Note: I think it's a healthy thing to have all this debate out in public. So this post takes the form of a response to a response to my views on the big house emergency in Seattle.  

Dear City Council member Conlin,

I have seen your general response to concerns about the "emergency" you think has been created by some big houses being built on some small lots around Seattle. (The ordinance closes a loophole in the City’s Land Use Code that allows developers to build large houses on very small lots – in at least one case, a three-story house on a lot of only 1050 square feet.)

It occurred to me, as I was responding to the specifics of your response (see below), how unfair your move is to all of us who have been participating in the public debate about land use in Seattle.

I'd love an emergency declared in around transit areas so that more dense development could happen there. I'm sure Glenn Roberts would have loved an emergency declared when he and some of his neighbors opposed efforts to increase height in Roosevelt. And I know that John Fox thinks there is an emergency facing people who live in affordable housing. But none of those things, apparently, constitutes an emergency to the City Council.

What does? The complaints of some very affluent and sophisticated neighbors who are irked by a few big houses going in next door or down the street. Oh, and they started a web site, too! Never mind that these "big houses" are big only because they seem big to the neighbors. Never mind that those houses are legal, and were permitted. The neighbors just don't like them, and they want it stopped, everywhere else in the city. Emergency!

I took some time to respond to your response and here it is below. Your words are inset below.
Contrary to some of the misinformation that is circulating about this legislation, it does not prevent development on small lots, and will not affect the ability of property owners who have approved buildable lots to proceed with constructing houses. The ordinance will make some changes in development standards, and will close a loophole in the City code to prevent new substandard lots from being created. This is an interim regulation, which will only be in effect for a few months until DPD and the Council have had the time to develop a more comprehensive code change.

Based on what you’re saying, your emergency legislation does substantively prevent development on small lots by banning the creation of the smaller lots in the first place. If subdividing existing lots into smaller ones to allow a house to be built on that lot is stopped, then that development on a small lot won’t happen. You use the term “substandard,” but below what standard? When I asked Department of Planning and Development director Diane Sugimura (thanks for the call Diane!) whether these houses were a health and safety problem, she said they weren’t. What exactly makes them substandard if our DPD is granting those permits and occupancy in the first place?
The emergency ordinance is a rarely-used procedure in which the council can act quickly to provide a short-term fix (stopping problem activities) while it considers legislation for a long-term solution.

In my conversation with Sugimura, I asked what the emergency was, and she said, like you, that the problem was houses that were "too big." But compared to what, the houses next door? No, you and she are in agreement the supposed problem is that the house is too big in relationship to the lot it happens to sit on, a completely arbitrary measure of being out of scale. (On a 1,000-square-foot lot, an 800-square-foot house---tiny by any other standard of measurement---would be considered out of scale.) All you have here is a Goldilocks effect, where well-heeled neighbors get to decide what’s too big, too small, or just right.

If I was Dan Duffus, the developer whose houses are causing so much consternation, I’d be talking to a really good land use attorney. What you’re saying here is that his projects are a “problem activity,” a term usually reserved for criminal activity or things requiring abatement like hoarding. When did economic development, infill housing, and creating more variety in neighborhoods become “problematic?”

On the contrary, it feels like what is supposed to happen in a free market society. I also heard that this these small lot developments weren't intended. So what? Not intended doesn't necessarily mean these projects are a bad thing. Equating legal activity with hoarding and drug dealing is offensive and possibly actionable.
This issue came to our attention earlier this summer, when we learned from community groups that some developers were using an obscure provision of city code that allows lots that are well below minimum lot size requirements to be used for infill development. These substandard lots, often well below 3,000 square feet, were often created before 1957 for tax purposes. In some cases these lots were actually created by mistake when lot descriptions on more than one line were transcribed from hand-written records as two separate lots. Others were supposed to be erased by new plats or subdivisions that established legally developable lots. When the council adopted minimum lot size standards in 1957 and again in 1982, they allowed these lots to be “grandfathered” as legal nonconforming lots while the city developed new regulations; this gave the people that owned these lots time to develop them and recoup their investment within a reasonable time period.

You’re essentially responding to the neighborhood's interpretation of what is too big, then proceeding with a qualitative measure (see “problematic” above) to shut down what is legal under current law. Nobody has said these houses are unsafe, dangerous, a threat to public safety, or a violation of existing law. Some neighbors thought they were too big, and you responded by calling for “emergency” legislation. To me that’s an abuse of the the council's authority, and it's kind of like the boy who cried wolf.

