In the waning days of Mayor Durkan’s term as Mayor, her office is driving a rezone of a property in the Interbay industrial zone to allow the Seattle Storm to realize their years-long goal of building a practice facility there. There are only three problems with her plan: it isn’t legal; it places her in violation of the city’s ethics code; and it flies in the face of the substantial efforts to stop the continual paring-down of pieces of Seattle industrial lands — including one effort that Durkan herself commissioned.
The property in question is 1616 West Bertona Street, a 51,000 square foot lot currently fenced off and being operated as a vehicle storage facility. The lot happens to be right across the street from the offices of the Seattle Storm. The property belongs to Storm co-owner Ginny Gilder through her investment company, Gilder for Growth, and a complicated ladder of shell companies. Since Gilder acquired it in 2011, she has tried several times, and through several methods, to build a Storm practice facility there, but has repeatedly been blocked by zoning restrictions. The property is zoned for general industrial uses, which would allow for a sports/recreation facility up to 10,000 square feet; shortly after buying the property Gilder filed construction and master use permit applications to build and operate just such a 10,000 square foot sports facility there, with another 10,000 square feet of associated uses, but the project never went forward (perhaps because they realized it would be too small for their needs) and the permit applications were cancelled in 2015. The following year, in 2012, Gilder filed the first of several attempts to change the Seattle Comprehensive Plan’s Future Land Use Map (aka the FLUM) to allow the site to be rezoned to “mixed use/commercial,” which would have allowed her to build a larger sports practice facility there (as the Kraken have done in Northgate’s mixed use/commercial zone). Both the Seattle Planning Commission and the Department of Construction and Inspections (SDCI) recommended that Gilder’s application be denied, citing the broadly recognized need for a comprehensive review of future planning for the city’s industrial areas; the City Council took their advice and did not move the application forward for consideration. Gilder re-filed essentially the same application several times in the ensuing years up through 2017, with the same result. This is not surprising; in addition to the larger issues with preserving industrial lands, the city discourages using the FLUM to make small changes to zoning.
And yet Gilder and the Storm never dropped the idea. According to an OPCD Director’s Report written in July of this year, the Storm “has expressed interest to the City in funding and building its own practice facility.”
The Mayor’s Office directed OPCD last spring to move forward a proposal for a rezoning that would finally allow the facility to be built — not through the Comprehensive Plan, but instead as a direct rezone ordinance. According to a city spokesperson, OPCD took up that direction and with the cooperation of “a number of people on the policy and operations teams” in the Mayor’s office, drafted a bill to send to the City Council that would do just that. That bill is now pending before the Council, and is up for deliberation this week.
There’s a name for that sort of proposal: a “spot rezone.” It’s when the city makes a change to the zoning designation in a small area for the benefit (or in rare cases the detriment) of a particular land owner. Courts have consistently found spot rezones to be illegal when they meet the following four criteria:
- The area is small compared to districts surrounding the parcel in question.
- The new district allows land uses inconsistent with those allowed in the vicinity.
- The spot zone would confer a special benefit on the individual property owner not commonly enjoyed by the owners of similar property.
- The existence of the spot zone conflicts with the policies in the text of the master plan and the future land use map.
There are legal alternatives to a spot rezone. In some cases the Director of SDCI may have authority to administratively grant an exception to the zoning for a non-conforming use, but in most cases it requires a “contract rezone.” A property owner may apply for a contract rezone, in which they ask for a zoning change to accompany a specific planned project. Contract rezones usually require the owner to sign a Property Use and Development Agreement (or PUDA), placing specific restrictions on the project to minimize the impacts on the surrounding area that relaxing zoning restrictions might create. And contract rezones are quasi-judicial processes that require the City Council to determine whether granting the rezone is in the public’s best interest (and sometimes the PUDA contains other conditions to ensure that the project is in the public’s best interest).
Moreover, contract rezones place the burden on the property owner to run the gauntlet of SEPA review and clearance. That can be an expensive, complex and political process. Also, the detailed standard that a property owner must meet under SEPA for a “project” review can be more challenging than the broader, more high-level standard the city would be required to meet for a “non-project” review, one not attached to a specific construction plan. So having the city push through a rezone on behalf of Gilder and the Storm not only saves them time, money and expense, but likely improves the odds of running the SEPA gauntlet successfully (and for the record, here is the SEPA checklist and “determination of non-significance” that SDCI filed for this proposed rezone). That doesn’t mean that post-rezone the construction of a sports practice facility for the Storm wouldn’t need to deal with a SEPA review; it probably still would, but it would be easier since it would be a use that conforms to the existing zoning, and it could point to the city’s prior SEPA review.
