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Rich neighborhoods may have a pass on Murray's housing changes

By David Kroman
Seattle_-_Broadmoor (1)

The Broadmoor gated community.

By David Kroman

Behind stone pillars along the shoreline of Lake Washington, south of Magnuson Park, is Seattle’s Windermere neighborhood. Many of the houses were built in the 1930s and are made of solid brick. Although not exactly living in a gated community, Windermere residents pay dues — $650 a year — and receive access to a private beach, tennis courts and boat storage.

As the city looks to add density across Seattle, it might stand to reason that the clean sidewalks and streets of Windermere could fill, if only slightly, with more residents. Under the recommendations of Mayor Ed Murray's Housing Affordability and Livability Agenda, duplexes and cottage units would be allowed citywide, including in single-family neighborhoods.

Within Seattle's housing problems, there's a widely noted geographic segregation between rich and poor, and the proposals have been presented as an attempt to, among other things, level the geographic playing field. "At the heart of the HALA recommendations," said Murray last Monday, "is an attempt to address the inequality based on geography."

But there's more going on than might meet the eye in the case of wealthy areas like Broadmoor, Blue Ridge, Laurelhurst, parts of Mount Baker and Windermere. New residents agree to certain neighborhood guidelines that dictate architecture, landscaping and general appearance.

Among those guidelines is the stipulation that homes in Windermere are for single-family dwelling and, said one resident, that duplexes are forbidden. If the recommendations from Murray’s HALA report are adopted as is (which, to be clear, is a long way from happening), restrictions like these, typically established only in wealthy neighborhoods, could run counter to new citywide code changes allowing for more dwelling units per lot and bodies per building.

But even if Seattle opened up the city codes to allow for more density within single family areas, neighborhood covenants would likely have the legal upper hand. Windermere residents, in other words, seem to have well-established power to continue to forbid duplexes.

Since the unofficial release of the housing recommendations from the HALA group, there has been a firestorm over whether Seattle was doing away with single-family zoning, which is what keeps, say, East Ballard from looking like downtown Ballard.

Cue the broken record of city officials, Murray included, stressing that single-family homes aren’t going anywhere. According to Robert Feldstein of the Office of Policy and Innovation, only 6 percent of the city’s single family zoning — or 4 percent of the whole city — will be tweaked to allow for bulkier developments.

Under HALA recommendations, 16 percent of Seattle could see some change in zoning not related to single-family zones. For example, buildings downtown could be allowed to take up more of the block; developments on Capitol Hill might get an extra 10 feet of height.

Why the confusion over the treatment of single-family areas? Because people read bureaucratese differently. While only parts of the city are being considered for zone changes to allow for more building mass, 100 percent would indeed see some adjustments to how single family zones can be put to use, as long as the individual projects meet such rules as setbacks and total allowable lot coverage. Feldstein and the city insist these are not zone changes but code changes. But in a recent article in the Seattle Times, HALA member David Weimer frankly referred to them as upzones. And that's pretty clearly for a reason: To the average person, allowing greater density or more units in the neighborhood looks the same as upzoning, whichever legal mechanism is used to accomplish the change.

No matter what you call them, two recommendations could ripple through the city, from Ravenna to Rainier Beach, Madrona to Magnolia.

First: Restrictions on mother-in-law apartments and backyard cottages would be lessened. Not only would construction become easier, but also standard barriers around parking and renting would be removed. The hope, according to the official HALA document, is that by allowing more of these units, the city could add 4,000 or more new homes over 10 years.

Second: In order to “increase the economic and demographic diversity of those who are able to live in … family oriented neighborhoods,” the HALA group recommends allowing more density within single-family zones. Under this change, the size of permitted construction would not change. But it would become easier to divide single-family homes into multiple units, paving the way for more duplexes, triplexes, rowhouses and stacked flats.

The city's attempts to explain the recommendations have not calmed all fears. Councilmember Jean Godden opposes the HALA recommendations on the grounds that these changes would “threaten the unique look of our city”; she said she wants to “review the consequences of integrating more duplexes and triplexes into single family zones.”

Clearly anticipating this kind of backlash, last Monday’s HALA-reveal leaned heavily on language about equality and spreading the burden of housing across the city. As he discussed the recommendations of the HALA group, Murray spoke, quite poetically, of “economic apartheid” in Seattle. Referencing the work of Harvard Academic Robert Putnam (whom Crosscut interviewed in the spring on the effects of income inequality on children), Murray lamented the growing disparity between the haves and have-nots in Seattle. “One of the frightening aspects … is that that disparity is based on geography,” he said.

