Into the Land Use Thicket

This is a continuation of my second post. My apologies, dear reader, but it will be necessary to take a trip into the land use thicket. I will endeavor to make it understandable, but if nothing else, this post should give you a feel for why microhousing has been such a difficult phenomenon to get a handle on for proponents, developers and citizens. Since there is no microhousing section in Seattle’s Codes, it has been necessary for individuals to try to shoe-horn it into existing land-use categories, which may or may not be an appropriate fit. Think of it as the new shoe experience in land use.

Is Microhousing Really Something New?

Some individuals maintain that microhousing is just the latest reincarnation of the boarding house or congregate residence, housing types which they allege have been around forever. However, if that assertion is true, why has the City struggled so with the permitting of these buildings. Even Dianne Sugimura, Director of the Department of Planning and Development,  stated, in a letter to concerned Eastlake neighbors:

[T]his is a nontraditional housing type, but one which we’ve been seeing more in recent times.

A DPD reviewer for one project stated in an October 11, 2011 correction notice:

[A]s you may know, boarding houses are something we have recently been seeing more of, and without the code being written to directly address them, the Department has been in the process of figuring out how best to apply the code requirements to boarding houses.

A proposed rule drafted by senior DPD staff also noted:

The difficulty of distinguishing a single-family dwelling from a boarding house during the plan review process and the diverging definitions and purposes of land use and building codes means that many times the building might be classified as a boarding house for building code purposes and as a single-family residence for land-use purposes, causing confusion for applicants, staff and the general public.

That’s an excellent summary of the situation. Even Seattle developers, who are generally very sharp individuals, had difficulty navigating the permit process. On May 13, 2011, Chip Kouba, of Ecco Design Inc., who stated he had been working with Dirk and Gary Mulhair and Jim Potter on a number of boarding house projects, developing the product as they went, wrote to Roberta Baker of the DPD seeking clarification on a land-use issue. The question was:

[O]n a current project all land-use and structural and ordinance requirements appear to allow us to build a five story building with a basement with vertical congregate residences from basement to roof.… In the past, for a number of reasons, we ended up in townhouse territory, however believe that by definition these would not be included in that definition. If you could address this question, or advise on how best to review this with DPD would greatly appreciate it!

The argument that microhousing/boarding houses are nothing new does not hold water.

A Thicket of Definitions

Not long after I began my research, I became lost in a thicket of definitions. There are definitions for dwelling units in Director’s Rule 7-83, which I will discuss in greater detail shortly, in the Seattle Municipal Code, and the Seattle Building Code. And they don’t all say the same thing….. The Seattle Municipal Code contains definitions for townhouses, townhouse developments, and duplex. Definitions of household and household unit were found in the Seattle Municipal Code: family was defined in Director’s Rule 7-83 and the Land Use Code at the time the Rule was created. Congregate residence was defined in the Seattle Municipal Code, while congregate living facilities and boarding house were defined in the Seattle Building Code.

Finding my way out of this thicket was not made any easier by the fact that the permit for each project contains an area for project description, a column for a brief description of the occupancy group ( as defined in the Building Code) and the occupancy type, and a column for a brief description of the approved land use. Here are three examples of  project descriptions that provide you with a little sense of the creativity involved: (1) Construct South Duplex Townhouse. Establish use as multifamily structures and construct two new triplex structure and one new duplex; (2) Construct 5-unit boarding house. Establish use as 5-unit townhouse and SFR; (3) R-3 Townhouse Boarding House. Approved land uses  for buildings which, in many cases, look a lot alike, were given variously as: multifamily residence or structure, congregate residence, single family dwelling, Some of the projects included, restaurants, offices and live/work spaces.

An astounding admission by the DPD

Three DPD staffers I spoke with, two of them senior staffers, stated: “Look, we understand, these are basically apartments.” While their forthrightness was refreshing, it would have been nice if it had had a greater impact in policy discussions at the DPD.

What is the Permitting/Approval Process for Microhousing? It depends…..

On who you talk to. I decided that I needed to talk to the land use coaches. Surely, they of all people, could clearly and succinctly explain the process for permitting a microhousing project, as well as the governing codes. And so I entered the next thicket. Clear, comprehensive, consistent explanations were in short supply.