On the other hand, using a contract rezone would force the Storm to be very specific about what they intend to build at the site, which would help the City Council understand whether it is truly in the public’s interest. Some of the documents vaguely discuss the possibility that an indoor practice facility could supplement existing nearby parks and athletic fields, but that is all theoretical until there is a design. And a contract rezone application, with a corresponding PUDA, could commit the Storm to actually making their practice facility (or some part of it) open to the public, as the Kraken have done. A spot rezone, however, gives away all of the city’s leverage; once the property is rezoned, the Storm can build and operate whatever they like as long as it conforms to the zoning code.
But even if it’s understandable why it’s much better for the Storm if the city proposes the rezone of 1616 West Bertona instead of if Gilder applies for a contract rezone, the proposal on the table is still an illegal spot rezone — though OPCD and the Mayor’s Office went to substantial effort to make it look like it wasn’t one. A typical spot rezone names a specific parcel for a change in zoning; this one does not. Rather, it changes the rules for industrial zones across the city. Or at least it appears to do so on the surface; the fine print tells a different story. The proposed zoning change increases the maximum size of a sports and recreational facility in a general industrial zone from 10,000 square feet to 50,000, but only for those parcels that meet all of the following conditions:
- Located in the Ballard Interbay Northend Manufacturing Industrial Center (BINMIC);
- Located 500 feet or more from a shoreline;
- Located within 300 feet of land zoned either Neighborhood Commercial or Seattle Mixed;
- Located within 1/4 mile of a public park with active recreation use such as sports fields or sports courts; and
- Not located within 1 mile of another indoor sports and recreation use in the BINMIC that exceeds 25,000 square feet in size.
By OPCD’s analysis, there are only three small areas, a total of 45 parcels, that meet all of these conditions. One area is in the middle of the Burlington Northern-Santa Fe rail yard and is out of the question for building a practice facility. One is a tiny slice up in Ballard, where the largest parcel is 20,000 square feet and nearly all the rest are 5,000 or less. And the third — you guessed it — contains 1616 West Bertona Street. Also, the three locations are close enough to each other that as soon as one such sports practice facility is built, under rule 5 above it will be prohibited to build any more. So while this reads like a broad rezoning, it was carefully designed (and the quantitative restrictions were tuned) to allow exactly one sports practice facility, on a property where the owner has already expressed a clear intent to build one. That’s a spot rezone, and it’s illegal.
The second problem for the Mayor is that pushing this through is a violation of the city employee Code of Ethics, Seattle Municipal Code 4.16. It says that it is an improper use of one’s position to:
1. Use or attempt to use his or her official position for a purpose that is, or would to a reasonable person appear to be, primarily for the private benefit of the covered individual or any other person, rather than primarily for the benefit of the City, except as permitted by Section 4.16.071;
2. Use or attempt to use, or permit the use of any City funds, property, or personnel, for a purpose which is, or to a reasonable person would appear to be, for other than a City purpose, except as permitted by Section 4.16.071;
3. Except in the course of official duties, assist any person in any matter involving the covered individual’s department; provided, further, that except in the course of official duties, a covered individual in the Mayor’s office or the legislative department may not assist any person in any matter.
The extent to which the authors of the documents related to this proposed rezone bend over backwards to hint but avoid explicitly saying that this is being done to benefit the Seattle Storm is comical. The OPCD Director’s Report accompanying the legislation says:
Examples of the type of sports courts that could be created that would typically exceed 10,000 sq. ft. and be less than 50,000 sq. ft. include basketball/volleyball gyms, indoor soccer fields, indoor hockey rink, bowling alley, etc. One potential entity that could apply to construct an indoor sports and recreation facility is the Seattle Storm professional women’s basketball team. The Seattle Storm has expressed interest to the City in funding and building its own practice facility. The Storm is one of Seattle’s most accomplished professional sports teams of all time and provides a model of success for athletes of all ages including girls and boys. Several of Seattle’s men’s professional sports teams have been supported directly by the City, County, and State to construct expensive new stadiums.
The Summary and Fiscal Report for the bill reads:
This legislation could provide for the creation of one or more indoor sports and recreation facilities that have the potential for supporting sports activities that have important cultural connection in the BIPOC community. For example, over 70% of the players in the Women’s National Basketball Association are Black women and the Seattle Storm provides a model of success for community members, including girls and boys.
And even the bill itself says:
WHEREAS, indoor sports and recreation facilities are venues that provide opportunities to community members for recreation, health, and community-building, and can support the space needs of organizations that provide a cultural value to Seattle;
The Director’s Report also includes a tortured attempt to explain why a sports facility in the middle of an industrial zone is really a compatible use. Mostly, though, it reinforces how the five attached conditions were intended to limit the proliferation of sports facilities in the BINMIC to just one — and in so doing it confirms that the effort is indeed intended to be a spot rezone.
Ginny Gilder stands to profit substantially from this rezone. According to King County property tax records, she bought the property in 2011 for $1.75 million, when its appraised value was $2.8 million. Today, as an unimproved vehicle-storage lot, it’s worth almost $4.6 million — and rezoning it to allow the only large indoor sports facility in the BINMIC will substantially increase that value beyond where it currently sits.
