Rasmussen’s Anti-Density Conservation District Bill Screams “Unintended Consequences”

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I got my hands on a copy of the draft of Tom Rasmussen’s bill that would give property owners the ability to create special districts in which development must be in keeping with the “character of the neighborhood,” known as neighborhood conservation districts, last week. (PubliCola also got the draft, and reported on it in Fizz on THursday).

Rasmussen’s bill would allow 50 percent of the landowners in a neighborhood, including those who do not live in the area such as nonresident landlords or part-time residents, to vote to create a conservation district. The board of that district would then be allowed to determine what does and doesn’t get built in a neighborhood, banning, for example, new apartment buildings that are allowed by the zoning code but which don’t fit in with nearby Craftsman houses, or telling neighbors they can’t add a mother-in-law apartment that they decide is out of keeping with neighborhood “character.”

Character, of course, is a common dog whistle for anti-density activists who don’t want apartment buildings or renters in “their” neighborhood, and a palatable argument for preserving neighborhoods in amber even as tens of thousands of new residents move to Seattle and need somewhere to live. It’s also a way of saying, “I like things as they were 40 years ago, and I think those new apartments are ugly.” As Rasmussen himself put it in a contentious planning commission meeting last month, neighbors “don’t like the plastic material that’s being put on some of these buildings. They look cheap, horrible.”

Screen shot 2015-05-17 at 10.43.25 AMThe details of Rasmussen’s proposal, needless to say, will do nothing to mollify critics of the proposal like the 15 members of the Seattle Planning Commission who objected strenuously to the very idea of NCDs, which are, as all 15 planning commissioners argued in a letter to Rasmussen in April, could create “unintended consequences” such as preventing redevelopment, driving up housing costs and limiting affordable housing development, and allowing current residents to dictate development and redevelopment patterns on a patchwork basis, without regard for citywide housing goals or problems of race and social justice.

The draft, prime-authored by council central staffer Rebecca Herzfeld (who in private life is a neighborhood activist who opposed tall buildings and microhousing in her upscale Capitol Hill neighborhood and even lobbied the council, her bosses, to prohibit small retail businesses in apartment buildings), would give property owners, and property owners only, ill-defined and virtually unlimited power to dictate what gets built in a neighborhood.

The draft, which includes notes from staffers, would allow property owners in a neighborhood and within 300 feet of its boundaries to bypass existing zoning and development codes in numerous ways. Its stated goal is to “maintain the integrity of designated” NCDs and to “protect the character of neighborhoods with a distinctive character,” which is defined vaguely as features “representative of a period of the city’s development or cultural history that is worthy of conservation.” Although the ordinance goes on to specify that the neighborhood must have “identifiable attributes embodied in architecture, urban design, landscape design, uses, or history that make the district an important part of the city,” which structures will be deemed “worthy” is, again, up to a majority of land owners in a neighborhood.

In practice, the legislation would:

• Give neighborhoods the ability to direct the Department of Planning and Development to override or waive existing zoning and land use codes, imposing new, de facto codes in an area that are more restrictive than the adopted zoning. According to the legislation, “District standards and guidelines may apply aditional rquirements or allow exceptions to the standard regulations of the underlying zone to conserve the character of a designated area.”

In practice, this could mean that residents could have city-sanctioned authority to require larger yards and setbacks, mandate shorter buildings (limiting the profitability of building more densely), prohibit backyard cottages (which are currently allowed in single-family zones throughout the city), and mandate that developers build more parking than is legally required.

Screen shot 2015-05-17 at 10.44.59 AM• Stipulate that any new development that doesn’t conform to district rules “shall not be detrimental to other properties in the zone or vicinity or to the public interest,” a standard that sounds reasonable enough until you realize that it’s not defined and could mean just about anything.

• Require environmental review (a process that adds substantial time and cost to new developments) any time a “contributing structure,” say, a Craftsman house, “is proposed to be demolished. In other words, anyone tearing down an old house could be required to submit an environmental impact statement to the city.

• Exclude renters, who make up more than half of Seattle’s population, not only from the process of approving conservation districts that limit development and could make living in such areas more expensive, but also from the requirement that residents be notified that major new development restrictions could be coming to their neighborhood or invited to a public hearing on the changes. Renters, contrary to popular belief, are often quite invested in their neighborhoods and live in those neighborhoods for many years, yet the NCD legislation erases them from every step of the process.

• Create a de facto homeowners association among property owners in a conservation district, requiring a special Certificate of Approval when a homeowner wants to alter the “external appearance of any building identified as contributing to the character of a district.” This could mean anything from the color of a facade or an addition to a private house. A property owner who wants to make alterations to their building would have to submit before-and-after site plans, before-and-after elevations, and “photographs of any existing features that would be altered and photographs showing the context of those features, such as the building facade where they are located.”

“The NCD [Officer] shall recommend denial of any application that is not consistent with the development standards for the district.”

In response to a citizens’ records request, the city also provided a draft briefing paper by consultant Kjristine Lund of Lund Consulting, which was apparently supposed to be a review of how the legislation could address the issue of affordability, which, on its face, would clearly be threatened by major restrictions on new development. (It should be noted that the affordable housing that low-income housing activists are trying to preserve to prevent displacement is generally in older apartment buildings that would not be considered “contributing structures” to a neighborhood’s “character,” and so wouldn’t typically be protected from demolition in NCDs).

Screen shot 2015-05-17 at 10.45.20 AMAlthough it aims to demonstrated that allowing property owners to dictate new restrictions on development won’t displace or price out low-income residents, the report brushes aside concerns about gentrification by noting passively that “There is also belief by some that [NCDs] result in gentrification that displaces lower income residents.” This is followed up by examples of scholarly studies that supposedly disprove this belief, and noting that “some neighborhood conservation districts have made the development and preservation of affordable housing an explicit purpose and goal for creation of the district.” In practice, the briefing paper continues, this has led to regulations that discourage displacement, rather than regulations that allow more new affordable housing to be built in a conservation district.

Displacement is only a fraction of the affordable housing problem rapidly developing cities like Seattle face, and restricting the development of new housing for the 100,000 or so people expected to move here in the next 20 years is going to worsen the affordability problem, not alleviate it. The legislation itself encourages NCD officers to “support efforts of members of disadvantaged communities to create conservation districts in their area,” but if those disadvantaged community members are renters, they’re explicitly prevented from creating conservation districts by the same legislation. Neither the report nor the legislation itself makes the case that affordable housing will be helped instead of hurt by allowing homeowners, not policymakers, to dictate the direction of development in the city.

Rasmussen, who is leaving the council at the end of the year, has said he’d like to formally introduce the legislation as early as this month.

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