by Lisa Parriott
It all started with us trying to save our magnificent Silent Giant, a vibrant 100 foot ponderosa pine that reaches straight up to the sky…
George, our elderly neighbor, had told us for years that he would never sell his property to a developer; he loved his big beautiful pine tree and he never wanted it cut down. But in the end, he did sell his home to a developer. The day after his property hit the market last winter, he was offered $30,000 over the asking price; all he had to do was agree to the terms before the offer expired on Saturday – the day before Sunday’s open house. Acceptance meant he would receive a lump sum of $505,000, cash, a month before Christmas.
We do not believe George knew that the purchaser was a developer. Nor do we believe George knew that he had side yard that could be potentially split into a second lot (~3,100sf ) and developed. The price he was paid certainly did not reflect that.
Our community did not know either until we saw the Notice of Proposed Action posted on the fence. Within a short period of time, there were more than 80 comments sent to the City opposing the project. Some were against squeezing a tall towering toaster box home in between two homes and the impacts it would have on the neighbors. But most comments shared how the magnificent tree is cherished and asked that it not be cut down.
This tree is so tall that it can be seen from downtown Seattle on West Seattle’s ridgeline! It is the tallest tree on the horizon and perhaps the largest of its species in Seattle.
We were stumped; an old Seattle Municipal Code placed our protected “Exceptional Tree” on the chopping block…
Land use zoning regulations went into effect in the 20th century. In the 1950s, the minimum-sized lot was developed: the minimum lot size for new single-family home was 5,000 square feet (sf). George’s home was on ~6,200 sf lot situated in a neighborhood zoned for single family residences with a minimum lot size of 5,000 sf.
When the zoning was introduced in the 1950’s, some residents protested. They had property that was designated, technically, as two or three little lots. They claimed they planned to build on the extra lots, or sell them. If they were going to be held to a 5,000-square-foot standard, those lots would lose their value. So the City granted an exception for lots platted prior to 1957.
In 1988, the City Council decided that it wanted denser development in neighborhoods that it felt could accommodate more residents so the City Council extended the exception. Homes could be built not just on lots delineated in historical platting maps, but in old tax records and various other government documents.
Towering toaster box homes on small lots created a furor across Seattle neighborhoods starting around 2010. From 2012-2015 a group representing 20 neighborhoods all across the City (backed by more than 600 supporters) banded together and worked tirelessly to close the loopholes that a handful of developers were using to justify the construction of towering, three-story homes in the backyards and side yards of existing homes (http://www.onehomeperlot.com). Keep in mind, it is no longer mom and pop who owned their property when the zoning changed in 1957 trying to protect their nest egg. In George’s case, we are talking about a developer who bought the property less than ten months ago.
Today, the current historic lot exception code states that in order for a site under 5,000 sf to be developed, it had to be established as a separate building site before July 24, 1957. There are 3 criterions through which this can be met: 1) deed, 2) platting, or 3) building permit. Now here is the tricky part. The code is very specific about the 3 criteria. However, the City routinely takes the liberty to grant historic lots to a few developers even when none of the criteria are met and the facts contradict their position. Some times to justify their opinion, they create “inferences” of what an individual may have been thinking nearly a century ago. In George’s property’s case, they opined what someone was thinking in 1930 – 86 years ago – the time of my great grandfather. And to make this even more confusing – they may decide differently in similar situations.
It gets even better… While you can research the code (because it is in black and white), the vehicle used between the developer and the City to secure a permit is called the Legal Building Site (LBS) “Letter of Opinion.” City staff helps developers figure out the land use puzzle. Even before a developer buys, they can submit the documents they have found—and a $1,000 fee—for an opinion on whether a property contains a valid historical lot and whether that lot could qualify for a building permit. Sometimes, the City will even suggest ways of making a project work.
This process is not defined in the Seattle Municipal Code, Director’s Rules, or any written policy. It is merely a practice created by staff, not vetted by any public process, or attributed to actions by elected officials. Since it is not considered a “decision,” merely an “opinion,” it cannot be appealed by citizens.
And we were trumped by the nearly $3,000 minimum it costs to have our day in court while the developer pays a mere flat fee of $1,000 with the upside potential to profit $350,000+
Going into court is a daunting prospect for every citizen. There are lawyers’ fees, filing fees, expert fees, record production fees, etc. It can seem like the only people who get their day in court are the wealthy. Ordinary citizens can be locked out of the justice system for lack of money.
In few areas of the law is this unfair dynamic more prevalent than in cases involving Seattle’s land use code. Under the land use code, concerned citizens can appeal a development in their neighborhood if they believe the development violates the law. The appeal will be heard in a special court called the Seattle Hearing Examiner, and the Hearing Examiner has the power to cancel the project if it turns out the citizens are right about the unlawfulness of the project.
The only catch is, citizens have to pay for the privilege of being right.
The Hearing Examiner’s fees are reasonable: just $85, and a citizen can take the City to court to determine whether the City’s approval of the project was lawful. Where it gets sticky is that before citizens can get into the Hearing Examiner regarding certain types of development, they first have to go to the City’s Department of Construction and Inspections and ask the Department to take a second look at the project. This second look is called a code interpretation, and the fee for a code interpretation is $2,800, or perhaps a lot more. $2,800 buys the citizen just ten hours of Departmental review time. If the review of the project takes longer than ten hours, the Department will bill its time at an additional $280 per hour. If the concerned citizen cannot pay beyond the $2,800 required minimum (there is no ceiling limit), then they lose their right to appeal and all of their money!
