Seattle City Councilmember Mike O’Brien wants to change the law on backyard dwellings in single-family zoned areas of Seattle. Is his proposed legislation just a minor change to existing rules that will have little effect of neighborhoods like Queen Anne and Magnolia?  Or is it, as many residents fear, a rezoning in everything but name that could forever change the 60 percent of the city that is zoned for single-family homes? 

The law proposes, among other things, to “remove barriers” to Accessory Dwelling Units (ADUs) sometimes known as mother-in-law units and Detached Accessory Dwelling Units (DADUs) or backyard cottages.  It has sparked concern across the city and in Queen Anne, where the Queen Anne Community Council’s Marty Kaplan calls O’Brien’s legislation “a Trojan horse.”

“Mike O’Brien says this is a minor tweak to existing ADU/DADU regulations,” Kaplan said, “but in fact it has the potential to radically change Queen Anne, and every other single family neighborhood, from a one-house-on-one-lot neighborhood to a neighborhood of triplexes owned by absentee landlords. It’s a rezoning in everything but name. Add to that the unknown effect of Airbnb, VRBO and others and in a few years the character of the neighborhoods could be just a memory.”

O’Brien’s proposed legislation would relax standards to allow three separate units on a single family lot, expand the size of units currently permitted, remove the requirement for off-street parking and allow for development by absentee landlords (provided they occupy one of the units for one year).

Standing in the way of a council vote on O’Brien’s proposed legislation is an appeal by Kaplan, an architect and Queen Anne resident. The appeal on behalf of the Community Council, could have been dismissed, but on July 15, Hearing Examiner Sue Tanner declined to rule on the Planning Department’s motion to dismiss. Instead, she requested clarifications of the issues and said she would rule on the city’s motion to dismiss by July 29. If the appeal is not dismissed, it will be heard in full on Aug. 31 before the same Hearing Examiner.

Kaplan had been hoping for an outright dismissal on Friday of the City’s motion but said the Community Council feels, “confident that our right to appeal on behalf of all Seattleites will be upheld.”

Kaplan said the Council’s efforts represent every Seattle neighborhood, and has asked for contributions to fund legal costs –  estimated at $25,000. The council has raised more than one-third of the projected costs, which have now increased somewhat due to the city’s filing of their motion to dismiss the appeal.

What’s at stake in Kaplan’s appeal?

On May 16, the City of Seattle’s Planning Department issued a Determination of Non-Significance for O’Brien’s proposed legislation to relax development standards for construction of up to three dwelling units in single family lots. Kaplan appealed the decision on June 6, saying that with a DNS in hand, the legislation could move forward without the need to do a professional environmental study or to get public input on neighborhood impacts city-wide.

Before arriving at its DNS conclusion, the City’s Planning Department completed a required SEPA (State Environmental Policy Act) checklist, responding “no impact” to all 109 questions. Kaplan called this absurd and said it is unrealistic to think that legislation as broad in scope as that proposed by O’Brien could have no impact at all.

On July 8, the Planning Department filed a motion asking the Hearing Examiner to dismiss the appeal, arguing that the, “appeal fails to articulate any basis for why the modest changes in development standards, when compared to the current Code standards, would have any probable significant adverse impacts.” 

Officials also argued that the SEPA checklist is required to evaluate only the environmental impacts resulting from the proposed amendments.

“The proposal makes no changes to the number of people that can live on a single-family zoned lot, and no changes to the total amount of area on a single-family zoned lot that can be covered with one or more structures, relative to what is allowed under current regulations.” 

Planning Department officials said that O’Brien’s proposed legislation “modifies but does not eliminate the owner-occupancy requirement.”

Understanding what is at stake in the legal proceeding, Kaplan engaged land use attorney Jeff Eustis to represent Queen Anne in the appeal. On July 14, Eustis filed an opposition brief arguing that it would be reversible error if the Hearing Examiner dismissed Kaplan’s appeal.

In his opposition brief, Eustis questioned how the Planning Department could have given actual consideration of impacts on Seattle’s neighborhoods without taking into account the input of the majority of its residents. Eustis noted the Growth Management Act’s public participation requirement “serves to advance protection of the natural and built environments” and that the Planning Department has the burden of proving that the department gave “actual consideration” of the environmental impacts of O’Brien’s legislation on affected residents in Seattle’s neighborhoods.

The Planning Department said there were two meetings to gather public input “during the phase of proposal development”. The Department also referenced a March 2016 report called “Removing Barriers to Backyard Cottages and Accessory Dwelling Units Summary of Public Input,” which is published on the City’s website and cited in the City’s press releases.  The Planning Department noted that the March 2016 report “summarizes the responses of the several hundred people who attended these meetings.” 

Kaplan has called the meetings “preposterously inadequate” and dismisses them as “infomercials.” He said the meetings were held with “a small number of citizens who have backyard cottages or want to build them, and an architect.”

The City Council adopted a resolution in Sept. 2014 directing the Department of Planning and Development to explore policy changes that would increase the production of attached accessory dwelling units and detached accessory dwelling units.

The Housing Affordability and Livability Agenda (HALA) Advisory Committee made recommendations in July 2015 to the mayor and City Council, including recommendation SF.1a to remove code barriers to accessory dwelling units and backyard cottages by removing the parking requirement, removing the owner-occupancy requirement, allowing a single lot to have both an attached and detached accessory dwelling unit, and making minor modifications to existing development standards for detached accessory dwelling units

The City Council adopted another resolution in Sept. 2015 declaring its intent to consider strategies to increase the availability of affordable housing in Seattle, outlining an overarching policy framework and timeline for the mayor’s HALA recommendations, and establishing the Council Work Plan for HALA Recommendations, which included strategy to remove barriers to the development of detached and attached accessory dwelling units.

Another issue that concerns many opponents of the law is its removal of the off-street parking currently required for construction of an ADU or DADU.  The prospect of three dwellings on one lot with no off-street parking is alarming to some.

And the requirement for the owner of a developed property to live in one of the three units for a year may not be the disincentive to absentee landlords that it appears to be. Attorney Eustis noted that there is nothing stopping property owners selling to a developer who has formed a Limited Liability Company and inviting an LLC member to live on the property for one year during the permitting phase for the construction.  An LLC owner, he points out,  can extend ownership to any person.

This is what Kaplan said he fears will create the financial incentive for speculators to buy up homes in single family neighborhoods and convert them to triplex-like developments.  Development happens one property at a time but there comes a tipping point after which the character of the neighborhood is entirely changed.