In my last post on Chapter 23.76 on land use decisions, I said we’d do a bit more on Type IV and V rezones, usually called contract and legislative rezones respectively. This is a pretty relevant issue right now in the Roosevelt where there are some lots–the so called Sisley properties–that are the subject of both a Type IV and a Type V rezone. Some might even say the two proposals are in competition with each other since, by their nature, each Type is going to require the City Council to make a specific kind of decision based on the type of rezone being requested. Which proposal wins out is the subject of heated debate now too in a number of venues.
The redlined box is roughly the area in dispute. The developer, Roosevelt Development Group, has applied for a Type IV rezone on all or portions of these lots. The Type IV rezone is initiated by a property owner and developer as a request for the City to change the underlying zoning. Here’s what is proposed in the contract rezone:
Design review, early design guidance meeting to allow a 12-story mixed use development with 283 residential units and 40,000 sq. ft. of retail at grade (proposed zoning NC3-125). Parking for 300 vehicles will be located below grade. All existing structures to be demolished. (24,000 sq.ft.). Proposal will require a contract rezone and an environmental impact statement. The Environmental Impact Statement will consider the proposed contract rezone site bordered by 15th Ave NE, NE 65th St, 14th Ave NE, and NE 66th St. The EIS will also consider the impacts of a future possible rezone of the block bordered by 14th Ave NE, NE 65th St, Brooklyn Ave NE, and NE 66th St.
This is a pretty substantial increase in development capacity, and most people think it is too much, including the Mayor who has said that a 125 foot tower should be “off the table.” But the process for a Type IV process, in addition to all the process involved with any new project regardless of height or how much of an increase is proposed, includes something called the “appearance of fairness doctrine,” which requires the City Council to act in a quasi-judicial capacity.
Now I know for you wonks out there this is old hat. But I am going to cite the state statute that is in operation here, since it is the larger context. The statute, RCW 42.36.010 says, in part:
Quasi-judicial actions of local decision-making bodies are those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding. Quasi-judicial actions do not include the legislative actions adopting, amending, or revising comprehensive, community, or neighborhood plans or other land use planning documents or the adoption of area-wide zoning ordinances or the adoption of a zoning amendment that is of area-wide significance. [Emphasis is mine]
Wherever you are sitting right now is very likely zoned. That zoning designation establishes the rights of the owner of the property where you are sitting. Those rights are also called entitlements, and the reason why local government takes this so seriously is that Type IV can expand those rights, essentially allowing the owner to get more than someone living down the road or across town with the same kind of property. You can’t buy a judge a beer to talk about your parking ticket and you can’t lobby a Councilmember about your rezone request for the same reason: it would be unfair.
So Sisley and RDG have started down the Type IV road, spending, according to DPD, somewhere in the neighborhood of about $60,000 on the permitting process. That doesn’t include all the additional costs associated with making that application, those are just fees. And they have likely been at it for a long time. I know nobody is shedding tears for Sisley and RDG, but I think it is important that someone point out that it isn’t easy or cheap to get a Type IV decision. I am not necessarily suggesting that it should be. But the process isn’t just lengthy it’s also something of a gamble since the applicant doesn’t know how it will turn out and nobody, including the neighborhood, can shape Council decisions by making a pitch.
A lot of people might say “yes, this is a good way to prevent undue influence for rezones.” Ever heard of Rick’s? Rick’s, a strip club in Lake City, was doing quite well and needed to expand their parking lot, requiring a contract rezone. A few years earlier when was a Neighborhood Development Manager in West Seattle, a similar rezone was considered for the West Seattle Thriftway. The West Seattle Thriftway was doing quite well too, and they wanted 22 more spots. Some Councilmembers sounded skeptical of Thriftway’s request. Is it really a good idea to encourage driving by adding more parking they asked?
At the time, West Seattle was embroiled in some pretty serious warfare over parking in the Admiral neighborhood to the north. Neighbors out there felt they were being made an example of, forced to suffer parking limitations for environmental reasons when other parts of the city were getting parking garages. What about neighborhood businesses, they wondered? Do environmental concerns go out the window when it comes to big glitzy projects?
To be fair, the Rick’s rezone wasn’t exactly smooth sailing. But the controversy wasn’t about parking but about naked ladies, and the fear that women getting naked for money leads to all manner of evil. In the case of Rick’s there was a lot of money donated by the proponents of the rezone. In the case of the grocery store there wasn’t. Both were Type IV quasi judicial rezones. Both were for additional parking for a bustling business. One was hated by local neighbors (Rick’s) the other was a rezone for what is still considered a community asset (Thriftway).