Director’s Rule 7-83: How to Use an Outdated Rule Creatively

When I first started investigating this area, I was told by DPD staff that I would not find authorization or documents governing the construction of the aPODments or microhousing in the Seattle codes: it was explained to me that the construction was based on a Code interpretation from the DPD, Director’s Rule 7 – 83. This was also the Rule that Dianne Sugimura cited in her letters to concerned neighborhoods. After obtaining a copy of the Rule, whose subject is “Determining the Existence of a Dwelling Unit for the Purpose of Code Enforcement”, I wondered how a rule for the purpose of enforcement came to be used for the purpose of permitting.  In the last couple months, I spoke with three land use coaches who suggested that what I wanted to look at in terms of construction of microhousing was Director’s Rule 7 – 83. But if one looks at the permitting and planning documents related to the construction of individual microhousing projects, one finds references to the Building Code, Residential Code, Electrical and Fire Codes and a new Director’s Rule 6-2012, which Rule none of the land use coaches had bothered to mention to me. In a memo which I recently saw, the DPD maintains “currently DPD considers microhousing legal under building code provisions for boarding house or congregate housing; and legal through the land-use code-applying applicable zoning rules for building form and scale.” This is incredibly vague, with no references to specific code provisions provided, and it is difficult to believe, seeing the final products that they comply with zoning rules for building forms and scale. Indeed, one of the chief characteristics of the projects is the number of departures they have requested from building scale, modulation, environmental and safety regulations.

Concerned Neighbors Petition the DPD

Concern in the Central District

In early 2011, Bill Zosel, a well-known neighborhood activist on Capitol Hill and in the Central District, wrote to the DPD expressing his “concern regarding a recently issued building permit for a six story building at 433 11th Avenue. Diane Sugimura, Director of the DPD responded to his letter on May 16, 2011. Sugimura noted Zosel’s observation that, although “the project had been advertised in the Daily Journal of Commerce as a 56 unit building, that it had not been required to go through the Design Review process that most buildings of this size are subject to.” She recognized his having “noted the DPD Director’s Rule 7-83 attempts to define when a room  or group of rooms would be considered a dwelling unit”, and stated that the “rule cites a list of factors that may contribute to the determination that a separate dwelling unit exists….” A copy of Director’s Rule 7-83, can be found here. Sugimura related that she had reviewed the plans for the building and that they showed 56 bedrooms, each with their own bathroom, as well as “7 common kitchen areas to be used in a shared [emphasis mine] fashion by the residents of these rooms, that is 8 bedrooms per kitchen.” She stated:

“To date, this type of development concept is not common and is not specifically defined in our code.”

She then proceeded to explain, given the novelty of the development concept, how the DPD had treated such projects:

For units that have 8 or fewer bedrooms, we have treated these as  apartment units or townhomes that happen to have multiple bedrooms. [NOTE: The Land Use Code does not limit the number of bedrooms in a dwelling unit, but does limit the number of unrelated individuals in a household, which is 8.] In other instances they have been treated as congregate residences, when containing 9 or more bedrooms.

Returning to Zosel’s original concern that the project had not been subject to Design Review, Sugimura explained how the DPD handled such development projects.

Our  current code language for determining whether Design Review applies is based on dwelling units, and we do not have distinct language that points to how to treat a congregate residence for the purposes of Design Review so we’ve relied on the definition that a congregate residence is a single dwelling unit, though there may be several congregate units in s single structure.

Sugimura closed her response by expressing appreciation for Zosel’s inquiry, and relating that the DPD had “recently had a few questions about this type of development  from applicants as well as from neighbors,” and stating that the DPD would continue to monitor this type of development.

Concern in the Eastlake Neighborhood

On July 17, 2012, a group from the Eastlake neighborhood, Count Units Properly Please, wrote to Diane Sugimura and Naomi Henry, a zoning analyst, regarding a development being planned at 2371 Franklin Avenue East.

