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Guest Opinion: Seattle should welcome new zoning ideas

A Mount Baker area property: Backyard cottages can offer affordability and compatibility with the neighborhood. Credit: Karen/Flickr

In all my years as a Seattle native, I’m not sure I have seen as passionate a debate as the current discourse about the past and future of single-family zoning in this city. Several articles and opinion pieces, in Crosscut and other media, have attempted to dissect one issue identified in the Mayor’s Housing and Livability Agenda Report released last week that single-family zoning in Seattle may have exclusionary roots. At issue is HALA’s potential rebranding of such zoning designations to “low-density,” aimed at rectifying history and allowing for more diverse housing types.

I fear that this debate will rob Seattle of its creative potential to solve the affordable housing crisis. We cannot let that happen, and vilifying HALA’s ideas without a broader perspective risks just that.

As someone who teaches law to graduate-level urban planning students and who has practiced for 30 years, I offer another historical perspective, one that can be portrayed quickly, without even referencing Fair Housing Act case decided only recently by the U.S. Supreme Court. I suggest a national orientation once noted by law Professor Robert Wright, speaking in the most general terms about “exclusion.”

As Professor Wright indicated in 1981, “the inherent nature of zoning is exclusionary.” The concept of excluding questionable land uses in the United States dates from colonial times, when Acts of Parliament and local ordinances adopted an approach designed to deal with nuisance-creating activities such as heavy industry, and to limit or regulate activities that were not in the public interest. Unfortunately, American history illustrates instances where such government regulation  has been used with a concern for controlling land uses that today would cause no concern about incompatibility with neighbors.

As I always discuss with students, it has been documented for years how the most famous zoning case in U.S. history put us on the very collision course that Seattle is addressing today. In Euclid v. Ambler Realty Company (1926), the Supreme Court first approved a comprehensive zoning ordinance, upholding a residential district that excluded multifamily and nonresidential uses. Justice Edward Sutherland’s opinion stressed that single-family residential neighborhoods need to be protected from the advance of apartment complexes.

From today’s perspective, the Court’s archaic language used some shocking words. I believe these words shed better light on the HALA Report’s implications about the downside of exclusive single-family residential zones.

Justice Sutherland equated apartments to nuisances of the day.  He said that “the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district” and described monoliths “interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller home,” bringing noise, traffic, and “depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities.”

A leading land use law professor, Daniel Mandelker of Washington University in St. Louis, likes to explain why Justice Sutherland used the “parasite” theory to describe how apartment houses affect-single family residential areas. The Supreme Court of 1926 had a then-contemporary picture of Washington, D.C. apartment development in mind, because that is what the justices saw everyday: unrestricted, single-lot towers, built without regard to adjacent homes, and with no parking provided.

So, maybe the HALA Report has a point, if the most noted U.S. Supreme Court case to uphold zoning began with the premise of “parasite” apartments invading “more favored” single family neighborhoods. Euclid relied on density, height and parking problems to uphold exclusive single-family zones (a legal approach that became institutionalized in cities such as Seattle), while other courts have attempted a distinction between uses.

Both distinctions are now very questionable. Why separate single- and multi-family residential types when multi-family dwellings do not necessarily fit the Euclid model? What of to-scale attached accessory dwelling units, backyard cottages or design-compatible duplexes or triplexes? Some may find these examples the “parasites” of our time.  I disagree. Many such dwellings already exist in Seattle, as inspiring examples for how we provide affordable opportunities in the years to come.

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