I distinctly remember one greenie green Councilmember who’s position on these two issues–parking for West Seattle and parking for Rick’s–seemed pretty inconsistent. She had a serious problem about adding more parking for West Seattle neighborhoods. But, when it came to Rick’s, she was all for it. The record shows that, in the end, she voted for both rezones. I supported the Admiral Parking Garage project and more parking for Thriftway when today I might not be so supportive of either. My point in comparing these two is that Councilmembers were still swayed by external factors, naked ladies, the environment, neighborhood concerns, and whether adding parking is a good reason to grant a rezone. And like me, their minds and underlying assumptions about things like land use and parking can change over time.
Call me a cynic, but while I think that RCW 46.36.010 is well intentioned it doesn’t yield the pure outcomes that some would hope. I understand that we don’t want developers to ply Councilmembers with golf trips and basketball tickets. But let’s get real. City Council rules define ex parte contact as
Any direct or indirect communication between a Councilmember and a proponent, opponent, or a party of record that is made outside of a Council hearing or meeting considering a quasi-judicial action and that contains the merits of the quasi- judicial action pending before the City Council.
The idea that somehow Councilmembers will be insulated from prejudicial information from proponents and opponents is absurd. The wish here is that somehow Councilmembers will be able to make the best decision without being unduly influenced or without considering all kinds of external factors. We always wish the our leaders would be impartial and make decisions based on “just the facts.” And I wish I could dunk, too. Achieving total impartiality from elected officials is about as likely as me getting past Bill Walton.
Don’t get me wrong, I’m not implying that there is anything untoward going on with this rezone or any other, not even Rick’s since the Councilmembers in question had no idea that bundled campaign cash was being being funneled their way. I’m just pointing out that just because we can’t call up a Councilmember and urge them to vote one way or another on a Type IV rezone doesn’t mean that they are going to make a decision that is completely unbiased, or the “best decision.” What’s wrong with bias as long as it is explained and disclosed? I am sure that there are other opinions out there, but I see no reason why Type IV rezones need to exist. I think they give a false impression of impartiality. I’d rather have proponents and opponents present their case, share their points of view in plain site, and let Councilmembers take the credit or blame for their decisions.
Interestingly enough, that’s what happened with the Rick’s rezone in the end. Yes it was Type IV and yes, other similar projects without politically active and generous proponents probably got stiffed by Council or slowed down. But the epilogue of the story is now well known. At least two of the Councilmembers who benefitted from the donations from Rick’s are no longer on Council, removed by voters in a general election largely because they were tainted by a Type IV land use decision, which, ironically is supposed to be insulated from outside influences.
And before opponents of the big Sisley rezones say that I’m suggesting zoning be put up for sale, let me make it clear again. I’m not saying that I want land use decisions made in back rooms or to the highest bidder. But Type IV decisions give exactly what the statute calls for: an appearance of fairness. Whether you are an up zone cheerleader like me or a single family fanatic you ought to prefer Type V legislative rezones. And that is exactly what the neighborhood has proposed with it’s plan. The legislative rezone is the one we’re all arguing about, and those of us who want more density couldn’t have influenced it the way we have if it was Type IV.
That might irritate some folks. But think about it. I don’t agree with some of the decisions in the neighborhood’s plan. The legislative process allows those of us with different points of view to weigh in and it requires Councilmembers to take responsibility–and leadership–for what comes next. They can’t hide behind the supposed veil of Type IV quasi judicial process. They have to listen. And that goes both ways, as I have said before. That means if there is big dense project in my neighborhood that I like, I better be prepared to defend it from criticism from all over the city.
In the end the Comprehensive Plan, the official zoning map, and the actual zoning have to align. But I think the best way to deal with rezones is through the legislative process, not a quasi judicial one and not the Comp Plan. It’s neither hear nor there for Roosevelt since both Type IV and V are underway. The Council is in kind of a bind, having two competing ideas for the lots in question coming to the from through two different processes. Which process will win out, the Type IV contract process or the Type V legislative process? Time will tell.
In the end, Councilmembers come and go, the code can be changed, and voters have the final say every two years when they vote for City Council candidates. The legislative, or Type V, process is a much better way to go, and neighborhoods, community groups, and, yes, private property owners and developers, should be able to propose their zoning ideas though the legislative process, where all of us have to make our best case to the City Council. Trying to out smart ourselves with a quasi judicial process doesn’t protect us from our own ideas or prejudices. We ought to be honest about those. Insulating decision makers from facts, emotions, and bias doesn’t make them better leaders.