Duplexes, of course, are more affordable than a whole single-family home. The thought is that by opening up the option of more density throughout the city, that geography-based disparity might be less acutely felt.

The guidelines in neighborhoods like Windermere or Broadmoor are known as “covenant restrictions” — essentially a standing contract between the homeowners agreeing on certain terms. But, Professor Gregory Silverman of Seattle University School of Law explains, unlike, for example, an employment contract, the property owner is bound by the covenants simply by acquiring the land, not by signing any agreement.

If you’ve heard of covenant restrictions, it’s likely in the context of leftover racism from the early 1900s. Many Seattle neighborhoods, not just the wealthy ones, excluded non-white races. Alki, for example, would not allow Mongolians; part of Queen Anne forbade African Americans. In fact, some of these provisions are still technically on the books, but are unenforceable thanks to the 14th Amendment of the U.S. Constitution.

While restrictions that are overtly exclusionary no longer have any effect, covenants still apply on such matters as banning boat trailers in driveways, hedge height and fence color. Senior centers, though, are often allowed even when they violate covenants. Otherwise, the restrictions could be seen as ageist.

The most extreme example of these covenant or deed restrictions is in Houston, Texas. Houston has no city-mandated zoning laws. But drive from street to street (as this reporter has done) and you’ll see clusters of homes on one block and businesses on another. All of this is accomplished through agreements between neighbors, although the City of Houston does assist in enforcing the guidelines.

Windermere, Broadmoor, Laurelhurst and Blue Ridge neighborhoods all have varying levels of restrictive guidelines. But they share a common, broader goal: protection of the single-family dwelling.

If the HALA recommendations go through, will these neighborhoods be forced to allow rowhouses?

Environmental and land use lawyer (and occasional Crosscut contributing writer) Chuck Wolfe urged caution about any assumption that the issue of duplexes in single-family neighborhoods would be significant. “Most of the action,” he says referring to HALA’s zoning recommendations, “would happen around urban villages.” Whether or not covenant restrictions could stand up against city code would, he said, "depend very much on a case by case analysis.”

But Land Use Planner with Seattle Department of Planning and Development Andy McKim said that if a neighborhood like Broadmoor banded together and said “no duplexes,” DPD would not be able to do anything. The city is only responsible for enforcing the code. “The question becomes how we’d enforce,” he says. The city just doesn't normally involve itself in a dispute over covenants between neighbors, such as might occur if one property owner tried to build something allowed by city code but forbidden by a covenant.

According to Professor Silverman, an owner's use of land may be lawful under a city’s zoning law, but nonetheless violate a restrictive covenant, and vice versa. In the end, the more restrictive rule would determine whether the use is allowed.

"Even though a use might be conforming to a local zoning ordinance," he says, "a homeowners association could bring an action to stop or prevent the use because it violates a restrictive covenant.”

There are a number of court cases that show the restrictive covenants winning in courts over the city code. In one case on Bainbridge Island, two residents of Bainbridge Landing wanted to make changes to their home. They checked the city’s municipal code and found it allowed for their remodel. But the restrictive covenant of Bainbridge Landing did not. The Court of Appeals in Washington — one step down from the Washington Supreme Court — sided with Bainbridge Landing.

In another case, a man in Lake Jane Estates in Sumner, Washington wanted to subdivide his lot, which was allowed under the city code. Again, the community went to the courts to stop him. The case also ended up in the Court of Appeals and Lake Jane Estates won.

And while the Court of Appeals doesn't set the law of the land for Washington State, Silverman says, “I would be very surprised if the Washington Supreme Court didn’t follow that rule.”

The landmass in Seattle taken up by communities with covenant restrictions is relatively small; adding some duplexes to Windermere is not going to solve Seattle’s housing dearth.

When first contacted for comment, DPD officials responded, "It is premature to say there is to be a code change allowing more density within structures throughout the city. The HALA recommendations have just come out. Any code changes will involve careful consideration by the elected officials, including opportunities for public input."

Further, even in the case these code changes were adopted by the mayor and, subsequently, the city council, it is possible they would first be rolled out in a pilot program and not citywide. This approach would allow the city to adjust as it went along.

But the core issue, at least for University of Washington Professor Jeffrey Ochsner, is that “wealthy neighborhoods can protect themselves.” Pulling together other neighborhoods tomorrow and writing new covenant restrictions forbidding duplexes would be, according to Silverman, "very complicated," which likely means only the overwhelmingly wealthy areas currently operating under those restrictions would have the power to resist code changes.

All that said, while creating a restriction would be hard, repealing one, says SU's Silverman, is relatively easy — at least in theory. In other words, if HALA changes came into effect, Broadmoor is free to capitulate and line its golf course with townhouses.

  

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