The neighbors requested the DPD to count the number of units as 39, rather than the 5 dwelling units represented by the plans for the project. Director’s Rule 7-83 lists a number of factors to be considered in determining whether a room is defined as a “dwelling unit”, and the neighbors, citing some of those factors,  argued that the areas in the proposed project met the definition of “dwelling unit” under DR 7-83, as well as that found in Seattle Municipal Code 23.84A.008 “D”. They also noted that “boarding house”, which was one of the descriptions of the project in the DPD’s online database was not found anywhere in the Land Use Code. In the event the DPD remained uncertain, the neighbors urged them to contact the project developer to obtain further information, a list of which was provided by the neighbors, on the project before DPD granted a permit. The neighbors alleged that the project developers had characterized the project as a 5 dwelling unit project in order to fall below the thresholds for SEPA and Design Review, which are processes designed to allow public input and conditioning by the DPD on projects “not adequately addressed by Land Use standards and other development regulations.” They further argued that the increased density, which had not previously been contemplated for the neighborhood, would “significantly impact” private and public properties and uses, as well as public infrastructures and services. They closed by requesting a meeting at the earliest convenience of the DPD. A copy of the letter can be found here.

The letter discussed immediately above had been preceded by a letter regarding the same project from Chris Leman of the Eastlake Community Council on June 28, 2012, according to a reply to Leman sent by Sugimura. The letter addressed seven issues Leman had raised in his letter. For our purposes, the most significant section, was her response to Leman’s request that she “[p]lease explain the basis and conclusions of your analysis in light of the 1983 Director’s Rule that provides directions on the features and characteristics that define a space as a unit.” Sugimura begins her response by stating a fact that is obvious from the front page of Director’s Rule 7-83: that it “attempts to clarify what is a dwelling unit for purposes of code enforcement.” She then observes that each “unit” in the Franklin Avenue project “has eight or fewer bedrooms, presumably non-related persons, and one food preparation area.” She then proceeds to provide definitions from the Land Use Code for “dwelling unit” and “household”. Sugimura then dismisses claims Leman had made suggesting that individuals living in a single dwelling unit, with each of them in a separately leasable unit did not constitute a household:

It is not appropriate for us to use the Land Use Code to attempt to regulate the nature of the relationships within a household, such as how chores and expenses are shared. A group of people may live together and still be individually responsible for their share of the rent, and make separate payments to the landlord. We do not believe that such an arrangement causes these people not to qualify as a ‘household’ or ‘housekeeping unit.’ We do not have the authority, or the resources, to police lease arrangements. Leases are not a required part of a permit application when we perform our project review.

She makes an interesting argument, but her argument, especially given that microhousing is not defined in the Land Use Code, and that the Land Use Code has not played a major part in the permitting of these projects seems to be beside the point, other than as a direct response to statements Leman may have made. Further the Land Use Code regulates, directly or indirectly, the nature of all sorts of relationships.

While leases may not be required by the DPD as a part of a permit application, they are required by the Office of Housing as part of the application for the Multifamily Tax Exemption – and the Office of Housing not only has the authority to require them, they, in fact, require them. I know: I have seen copies of the leases used for all the projects that have qualified for the multifamily tax exemption. So it seems a little cute for Sugimura to plead inability to find out what is contained in the leases for microhousing projects. If I can see them, surely Sugimura can. Her ignorance of them seems more a product of a lack of will than of an inability to obtain the information. But then, these separate leases are not convenient to the arguments she makes.

Continuing with her analysis, Sugimura states: “The presence of a kitchen is a key factor in determining whether a group of rooms qualifies as a dwelling unit.” After pointing out how this is considered a factor in definitions of a dwelling unit in both the Land Use Code, and Director’s Rule 7-83, she asserts that “the micro-unit project does not include separate full kitchens, and the occupants must cross through a shared common area in order to access the bedrooms.” Sugimura made the same statement in a response to James Jules of Count Units Properly Please. This last assertion was contradicted by Naomi Henry, who in response to a request from Sugimura, for comments on the draft of her letter to Leman, told Sugimura:

I think it sounds good. I made a few small changes to the third paragraph on page 2. Based on the current floor plan, the occupants won’t cross through the shared kitchen to access the bedrooms.

