After a failed attempt to challenge the ballot title of the Compassion Seattle proposed charter amendment, local advocacy groups have filed a new legal challenge asking a judge to keep it off the ballot entirely.
The lawsuit was filed by the ACLU of Washington, the Seattle/King County Coalition on Homelessness, and the Transit Riders Union.
Both sides issued press releases today, saying the usual stuff. We’ll spare you several paragraphs of PR-speak and jump to the main question: is there any merit to the legal arguments in their complaint?
There are three principal arguments that the plaintiffs make in their complaint:
1. CA29 circumvents the “statutorily mandated, comprehensive scheme” for a statewide response to homelessness that the state Legislature enacted in the Washington Housing Opportunity Act (RCW 43.185C), and last year amended in ESSHB 1277.
3. It promises to waive the zoning code in order to expedite affordable housing development, which is impermissible in an initiative.
Let’s take these one at a time.
The Washington Housing Opportunity Act
The complaint alleges that the state Legislature granted exclusive authority to the city’s “legislative authority” to write a homeless response plan, that meets the requirements of the Department of Commerce as part of its mandated statewide homeless response plan. It cites the sections of the Act that lay out the requirements for cities to convene a task force to provide recommendations to the City Council, then for the City Council to write a five-year plan. It refers to case law that it claims held that the initiative and referendum process are not available when they would undermine a state-mandated comprehensive scheme.
Here are the problems with this argument:
- Nowhere in the act does it say that the authority lies exclusively with the “legislative authority.”
- The Act in its entirety does two things: it mandates the state Department of Commerce to write a statewide plan, and it directs the DOC to administer a grant program to counties and cities for homelessness response. And this is a critical nuance: the requirement for the city to write a five-year plan is tied to eligibility for the state grant funding. There is nothing in the Act requiring cities to participate, and if they don’t follow the mandated steps they become ineligible. They do have the option to defer to a county-wide plan, as does a county have the option to defer to city-specific plans.
- At the end of the day, there are two questions the Court will need to answer: whether anything in CA29 actually conflicts with state law, and whether it is beyond the power of a voter-approved charter amendment. The plaintiffs have not offered any evidence that CA29 prevents the City Council from convening an advisory task force or writing a five-year plan with the requirements of CA29 as a baseline, nor that any of the specific requirements (such as 2000 units of housing, or specific performance metrics) are inconsistent with the state requirements. So it’s entirely possible that CA29 could pass and the City Council can still fulfill all of its requirements under the Act and successfully receive state grant funding. Or the City could opt out of the state funding without violating the law. In either case, they haven’t made the case that CA29 is an impediment to the Washington Housing Opportunity Act.
The Regional Homeless Authority
The plaintiffs argue that CA29 circumvents the decision-making authority of the King County Regional Homeless Authority, to which the city is a party. There are two problems with that argument:
- Nothing in the interlocal agreement (ILA) establishing the Regional Homeless Authority makes it the exclusive purveyor of homeless response services in Seattle. Seattle is free to take other actions as well, so long as it lives up to its funding and other obligations in the ILA. Granted, the city is currently in the process of transferring the funding, contracts and staff from the Human Services Department’s homelessness response division to the RHA, but it isn’t transferring the Office of Housing, the lead department on affordable housing investments. And presumably if necessary the city could reconstitute other teams as necessary. It wouldn’t be efficient or optimal, but on the other hand it wouldn’t be illegal. And in fact the HOPE Team, under the current plans, might ultimately stay with the City of Seattle anyway — so there is precedent for the city continuing to have an independent role in homelessness response outside of the RHA.
- CA29 contains language explicitly in support of partnering with the RHA to deliver the commitments in the charter amendment: “The actions herein required shall be executed consistent with any plan or actions established or implemented by a regional government authority, provided that a regional plan and activities may be employed by the City to satisfy this Article IX so long as the requirements of this Article IX are satisfied.” It also says: “It is City policy to fully support, advance and invest in any regional governmental homelessness authorities. When the City works with other public and private entities to meet its obligations under this Charter Article IX it shall collaborate to ensure successful outcomes and support an innovative and effective regional service network.”
The Zoning Code
The section of CA29 in question reads (emphasis added):
“During a declared civil emergency related to homelessness, and to accelerate the production of emergency and permanent housing serving homeless individuals (“projects”) as required by this Article IX, it is City policy to and the City shall, to the full extent permitted by state law, (a) waive land use code and regulation requirements as necessary to urgently site projects, (b) waive all City project-related permitting fees for projects and, (c) process the application for project-related permits as first-in-line in order to expedite the permitting process.”
The plaintiffs argue that this is an impermissible change in zoning law, since state courts have ruled that zoning ordinances may not be passed by initiative as the state Legislature has vested the power to write a zoning code exclusively to the City Council. But there are problems with this argument too:
- It is arguably not a zoning ordinance; it is stating the city policy, and that policy is a discretionary administrative act — waiving the zoning requirements — taken by the Director of SDCI. The Director already has discretion to waive zoning requirements in many circumstances.
- CA 29 has a “saving clause” — it says that the zoning regulations should be waived “to the full extent permitted by state law”. So if courts find that it is not permitted at all, then this section becomes meaningless — but not illegal.
Now on the flip side, this particular interpretation could create a different legal issue for CA29, since it to some extent makes the charter amendment “administrative.” Courts have also previously ruled that administrative matters are not subject to initiative — though the courts have struggled to draw a clear boundary between legislative and administrative acts. The larger question as to whether CA 29 is mostly administrative is raised as an additional issue in the complaint, though not argued particularly persuasively — mostly it’s quibbling about whether it interferes with the regional homeless authority ILA. But it is potentially more pertinent to the zoning issue — and of the arguments raised it could end up being the most problematic for the charter amendment. Again, though, the “saving clause” might just save it from getting tossed.
The sponsors of the charter amendment will get their chance to respond to the plaintiffs’ allegations, and both sides will get their day in court — probably fairly quickly given the timeline for finalizing the November ballot. In all, most of the legal arguments laid out by the plaintiffs seem weak.
That doesn’t mean there aren’t real issues with the Compassion Seattle charter amendment. As SCC Insight has previously written, it is a largely unfunded mandate, and the vague wording in several places makes it unclear exactly what it will cost to implement if it becomes law. There are also legitimate questions as to whether a six-year mandate should be written into the City Charter at all, or whether charter amendments should be reserved for more permanent rulemaking. But ultimately those are questions for the voters to decide — if CA29 survives this lawsuit.
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