In their battle with city hall over City Council member Mike O'Brien's affordable housing "linkage fee" proposal—a charge on developers for building in multi-family zones, lowrise zones, development hubs, and along transit lines—a long list of development and land use attorneys sent a letter to council and the city attorney this morning arguing that the proposal is illegal.
Funny footnote: Local law firm McCullough Hill Leary, which represents downtown developers such as Clise, sent a letter last week saying the council's decision to hold a closed-door meeting to discuss the legality of the linkage proposal was itself illegal (a violation of the state's open meetings act, they said.) The funny part: The city's response to the letter was that they council was entitled to hold a closed door meeting because the linkage fee idea had the potential to raise legal concerns which, in turn, entitled them to private counsel. However, developers scoffed at that response saying no legal challenge currently existed. But, a week later, here they are.
The developers' argument is this:
Washington state law prohibits taxing development. There are a few exceptions, most notably if the fee (tax?) is part of the Growth Management Act. Other exemptions? If the fee is voluntary or if it's part of an incentive program.
The attorneys from firms such as Foster Pepper, Veris Law Group, Gendler & Mann (notable because partner David Mann is seen as "neighborhood guy" as opposed to a density advocate), and McCullough Hill Leary, along with green urbanist and attorney Chuck Wolfe, say the linkage fee doesn't meet any of those exemptions.
The letter concludes: "The affordable housing shortage presents a major challenge for the City, and we look forward to working with the Council to find creative, lawful solutions ... However, as the Washington Supreme Court has written, the shortage of affordable housing is a societal burden to be borne by society at large. There is no legally supportable justification for imposing this tax on those who seek to develop the housing, office, and commercial space necessary for our City..."
Asked for a reaction the letter, the City Attorney's spokeswoman Kimberly Mills told us it wasn't likely they'd have a comment today.
O'Brien, who has become an eloquent proponent of affordabe housing, says the fee could raise ten times as much for affordable housing over the next decade as the current incentive zoning fee would have; the IZ policy only charges developers if they build in certain development zones and if they choose to take the incentive and build higher. The new fee is automatic.
The linkage fee proposal, which has sailed through the committee process so far, has one more committee hearing tomorrow. It is scheduled for a full council meeting and vote on October 20.