Hearing Examiner sides with Queen Anne Community Council on backyard cottage appeal

For Marty Kaplan, getting news of the decision was a great feeling.

For Laura Bernstein, it came as a sad surprise. 

The Queen Anne Community Council board member and the “Yes in my backyard” (or YIMBY) activist sit on opposite sides of the debate on loosening backyard cottage regulations.

It was Kaplan and the Community Council that won a key battle last month, when the city’s hearing examiner ruled in their favor on an appeal regarding the determination of non-significance in relation to the State Environmental Policy Act. 

Hearing Examiner Sue Tanner wrote in her ruling that the determination wasn’t based on information sufficient to evaluate proposal’s — from councilmember Mike O’Brien — potential impacts. 

The legislation would have allowed properties to have both an attached accessory dwelling unit (ADU) and detached accessory dwelling unit (DADU) on the same lot, removed the off-street parking requirement, removed the owner-occupancy requirement after one year, reduced the minimum lot size for a DADU to 3,200 sq. ft., and increased the allowable floor area for a DADU from 800 to 1,000 sq. ft. The city had said that if five percent of eligible lots in the city built DADUs, approximately 4,000 housing units would be created. 

But instead of moving forward, the ruling directs the city’s Office of Planning and Development to prepare an Environmental Impact Statement on the proposed changes. 

While some label the Community Council’s efforts as obstructionist, Kaplan is adamant that the appeal was not a referendum on the validity of backyard cottages as a housing option.

“This is not an issue about whether you should have a mother-in-law apartment or a DADU,” he said. “It’s an issue that there are at least 10 or 12 significant environmental impacts that the state Environmental Protection Agency and the Growth Management Act specifically direct you to study, and you tried to avoid it.” 

On the same note, Kaplan said the appeal has nothing to do with keeping people out, or resisting change, but rather countering the city’s efforts to “intentionally bypass the rules.” 

“If you’re going to change our neighborhood, and all 34 other neighborhoods in the city, I think you should ask,” he said. “I think you should get people’s opinion. I think you should show people why it’s a good idea. You should ask people, ‘Have we thought of everything? What’s your opinion?’”

For Kaplan, who served on the Seattle Planning Commission when the original backyard cottage legislation was drafted, the ownership requirement is particularly important. 

“We felt that it would preserve neighborhood character,” he said, “because the owner of the property would have a vested interest and still be a neighbor. It wouldn’t turn into some kind of commercial enterprise.”

Bernstein takes issue with those that frame renters as lesser contributors to their neighborhoods, noting that as a renter herself, she’s lived in the same Seattle home since 2009. 

But without the ownership requirement, Kaplan raised the concern that developers could use the proposed regulations to buy cheaper homes in the city and tear them down, replacing them with a smaller house, along with both an ADU and DADU. 

“You would convert every single-family neighborhood into a commercial, multi-family neighborhood,” he said. 

Meanwhile, Bernstein said the current slate of regulations are too much for many to handle, even if the will to build is there. 

“I know people that have wanted to build a backyard cottage, and they look into it, and it’s so onerous and complicated that they just walk away from the idea,” she said.

Affordability was another point of contention on both sides. 

“These are not affordable housing options,” Kaplan said. “There’s nothing you’re going to do — legislation wise — that’s going to address the affordability issue.”

However, Bernstein takes a different approach on the definition of affordability in this context. Compared to a $1 million single-family home, or a $4,000-a-month downtown apartment, for instance, she said the cottages do represent a relatively affordable option not currently available to many renters. 

She also views backyard cottages as an anti-displacement strategy, for those on fixed incomes increasingly concerned about high property taxes that fear getting priced out of the city entirely. 

Kaplan also questioned the removal of the parking requirement, especially in older neighborhoods with smaller lots sizes that already have parking challenges But Bernstein said the value judgment leans toward the need for more housing. 

“For me it boils down to the simple idea of what’s more important, parking spots or homes for people,” she said. 

When asked what changes he could see being made to the current regulations, Kaplan said he’s a firm believer in reviewing things in relation to current conditions. While he doesn’t believe the ownership requirement or allowing either an ADU or a DADU (not both) should change, he could envision tweaking the current square foot allowances for DADUs.

Meanwhile, Bernstein would like to see the city cast changes like the ones proposed in this case in a different light.  

“I don’t think our city officials, I don’t think OPCD taps into people’s imaginations enough,” she said. “I think other cities do a better job of it. Everything’s presented very dry. It’s not presented whimsically or aspirationally, or through good storytelling, and so when you’re just relying on statistics and data to give people a positive vision of the future, it doesn’t translate. It doesn’t hit people in the way its going to change the culture or change people’s minds.”

Ultimately, she said there was a tremendous sadness that struck many with the ruling.

“I also just think this is a microcosm of larger issues of land use,” she said. “A group of wealthy homeowners can raise $25,000 and halt something that’s going to benefit the whole city, that there’s wide, wide, wide agreement on. It just means that the process is broken.”

But Kaplan feels the decision was a victory for process. 

“I was grateful that we were able to prove our case that process is important,” he said. 

At press time, it was unclear what the next step would be for the city in regards to backyard cottage legislation. 

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