Why not hold hearings and have a few studies like you do for most everything else? For example, I still have yet to hear how many lots are out there that might fall into this “problematic” category. How many people are lined up around the block at City Hall waiting to file for building permits? We don’t know. We should study it for a year!
Unfortunately, there was no expiration date on the grandfathering clause, and recently some developers have rediscovered it and are using it to create infill housing that is not compatible with neighboring single-family houses. They pointed out to us that, despite a small number of these occurring on a yearly basis, there is a software package planned for release in October that will allow these substandard lots to be identified quickly and easily. That means that we could see many more in the near future if we do not take immediate action.

What’s wrong with seeing many more in the future? Nobody has defined the problem here other than some neighbors think these houses are too big. You’re not acting with due diligence here. The fact that some neighbors think some houses are too big and there might be more doesn’t constitute a definable problem, it’s simply the opinion of a group of neighbors with enough financial interest in the status quo to start a website. If we start up a website, say zerobasedzoning.com, will you adopt Zero Based Zoning as an emergency measure?
The emergency ordinance does not prevent all further development in these small lots, but sets up new criteria that:

-End the use of historic property tax records as a basis for qualifying for minimum lot area exceptions; and

-Allows development of lots with an area up to 75 percent of the general minimum lot area of the zone (i.e. lots up to 3,750 square feet in an SF 5000 zone), but only up to a limit of 22 feet in height (2 stories), which will significantly reduce the impact.

See above. You are stopping development if you stop the exceptions and you’re imposing limits that will hobble the innovative building that is creating housing in unusual spots. You are overregulating in a situation where there is no harm being done, but where, arguably, good is being done. What is the impact that would be reduced? You can’t answer that because there is no impact other than a few neighbors opinion on a website. This is a case where size really doesn't matter.

Developers of these structures have argued that they should not be limited because they are building new housing, and that this loophole allows them to make it more affordable because the cost of land is lower for small lots. Actually, small existing houses are affordable – new construction will always be more expensive. One of the projects built on a 2400 square foot lot was listed for $665,000 – a pretty long distance from affordability. Under this legislation, smaller houses could continue to be built, which would be more affordable and appropriate for the size of lots that are being used. Contemporary trends are for people to downsize into smaller housing units, reversing the trend that led to the McMansion developments that are neither affordable nor sustainable.

 



This is one of the more bizarre arguments you offer. First, it is true that the developers are creating more housing. That’s indisputable. Your emergency would put a stop to that. As for the price of the housing, what part of state or local law mandates the Council to set the price on housing? What part of the City Charter or the land use code says that all new housing has to be “affordable?”

And speaking of affordability, it is a relationship to price; all housing is affordable to somebody. Your argument here is either fundamentally flawed, or seeks powers that the Council simply doesn’t have by law: setting prices for housing and delegating some neighbors veto powers over their neighbors's legal entitlements to develop their property.
Last year, the Council adopted legislation that limited the amount of development that can occur on lots that are less than 2,500 square feet, including height limits and structure width and depth standards. These interim regulations would modify those regulations to limit all single family zoned lots that are less than 3,750 square feet to a principal structure limited to 22 feet in height.

Under the State code governing emergency legislation, the Council will hold a public hearing on Thursday, September 13, at 9:30 AM in the Planning, Land Use, and Sustainability (PLUS) committee to hear comments on this legislation and on the plans for next steps. The Council legislation also creates a work plan for developing permanent legislation to address this issue. Under the work plan, new legislation will be developed by the end of this year, go through environmental review, and come to the City Council in the spring of 2013.

 

Let’s face it: this isn’t an emergency by any definition (although it is somewhat amusing to note that even in an emergency, you're still developing work plans with no promise for any real action until next spring!) All that's happened here is some neighbors with means and access to city council (and a website!) are upset because some big houses got built. What you are doing here is an embarrassment to the city and makes a mockery of the public process which developers and other members of the public usually have to go through to make changes to land use.

Both NIMBYs and pro-growth people like myself have to slog through your process month after month while you play Solomon with heights and other elements of the code, lot by lot all across the city. But this week, some affluent neighbors pull your strings and you declare an emergency. I would encourage you to stop and consider what you’re doing. Nothing bad will happen if more of these homes get built. Nobody is being harmed. And perhaps, if you’ll let the market and neighborhoods do their thing, we’ll learn something and get better at infill.

Hold some hearings. Do some studies. But this is nowhere near being worth the use of the City's emergency powers. So many other things around here are.