Let’s do a quick review of various statements that Sugimura has made. Firstly, she asserted that microhousing was a way of providing affordable housing without the need of a public subsidy, but then acknowledged my research showing that over 50% of the projects had applied for or received the multifamily tax exemption. Was this accidental? At the East District Neighborhood Council meeting, in her response to my revelation of this information, she replied: “Well, you got me.” Secondly, she and Richard Conlin claimed at the East District Council meeting in December 2012, that they had received no complaints about neighbors or these projects. Oh really? I guess Sugimura conveniently forgot the letters she received earlier in 2012 and in 2011 raising concerns about microhousing projects. Thirdly, a DPD staffer tells Sugimura that residents won’t cross through a shared kitchen to access the bedrooms, but Sugimura leaves a statement, in two letters to neighbors, that “occupants must cross through a shared common area to access the bedrooms.” Her statement should be contrasted with the statement in a draft Director’s Rule prepared by Rick Lupton, a Senior Land Use Planner:

The buildings are usually configured such that the hallways and stairs that serve the bedrooms are primarily routes to the outside, rather than to the common kitchen and living areas, providing privacy and independence to the resident.

Ms. Sugimura’s credibility with me is becoming a bit threadbare.

The DPD Recognized There Were Problems Long Before 2012: The Need for a New Rule

After relying on Director’s Rule 7 – 83 for a while, the DPD recognized the need for the creation of another rule. Within the DPD, a land-use forum was held on June 22, 2010, for the purpose of discussing dwelling units, in light of land use and building codes section 23.84A and Director’s Rule 7 – 83.

The issue for discussion was presented as follows:

Both in Single Family and Multifamily zones, we have been getting permit applications for dwelling units that contain numerous rooms, each with separate bathrooms. For purposes of the Land Use Code, we have sometimes concluded that a proposed arrangement constitutes a single dwelling unit, but based on the number of rooms and configuration, Building Code reviewers have been inclined to regulate the space as a ‘boarding house’ use, requiring certain improvements, such as sprinklers, that might not be required in a single dwelling unit. This requirement is based on life-safety concerns that may be more likely to arise when multiple rooms are separately rented and occupied by separate individuals. (Although the separate rentals might be inconsistent with treatment as a single dwelling unit under the Land Use Code as well, this is something that it is generally not feasible to enforce.) However, it creates confusion, [emphasis mine] for example, for a building to be regulated as a single-family residence for purposes of the Land Use Code but a boarding house for purposes of the Building Code. How can this be resolved?

A summary of the discussion noted:

Our current determinations for purposes of the Land Use Code are based on the definitions and Director’s Rule 7-83, and some amendments to the code and that rule may be needed if we were to change our practices. This would be a policy choice, and there may be some support for keeping our current practices, to the extent that it is seen as allowing provision of affordable housing. However, in the meanwhile a Director’s Rule could be adopted to require that the higher Building Code standards for a boarding house be met, even if the space is regulated as a single-family dwelling unit for purposes of the Land Use Code, based on factors such as the number of bedrooms, or bedrooms with separate bathrooms.

Out of this process, a new rule was proposed, as early as 2010, and possibly as early as 2009. The uncertainty arises from the fact that a draft of a new rule is entitled “Director’s Rule _-2010, Clarification of Requirements for R-3 Boarding Houses”, but the third page of the draft is headed “Director’s Rule 10-2009”. Could be just one of those Microsoft Word editing problems: someone forgot to change the header, but I don’t have a definite answer yet. The current Director’s Rule 10-2009 concerns Small Diameter Pipe Piles, so has nothing to do with microhousing.

On May 15 2011, Dianne Sugimura asked her assistant to schedule a meeting that week if possible. Ms. Sugimura observed that the Directors Rule 7 – 83 “Zosel referred to is definitely out of date, but has not been revised.” She also mentioned that she had reviewed the attached draft of the proposed boardinghouse directors rule_– 2010 titled Clarification of Requirements for R – 3 Boarding Houses that had apparently been prepared by Rick Lupton.

Information from the Draft Rule

The draft rule was divided into three main sections: background, purpose, and rule. The rule section was further divided into definitions, guidance on how to recognize a boarding house and building code clarifications. The Rule’s purpose was:

To provide guidance in distinguishing a single-family dwelling from a non-transient boarding house, for building code purposes, and to clarify how certain provisions of the Seattle Building Code apply to this small segment of boarding house residences.

