appeals attempts to throw everything but the kitchen sink at the DNS in the hope that something will stick. But it does touch on both of the two issues above, and either of them could justify a finding by the Hearing Examiner that either the DNS finding is inaccurate, or the city needs to do a full-blown EIS study.

On the other hand, it’s also possible that Campbell will make fatal procedural mistakes and her appeal will be dismissed before the Hearing Examiner needs to make a decision. There have been plenty of signs over the past year that the Hearing Examiner is tiring of her antics and procedural delays; if his patience runs too thin, this may be over quickly. Filing the initial appeal was the easy part for her to do pro se; it will get much more difficult when she must file her full brief on the merits of her case in the coming weeks, and even more so when the city starts filing motions to dismiss all or part of her appeal on legal grounds.

It’s also worth pointing out that the Council hasn’t held a hearing on Sawant’s proposed bill yet, so we have no idea how many of her colleagues support it — either in principle, or in the details as she has defined them. It may be that the bill will be DOA, or that there will be significant changes before it ever sees the light of day.

On a not unrelated note, tomorrow morning the Council will be discussing a bill intended to curtail the abuse of SEPA regulations to hinder (or simply delay) changes to land-use regulations and development projects. Largely the bill aligns the city’s laws with recent changes in state law to prevent SEPA abuse.

But for now, much to Sawant’s chagrin, her bill is on hold while the appeal runs its course. It’s unlikely to be resolved before the end of the month when the Council sets aside other work to focus on the 2020 budget. There’s a decent chance that the Hearing Examiner may rule before the budget is done, and if that ruling goes in Sawant’s favor then she can try to push the bill through in the first three weeks of December before the Council recesses for the holidays. But if the SEPA appeal drags out into 2020, then the fate of the bill may depend on an entirely different question: whether Sawant gets reelected in November.