Interbay spot zone likely to be voted out of committee Friday

Yesterday a proposed rezone in the Interbay industrial zone to allow the Seattle Storm to build a practice facility, discussed earlier this week in this article, had a public hearing and discussion in the City Council’s Land Use committee. And despite the dubious legality of such a spot rezone, it will likely be voted out of committee on Friday with little to no opposition.

The Wednesday public hearing was headlined by Storm co-owner Ginny Gilder, the owner of the property where the Storm intend to build their practice facility, as well as the Storm’s Sue Bird, both asking the Council to move the rezone forward. That was followed by a briefing and discussion with Councilmembers, in which Councilmembers Strauss, Juarez and Lewis insisted that it is not a spot-rezone while simultaneously making it crystal-clear that it is indeed one.

In the 1963 case Pierce vs. King County, the Washington State Supreme Court discussed at length the history and intent of zoning, and the legal tightrope it walks:

Less than 30 years after the enactment of the first zoning statute in the state, we find ourselves in an era characterized by vast movements of people and goods across the continent, East to West, and North to South, an era of great super highways to speed the migration along, a period of movement unparalleled in history from the farm to the city and a counter-migration from the city to the suburbs. We are in a time when all of the nation’s cities are being rimmed with gigantic housing developments, each requiring its quota of business services, recreational establishments, schools, hospitals, clinics, churches, banks, and varied components of a modern city. One wonders what the picture would be had no zoning statutes been enacted.

In the past 40 years, to accommodate these vast changes and to provide for an orderly and sensible channelization of the tremendous economic and social forces generated by these movements, the courts have erected within the framework of both the common and municipal law of this country a new body of law known as the zoning law…

[D]espite the beneficial results and the public necessity involved in the establishment of the zoning laws, they constitute a serious impairment of the right to use and enjoy property, and they do interfere with the possession thereof. Thus, as we have indicated, such impairment and interference must be directly related to the public health, safety and morals and the general welfare to be sustained.

It goes on to explain why spot zoning is illegal:

Spot zoning is an attempt to wrench a single lot from its environment and give it a new rating that disturbs the tenor of the neighborhood, and which affects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole, but is primarily for the private interest of the owner of the property so zoned; and it is the very antithesis of planned zoning. It has generally been held that spot zoning is improper, and that one or two building lots may not be marked off into a separate district or zone and benefited by peculiar advantages or subjected to peculiar burdens not applicable to adjoining similar lands…

`Spot zoning’ has come to mean arbitrary and unreasonable zoning action commonly by an amendment to a zoning ordinance, but also by the zoning ordinance itself, or, less commonly, by grant of a permit for a use other than the regular zone uses by which a lot or small area is singled out and specially zoned for a use classification totally different and inconsistent with the classification of surrounding land indistinguishable from it in character, thus creating a mere island or `spot’ non-conforming use within the larger use zone, with a resulting new rating that disturbs the tenor of the neighborhood. `Spot zoning’ is thought of as zoning not in accordance with a comprehensive plan, but for mere private gain to favor or benefit a particular individual or group of individuals and not the welfare of the community as a whole, and thus in effect granting by amendment, a special exception or variance from general regulations. `Spot zoning’ of this nature has been found unauthorized, discriminatory, and invalid and an unlawful usurpation of the power to grant a variance.

The courts will employ a four-part test for whether a proposed rezone is a spot zone:

  • 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.

The proposed rezone for the Storm practice facility meets all four of these criteria, even though it was carefully crafted to give the opposite impression to someone not paying attention to the details. And Juarez, Lewis and Strauss confirmed many of these points in yesterday’s committee meeting.  Juarez admitted that the proposed rezone was, in fact, about the Seattle Storm and allowing them to build their practice facility. “I don’t have a problem saying, or questioning, ‘Why can’t it be for the Seattle Storm?'” she said.  Juarez admitted that she also has been involved in the proposal for some time, and that the project is ready to move forward. “What we have here is shovel-ready,” she stated.

Lewis, like Juarez, asserted that the proposal was not a rezone (and like Juarez gave no explanation for why it wasn’t), but then proceeded to describe the specific parcel of land at 1616 W. Bertona that Gilder owns and is the intended site of the facility:

“So let’s just talk, a little bit, about the site. That’s the elephant in the room. And talk about what it’ll do to change the activation to that site in this neighborhood. We’re not replacing any current industrial use. This is not a site that is a shipyard. This is not a site that is employing maritime jobs, no maritime jobs are going to be lost, due to the Seattle Storm putting a practice facility into the site. This site is a single storage yard with a bunch of old RVs and boats, pleasure boats for the most part, not boats of industry, that for decades has either been that or it’s been a vacant lot, completely unactivated, no interest in a tenant in taking on this site.”

This undermines the entire pretense that this is intended to be a broader rezone, especially when paired with this admission from the OPCD Director’s Report on the proposal:

If a facility were built in one of the eligible areas, the limit prohibiting another indoor sports and recreation use larger than 10,000 sq. ft. in size within one mile would rule out other eligible areas such that a second facility would be prevented.

Everyone involved is well aware of the charade being played here: what is being proffered as a broad rezone that theoretically would allow multiple practice facilities will allow Gilder and the Storm to move ahead immediately with a “shovel-ready” project that would preclude any others from being built. There will be exactly one practice facility, and it will be theirs.

Undaunted, Strauss hammered several times on the fact that on paper the proposed rezone would apply to 45 parcels of land. What Strauss omitted is that two of those parcels are in the middle of the BNSF rail yard, and 30 of the 45 parcels are of less than 6,000 square feet. For the record: a regulation professional basketball court, including required out-of-bounds areas, is 6,600 square feet.

Lewis also went on at length about how the practice facility would “activate” the neighborhood. He neglected to mention that under the approach the city is taking to rezone the property, the Storm are under no obligation to make the facility open to the public — a concession the city could have forced if it had chosen to negotiate a contract rezone with Gilder and the Storm on a specific construction plan (which apparently they have and is “shovel-ready”). So the city has no evidence to support a belief that this will activate the neighborhood at all; it may end up simply as one more faceless, closed, private building. By choosing this approach to giving the Storm what they want, it has thrown away all of its bargaining leverage to ensure that the resulting practice facility is in the best interest of the community.

In the end, none of this really matters. The Council will pass it out of committee on Friday, and at a later point the full Council will vote it into law and the Mayor will enthusiastically sign it. And it will survive despite its illegality because almost no one has standing to file a legal challenge, and those few who do will not want to be seen opposing the incredibly popular Seattle Storm.

For the record: I love the Storm. I’ve been to several of their home games. The family-friendly atmosphere and culture is amazing, and the Storm players and leadership have been outstanding pillars of the community. I don’t even have a problem with the Mayor and City Council thoughtfully and transparently deciding that allowing the Storm to build a 50,000 square foot practice facility in the Interbay industrial area is in the best interests of the city. But it needs to be done legally, and what they are currently doing is not.

I do have a problem with elected officials who exercise their authority to write laws that everyone else must follow, but choose not to follow the law themselves when it’s inconvenient to their purposes. That’s not good governance; that’s the slippery slope to nepotism and to authoritarianism.

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