A transient occupancy is occupancy of a dwelling unit or sleeping unit for not more than 30 days. (Seattle Building Code 310.2)

One of the chief problems to be addressed was the difficulty of identifying, during the permit review process, whether a building was a single-family dwelling unit or a boarding house. This difficulty arose because:

Interpretations of the Seattle Land Use Code consider residential buildings containing a single household as having no more than eight bedrooms as a single-family residence as long as the occupants are non-transient and there is no more than one rental agreement for the household. If the occupants are transient, the building is considered a lodging use. Where a household includes multiple parties having independent rental agreements, then the building may be considered a multi-family use.

This difficulty in distinguishing a single-family dwelling from a boarding house caused “confusion for applicants, staff and the general public.”

The reason why distinctions had been made between a “one family dwelling”, governed by the Seattle Residential Code, and boarding houses, which were governed by the Seattle Building Code was that residents of boarding houses, who lived more privately and independent of one another were subject to higher life and safety risks, because “each resident has less awareness of the activities and less committment to the well-being of other residents.” The Seattle Building Code addressed these vulnerabilities by imposing automatic sprinkler, exiting and accessibility requirements. Note that the theme of  separateness again arises as a chief motivating factor. Remember this, because underlying every issue as regards microhousing, are the themes of separateness and connectivity.

Given the way that new projects have been developed, you might wonder, as I did, why would anyone have a problem distinguishing a one to two story single-family residence from a 3-5 story boarding house. The answer to that question is to remember that at the early stages of microhousing, most of them did occur in one to two story buildings. Early Mulhair developments were chiefly of that type. Few types of this building had been permitted: one in 2007, 2 in 2008, 1 in 2009, and 2 in 2010. Different trends began to develop in early 2009 with the Mulhair aPODments at 212-216 23rd Avenue and Randal Spaan’s development in late 2010 at 310 17th Avenue.

The first portion of the Rule Section listed definitions from the Seattle Building Code for: boarding house, congregate living facilities, dwelling unit, sleeping unit, and transient.

The second portion of the Rule gave a list of characteristics of boarding houses:

  • contain the maximum number or bedrooms permitted by the Land Use Code (8);
  • individual bedrooms are served by a private bathroom, including tub and shower;
  • sometimes had multiple living areas, with different names, such as living room, recreation room, etc.
  • sometimes a wet bar and under counter refrigerator within the bedrooms. Microwaves and hotplates could be in the sleeping room, but if it contained a stove, it would be classified as a separate dwelling unit. (This item contained a reference to Director’s Rule 7-83 for the purpose of code enforcement.)
  • the ratio of independent area to common area was high compared to a single-family residence
  • the buildings are usually configured such that the hallways and stairs that serve the bedrooms are primarily routes to the outside, rather than to the common kitchen and living areas, providing privacy and independence to the resident.

Next came the information to guide the use of these characteristics:

Where a proposed dwelling unit has one or several of the characteristics listed, evidence of a boarding house shall be considered. If the dwelling is configured to give the residents an independence and privacy from other residents, then the ‘dwelling unit’ shall be considered a boarding house and subject to the [Seattle Building Code] and requirements below. These guidelines may also apply where a two-family dwelling or townhouse is proposed, each dwelling having the characteristics of a boarding house.

This guidance was then provided by a section listing Seattle Building Code provisions that would be applicable once it was determined that a unit was a boarding house. One of the most important was Seattle Building Code 310-1 R-3, which provided a list of R-3 occupancies. If you have been kind enough to stay with me this far, I am not going to burden you with an in-depth discussion of the other provisions. Further, this was just the warm-up for a Director’s Rule that was actually published.

Director’s Rule 6-2012

The subject of this Rule is like the title of a 17th century book: “Building, Mechanical and Energy Code Requirements for Boarding Houses having 8 or Fewer Bedrooms and Less the 2000 Square Feet of Floor Area.” The Rule was published on May 14, 2012, and became effective on June 8, 2012.