The third problem with this spot rezone is that it contradicts the choir of voices calling for a stop to any further reductions to Seattle’ industrial lands. That includes the Industrial and Maritime Strategy Council that the Mayor herself convened in November 2019, and that issued its recommendations just three months ago, including “Strengthen protections for industrially zoned lands within Seattle by establishing higher threshold to remove industrial land designations and closing loopholes that have allowed significant non-industrial development within industrially zoned lands.” The Seattle Planning Commission said the same thing. And then less than three weeks ago the OPCD Director issued his own recommendations on industrial zone land use code changes, repeating the Strategy Council’s words above. OPCD’s current proposal focuses specifically on curtailing large retail, office and self-storage developments as a first step, but it also speaks to larger efforts underway to stop the proliferation of non-industrial uses in Seattle’s industrial zones.
You can love the Seattle Storm — and certainly most of us do — and still recognize that this is wrong. This should be done through a contract rezone, transparent and above the table. That is in effect what happened with Chris Hansen and his attempt to get a street vacation in SODO for an NBA arena, as well as with the Key Arena renovation deal. It doesn’t preclude the Storm getting a sweet deal, and our champion WNBA team deserves one just as much as the Mariners, the Seahawks, and the Kraken. The Mayor and the City Council can deliberate on what they believe is in the best interest of the city with regard to both the Storm and Seattle’s industrial lands, and cut a deal they believe is fitting.
Needless to say, though, it’s particularly inappropriate for Mayor Durkan to quietly push this through as a favor to Ginny Gilder and the Storm just before she leaves office, when there is effectively no way to hold her accountable for her actions.
The City Council’s Land Use and Neighborhoods Committee is holding a public hearing on this proposed rezone on Wednesday, and committee chair Dan Strauss has said that he intends to hold a vote on the bill either that same day or at his second committee meeting of the week on Friday.
Mayor Durkan’s office would not agree to an interview to discuss the proposed rezone, even though it instructed OPCD staff to redirect SCC Insight’s inquiries to them. In the end, it provided a short statement:
“As you know, we are updating the City’s comprehensive plan and have been doing extensive outreach on the future of industrial lands. You can find the meeting minutes here: https://www.seattle.gov/opcd/ongoing-initiatives/industrial-and-maritime-strategy#projectdocuments including notes on Interbay. The Mayor continues to advance strengthening the Industrial Lands based on the Industrial & Maritime Strategy recommendations and community feedback that are up for council committee this week and SEPA decision last week.
“During the Interbay outreach, the City heard interest in finding more opportunities to support sports and recreational facilities in the City, in the same way the City prioritized the stadium district, which is home to men’s sports teams such as the Mariners, Sounders and Seahawks. As the City moves forward on a series of SEPA and Council bills for consideration related to industrial lands, the Mayor proposed a legislative change to enable sports facilities in very limited industrial areas to support this goal. By passing this legislation, sports teams, such as the Seattle Storm which has not historically had an advocate in City Hall, will have more options available to build local facilities.”
To be clear, the legislation as proposed will allow only one facility to be built — not “sports facilities,” not for multiple “sports teams,” and with no guarantees that a facility built there will ever be open to the public.
Councilmember Dan Strauss’s office also declined an interview request, and Ginny Gilder’s office did not respond to an interview request.
Seattle Planning Commission Executive Director Vanessa Murdock said that the proposed rezone was only brought to her attention in mid-August; it was briefly discussed for the first time at the Planning Commission meeting earlier this month, and since the Commission only meets twice a month it did not feel that it had enough time to fully discuss the matter and provide comment at the Council’s public hearing later this week. “For this not to be brought to our attention was a great disappointment,” Murdock said.
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Appreciate this. Question: why do you think Gilder didn’t and/or wasn’t strongly advised to go for a contract rezone. Based on perceived additional time and expense?
I don’t know. Her office wouldn’t respond to my inquiries. Factors could be time, expense, challenges with SEPA review, and the conditions that might come along with a contract rezone.
Very great work! I like that you posing the question about making the facility open to the public.
I do think you missed an opportunity here to discuss how rezoning has primarily benefited mega corporations while this rezone would benefit local and female owned corporation. They’re not a multinational corporation like many corporations that benefit from rezoning. There is an aspect of equity to this rezoning.
I’m also not in favor for a plot of land that just stores vehicles.
To be clear, I love the Storm and would like to see them get a sweet deal on this. But it has to be legal. A contract rezone is legal. This is not. The rule of law has to matter.
I’m also for zoning (and zoning review) reform. You are right that it tends to benefit those with lots of money over others with less.
Well, the owner for the past 10 years has been Gilder, who controls who it is leased to….
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