The City Council took up its work on the comp plan in January. In February, neighborhood groups and individuals filed six legal challenges, arguing the city had not sufficiently analyzed the impact of its proposed changes.
The Council was prohibited from passing legislation related to the comp plan while the legal appeals played out. Historically, those sorts of challenges have delayed new housing policy by many months or even years.
So Councilmembers pivoted to working on interim legislation to meet the requirement of the state’s new “missing middle” zoning law to allow four- to six-unit developments in previously single-family zones before the Legislature’s June 30 deadline.
On April 11, however, hearing examiner Ryan Vancil sided with the city’s motion to dismiss and tossed out all six legal challenges, as first reported by The Urbanist. The quicker-than-normal resolution hinged upon recent state laws that reformed the State Environmental Policy Act (SEPA) to limit its use to block housing, as well as several appellants’ failure to follow procedure.
The dismissal clears the path for the Council to once again take up the full comp plan update. But, even with the relatively quick resolution, the delays have pushed the Council too close to the state’s missing-middle deadline. So Councilmembers will continue to work on passing interim missing-middle zoning rules before returning to the broader comp plan work.
“Obviously the timeline we’re under isn’t the most ideal,” said Councilmember Joy Hollingsworth at an April 16 meeting of the Comprehensive Plan Committee, which she chairs. “And taking on interim legislation isn’t the most ideal, to then turn around and take on permanent legislation, but this is the predicament we are in.”
The legal fight
The six appeals came from neighborhood groups and individuals representing Madison Park, Hawthorne Hills and Mount Baker. They made a host of arguments against the city’s final environmental impact statement, including that it failed to consider impacts on stormwater infrastructure, urban trees, traffic, parking and even resident orca populations.
Several of the appeals were dismissed for failing to follow proper procedure. The Hawthorne Hills Community Council did not respond to the city’s motion to dismiss the appeals and did not appear at the hearing on the motion. Failure to appear or “pursue [a] case in a timely manner” gives the hearing examiner grounds for dismissal.
Similarly, Vancil dismissed three of the appeals because the appellants had not made comments on the city’s draft environmental impact statement. The city is required to collect and consider comments on its draft impact statement before making changes and finalizing the document. Vancil argued that “parties that do not comment in a timely manner within the comment period cannot be rewarded with a right to proceed with an appeal when their concerns could have been addressed earlier in the process.”
In his dismissal of the other appeals, Vancil cited two recent state laws that reformed SEPA. In 2022, the Legislature passed SB 5818, which reformed SEPA to limit citizens’ ability to appeal land-use decisions that “increase housing capacity and affordability” required by a city’s comprehensive plan. He also cited a 2023 accessory dwelling unit law that reduces opponents’ ability to file SEPA challenges.
Recognizing that appeals have been a barrier to progress toward the state’s housing goals, legislators have been working on SEPA reform for at least six years. Rep. Joe Fitzgibbon, D-Seattle, introduced reform legislation in the 2019 session. At the time he told Cascade PBS, “I don’t want to eliminate environmental review in places where it’s adding environmental value. But in places where SEPA is duplicating environmental review and being used as a tactic to just delay housing production, I think there’s reforms we can make to reduce those conflicts.”
The neighborhood groups still have the option to appeal the hearing examiner’s dismissal in King County Superior Court. A GoFundMe page set up by a supporter to raise money for appellant Jennifer Godfrey’s legal fight suggests some plan to do just that. It states that “… this is just one step in the process. We have amazing legal counsel, expert witnesses, and exhibits.”
A map of Neighborhood Residential zoning, which will be rebranded as Urban Neighborhood in the city’s proposed 2025 comprehensive plan. (Courtesy of the Office of Planning and Community Development)
What happens now
At an April 16 Comprehensive Plan Committee meeting, Councilmembers took their first look at the interim missing-middle zoning legislation. The interim legislation will meet the basic requirements of the state law, while the permanent version proposed in the comp plan allows for more density.
Per state law, the bill would allow two to six units of housing to be built on lots that traditionally allowed only stand-alone single-family homes, currently called neighborhood residential zones. Neighborhood residential zoning accounts for nearly three-quarters of all the land in Seattle where housing can be built.
State law allows up to four units to be built on any lot that allows single-family houses, or six units per lot within a quarter-mile of major transit stops. It also allows developers to build six units if two of the units are rented or sold at below-market rates. According to Council central staff, it’s unlikely private developers would use the affordable-housing density bonus, but it might appeal to nonprofit affordable-housing developers.
Those middle housing developments could take a variety of forms, including townhomes and two- to six-unit complexes that divide one building into multiple dwellings. The bill also allows for cottage housing (small standalone homes on a single lot), courtyard apartments (small single-story apartments ringing a central yard) and stacked flats (multistory condos or apartments with a unit or two on each floor).
One critical difference between the interim legislation and the permanent changes in the comp plan: The interim legislation limits how much housing can be built no matter the lot size.
In the permanent legislation, a developer could build one unit of housing per 1,250 square feet of lot size. This means that on a larger lot, a project could potentially have more than six units. Under the interim legislation, a developer could, depending on location, build a maximum of only four or six units, no matter how large the lot.
In the city’s inner-ring neighborhoods, where lots are typically 3,750 to –5,000 square feet, this rule wouldn’t have much impact. But the far larger lots on the northern and southern edges of the city could fit more units.
Just because developers can build more units in former single-family zones doesn’t mean they will. According to Council staff, an analysis by consultant ECOnorthwest of 100,000 neighborhood residential lots found that missing-middle construction would be feasible on about 19,000 lots, resulting in about 36,400 units built over 20 years. Under current zoning rules, the report estimates about 13,700 units of housing would get built in the same period.
The City Council is aiming to pass its interim missing-middle legislation by May 27, with the rules taking effect by the state’s June 30 deadline. The Council will hold a public hearing about the legislation on May 19.
The interim rules would be in place for one year. In the meantime, the Council will begin working to pass its permanent missing-middle zoning legislation as the first phase of its work on implementing the comprehensive plan.
According to Councilmember Hollingsworth’s office, the goal is to have the rest of the comprehensive plan passed by this fall. But the Council will have only a few months to work on the permanent missing-middle legislation before it takes its two-week end-of-summer recess. When it returns, the focus will be almost entirely on the city budget.
The uncertainty of interim legislation and the legal delays have already had an impact on housing development, according to Leah Martin, a partner at Allied8, an architecture and development firm that builds missing-middle-scale projects and single-family homes.
“We’re at a standstill right now. Even if people could develop, nobody wants to because they don’t know [what] the development capacity of their land is,” she explained.
Martin said she fears that the Council will respond to pressure from neighborhood groups and include the interim legislation’s limited allowances in the permanent legislation later this year.