This Rule is far less generous with background information and consists chiefly of straightforward policy declarations and detailed requirements governing life-safety, egress (how to get in and out of a building), accessibility, energy, and mechanical. The definitions section is the same except that there is no longer a definition for congregate facilities, there is a new section on the scope of the Rule, and the list of boarding house characteristics is more succinct, and varies slightly from the list in the draft rule discussed above.

The purpose of the Rule was slightly modified to be that of clarifying

the distinction between a single family dwelling unit and boarding house for the prupose of applying the Seattle Building Code (SBC).

The main policy declarations with little background given for their justification were:

  • When a  building is a boarding house under this rule, the boarding house shall be subject to the SBC and shall not be subject to the Seattle Residential Code.
  • For SBC purposes, where the bedrooms are designed or configured as sleeping units and each resident is provided with a level of independence and privacy from other residents, the sleeping units may be considered as together forming a boarding house.
  • Although the Land Use Code allows no more than nontransient and related persons to constitute a household, the Land Use Code does not control the application of the SBC or when a building is a boarding house under this rule.

I think it makes an interesting questions whether the DPD as an administrative unit of the government, and subject to the Mayor’s authority can make these types of sweeping policy declarations. Shouldn’t that be up to City Council as the legislative body in the City of Seattle.

Matters become most interesting when you look at the scope of the Rule. While earlier language states that the purpose of the Rule is to make boarding houses subject to the Seattle Building Code, the scope begins to introduce some wiggle room. Section A.1 of the scope section states:

This rule provides an alternate [emphasis mine] means of compliance with the SBC for proposed boarding houses having:

  • 8 or fewer bedrooms;
  • gross floor area of 2000 square feet or less; and
  • one or more of the characteristics listed in Section C, Characteristics of a Boarding House.

Hmmmm, I am beginning to sense the fingerprints of project developers on this Rule.

Section A. 2 provides that:

When multiple boarding houses are proposed in a single structure, this Rule shall apply when it has the characteristics described in section A.1.

I find it interesting that the word “structure” is used rather than “building”, especially since building is used elsewhere in the Rule. A structure is simply that which is built or constructed (SBC 202). A building is ” any structure used or intended for supporting or sheltering any use or occupancy.” The reason why I find this interesting is that many of the microhousing projects are being treated as having more than two dwelling units as evidenced by the building permits, yet are none the less, listed on the same permit as R-3 boarding houses. The only problem with that is the the Seattle Building Code clearly states that an R-3 building does not “contain more than two dwelling units.” DPD reviewers have even brought to the attention of a project developer by telling them “R-3 Occupancy is limited to two dwelling units per building. Confirm the 2-hour firewall that establishes a separate and distinct building allows for this classification.” Hmmm, now it seems that buildings can contain buildings if the firewalls are configured correctly. Seems to me like a rule made for the benefit of developers. It certainly does not reflect the common understanding of what a building is. Benefiting developers would be consistent with other portions of this Rule, which appear to enact as regulations, those items for which developers were usually required to justify a departure. I will discuss that more in-depth in another post.

Something else that heightens my suspicions about developer influence on what went into this Rule is that items that were considered characteristic of boarding houses, and made them subject to the draft Rule, are expressly declared to make them not subject to this Rule. The Final Rule states:

This rule shall not apply to boarding houses that include multiple living areas, such as living room, family room, recreation room, den , lounge, great room [this is a new item on the list], office, library, media room, game room, bonus room, sitting room, or storage room that are configured to be identical to rooms identified as bedrooms or are combined with a one or a pair of bedrooms or are combined with one or a pair of bedrooms to form a suite.

Could this possibly have been motivated by the fact  that microhousing developers have moved from providing kitchens as a common area in their projects to proposing projects with micro offices, live/work units, common rooms, storage rooms, great rooms (what a surprise to find that on the floor plans), lounge, living rooms, and sitting rooms? I sense the presence of Jim Potter and Randall Spaan, Luke. After a couple smaller posts, I will talk about the handful of developers and architects that are fueling the microhousing boom in Seattle.

Well, I don’t know about you, but I am exhausted by this march through the thickets. Let’s get out of here!