Chapter 23.40 Compliance with Regulations Required — Exceptions

I’d like to get on to the designations (SF, NC etc), but the code is full of these odd sections. This one is a good example of places where the code more or less says “there are exceptions to what’s in this chapter because of x and y, and those exceptions are governed by Chapter z of the code.”

Oddly, this chapter does the same, rehearsing various exceptions, then culminates with the creation of the Living Building Program. Now I don’t mean any offense to Council Central Staff (some of the smartest most dedicated people I have worked with. Seriously!) or anyone else who decided to put the living building program here. But WTH. Shouldn’t it have had it’s own chapter?

In any event, I’m not going to go into detail on all of these. The first section is pretty self explanatory: 23.40.002 Conformity with regulations required.

The rest of the chapter goes on to outline requirements for the demolition of housing, landmarks, and prohibitions against reducing “minimum lot area, yard, setback, modulation, open space, landscaping, access, screening or other element of development” for anything that came into existence after 1957.

There is a mandate for the director of the Department of Planning and Development to “promulgate rules that define the requirements of an acceptable waste diversion plan.” It’s worth noting here than many parts of the code do this, saying something is important and needs to be done and giving the director the ability to take care of it with rules. I think it’s a good practice, but it often seems a little random in its application. There are other things, like some parts of the subdivision section, that would seem to fall into this category but get described in full in the code. Part of that is because state law requires an ordinance, but where possible it ought to be pared down.

The section on variances strikes me again an example of the peculiar conceit of code writing for Title 23:

Variances may be sought from the provisions of Subtitle III, Divisions 2 and 3 of this Land Use Code, except for the establishment of a use that is otherwise not permitted in the zone in which it is proposed, for a structure height in excess of that shown on the Official Land Use Map, from the provisions of Section 23.55.014.A, or from the provisions of Chapter 23.52. Applications for prohibited variances shall not be accepted for filing.

To me this language says “exceptions may be given to this part of the code as long as they meet the requirements of this section of the code. Those exceptions might be considered and granted unless they’re not.”

There is probably some reason, beyond my comprehension, that language like this can be found throughout the code. Shouldn’t everything in the code be allowed an exemption for good cause unless it is illegal?

The director is given some leeway in the code so that the City complies with the Federal Fair Housing Act which requires reasonable accommodation for “dwellings occupied or to be occupied by handicapped persons.” I can only imagine what the rule book for these accommodations look like. I could be wrong but this along with the waste diversion program look like at least a couple of FTEs down at DPD.

The section on undeveloped streets, “modification of certain development standards,” 23.40.030, might warrant its own post. This section gives the director of DPD the discretion to “allow an abutting street to be treated as an alley if the Director finds that the lot abuts on at least one (1) other street suitable for vehicular use or is served by an access easement meeting the standards of Section 23.53.025.”

This is yet another black hole of references to other parts of the code. Following the link takes a reader to a section of the code on easements. That’s fine, but the requirements there along with what’s in this section don’t exactly make very much clear. This section is a candidate for clean up and improvement. All the sections in the code that affect easements, streets, alleys, and other right of way need to be reviewed with an eye toward maximum flexibility while preserving safety.

B. Vehicle Access Easements Serving at Least Three (3) but Fewer Than Five
(5) Single-Family Dwelling Units.

1. Easement width shall be a minimum of twenty (20) feet;
2. The easement shall provide a hard-surfaced roadway at least twenty (20) feet wide;
3. No maximum easement length shall be set. If the easement is over six hundred (600) feet long, a fire hydrant may be required by the Director;
4. A turnaround shall be provided unless the easement extends from street to street;
5. Curbcut width from the easement to the street shall be the minimum necessary for safety and access.

With something like this:

The Director may grant approval to easements provided that the easement ensure:

Safety of residents and emergency personnel;
No adverse or improved effect on surface water management;
Support of increased density; and
Improved pedestrian use of proposed easement

I know this is simplistic. But that’s the point. It also gives the director lots of power. A bad director might mean bad decisions. One thing that developers are fond of saying is “simplify the code.” Sure. But in a case like this all the specifications provide a lot of certainty. Easements have written rules with quantifiable measures. Certainly a director could articulate what an ideal easement might look like.

But while such specificity as outlined in 23.53.025 is annoying and probably measuring the wrong things, it provides certainty for permitting. Everyone needs to remember that simplicity could mean equal time and cost to a developer. On the other hand we might get better outcomes, like Alley 24 in the picture in this post. That alley might have been in compliance with all the rules in the code. But how can we ensure that we get more Alley 24 like outcomes rather than obligatory compliance with the code? Balancing rules with creativity and fairness with innovation is not easy, but we should aspire to it.

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