This is in contrast to the developer’s flat fee of $1,000 to get “an opinion” on whether or not this is a buildable lot leading to their desired permit.
The fee is a show-stopper—no code interpretation fee, no access to the Hearing Examiner. Worse still, if a citizen tries to do an end-run around the code interpretation fee and go straight into state court, the case will get kicked out. Under state law, citizens have to exhaust their local land use code procedures before going to state court, and here in Seattle, that means paying the $2,800, minimum (with no ceiling limitation).
Few citizens have $2,800 lying around to spend on what amounts to a glorified filing fee. Coming on top of whatever lawyers’ fees and expert fees are associated with actually winning their case, the $2,800 code interpretation fee means many citizens simply can’t afford to get into court, even if they know for a fact a development is unlawful. After all, the fee is nonrefundable. Even if a citizen is right, she won’t get her fee back. The project will be stopped, but the money will be gone.
The Department defends its $2,800 minimum fee as its only source of funding used to offset costs in reviewing the development project (it already approved and received a mere $1,000 flat fee from the developer). But it’s questionable how much extra cost the Department is incurring. After all, just to approve the project, the Department must have done some work already, examining the developer’s permit applications and satisfying itself that the project seems likely to comply with the law. When a citizen’s appeal comes around, the Department could simply point to the work it already did and tell the citizen, “We believe this project is lawful.” If the citizen disagrees, the Hearing Examiner can decide which side is right. There is no reason the citizen should pay the Department to repeat the very work it just completed on behalf of the developer, who incidentally also paid the Department for its work in the form of permit fees. In citizen appeal cases, the code interpretation is a fee without service.
Washington Constitutional law requires that fees for access to courts have a rational basis. There must be some useful purpose to which the fee is being put, and the fee must not be disproportionate to the service rendered. In the case of citizen land use appeals, the code interpretation fee is “paying” for work that has already been completed (or should be completed at the developers’ expense), and the size of the fee is 30 times higher than the fee for the Hearing Examiner. Such a fee has no rational basis. It is not being put to a useful purpose, and it is out of proportion to the service rendered.
The usual fee to get into court is a matter of hundreds of dollars, not thousands:
A) The Seattle Hearing Examiner requires only an $85 fee. SMC 3.02.125(A).
B) Appeals from a court of limited jurisdiction require a $230 fee. RCW 36.18.020(2, 5).
C) Filing at superior court requires a $240 fee. RCW 36.18.020(2, 5).
D) Appeals to the court of appeals require a $290 fee. RCW 36.18.018(2, 4).
E) Appeals to the Washington Supreme Court require a $290 fee. Id.
F) Filing a case in the Western District of Washington requires a $400 fee. 28 U.S.C. § 1914.
G) Appeals to the 9th Circuit require a $505 fee. 28 U.S.C. § 1913.
H) Appeals to SCOTUS require a $300 fee. Sup. Ct. Rule 38(a).
The $2,800 fee (with and additional cost of $280 per hour beyond 10 hours) required by the Department as part of a judicial review process is grossly out of proportion to any of the fees listed above. In fact, filing a case in every court above simultaneously would still be cheaper than appealing the Department’s land use decision if a citizen is required to pay for the code interpretation.
So how does the story end?
If you do not have the money to challenge the City’s decision in court and be successful (and possibly King County Superior Court and the Court of Appeals), then you are left with:
What keeps bothering me in the back of my mind…
I have spoken to over 100 individuals in my neighborhood about our tree and this proposed towering toaster box home. 100% of the people were against the loss of this big beautiful tree. 70% had their own personal story to share regarding the recent loss of their (or someone they knew closely) beautiful trees or home to development.
I spoke on a panel at the 2016 West Seattle Street Fair. The panel consisted of representatives from the various West Seattle neighborhoods. There was consistent acknowledgment of the negative impacts on our lives with this rampant development without the concurrent build out of infrastructure (as required by the Growth Management Act but not implemented) and environmental protections. A bunch of itty bitty trees will not mitigate the loss of a vibrant 100’ majestic pine in our generation or future generations. Roof top gardens on 5 story buildings (with restricted access) or green walls do not replace the loss of green space.
This is not a local issue; it is an issue playing out in all of our cities across the U. S. We live in a democratic society. So how is it that the voices of the majority of the people fall silent on our elected officials’ ears? How did the Seattle Municipal Code and the new proposed Comprehensive Plan get so rigged on behalf of a few developers? Why have we failed consistently to pass a tree ordinance in Seattle, the Emerald City?
These are the solutions I would propose to level the playing field and protect our City’s emerald canopy:
I will see you this fall as we drop off our ballots with our vote on Sound Transit 3 (ST3), a $54 billion measure that will appear on the November 2016 general election ballot. This vote follows on the heels of Move Seattle, approved by voters in November 2015. Move Seattle is the 9-year, $930 million Levy to provide funding to improve safety for all travelers, maintain our streets and bridges, and invest in reliable, affordable travel options for a growing city. As you cast your vote, remember, the developers responsible for growing this City did not pay a dime for their impacts and walked away with hundreds of thousands of dollars in their pockets.