From SCC Insight

While her call for rent control is featured on her campaign posters, Seattle City Council member Kshama Sawant is pursuing another, smaller solution for housing and affordability for Seattle’s most vulnerable — a bill that would expand the city’s ability to establish additional “tiny house” villages and issue permits for more sanctioned homeless encampments.

Her bill has already been tied up in land-use bureaucracy.

Sawant’s bill adjusts the regulations for permitting encampments, of both the tent- and “tiny home” based varieties. It relaxes the rules for where in the city they could be set up, and increases the maximum permitted number of encampments to 40. But since it is a land-use ordinance, it is subject to State Environmental Policy Act review, meaning that the city needs to fill out the SEPA checklist and either make a Determination of Non-significance (DNS), or write a full-blown SEPA Environmental Impact Statement if there are significant expected impacts.

The appeals have become a popular tool for opposing new development and zoning changes in Seattle and cost filers less than a hundred dollars to begin the process.

At the beginning of August, the Council’s Central Staff issued a DNS for the proposed legislation. And Elizabeth Campbell, who is well-known for her legal challenges to the Council’s land-use actions, once again filed an appeal of the DNS with the Hearing Examiner — according to Sawant, thirteen minutes before the filing deadline. That prevents the Council from moving forward with Sawant’s bill until the Hearing Examiner rules on Campbell’s appeal.

Here’s what Sawant’s proposed bill does:

It exempts religious organizations from permitting requirements for encampments on property owned or controlled by them, though they are still subject to a set of safety and public health provisions.

It allows encampments to be set up in any zone in the city, though it maintains the current prohibitions for environmentally sensitive areas. Encampments would be allowed in residential areas, and the current required 25-foot setbacks from any adjacent residential lot are removed.

It removes the one-mile separation requirement between permitted encampments.

It allows the city to set up an encampment on property it leases, not just property it owns. Also on property owned, leased or otherwise controlled by another public entity, such as King County or the State of Washington.

It requires six-foot screening on all sides of the encampment, including street-side.

It removes the two-year limit on permitting an encampment in a particular location. The city may now issue one-year permit renewals an indefinite number of times.

It increases the allowed number of permitted encampments from three to 40 — excluding encampments on property owned or controlled by religious organizations.

The original ordinance authorizing permitted encampments is due to “sunset” on March 31, 2020. This bill would remove the sunset provision entirely.

The big question: This is the threshold question for SEPA analysis: is this legislation likely to have significant impacts on the “environment?” At first glance, it would seem that the answer is yes: it dramatically expands the number of permitted encampments, and the places they can be in the city.

But the city’s DNS argues to the contrary.

First, it says that allowing encampments in any zone, rather than just in a short list of non-residential zones, diffuses them over a much larger part of the city and reduces the likelihood that there will be several in close proximity (amplifying their impact). It also notes that encampments must still be at least 5,000 square feet, can’t be in environmentally critical areas, and have a minimum of 100 square feet per occupant; because of that, the number of parcels of land in the city that meet the qualifications is only 1,112 (under the current rules, there are 389). And with the maximum occupancy of 100 for an encampment, the impact any one could have on transportation and public services in the vicinity is small. Also, the permitting requirements don’t allow for any permanent structures, require an operations plan and a Citizens’ Advisory Committee for each encampment, and place several other restrictions to limit the impacts to the surrounding area.

The city’s determination of non significance argues the legislation will have “minimal impacts on both the natural and the built environment” because “the amendments would not authorize any permanent development” and “most encampment residents are expected to utilize public transportation, and impacts on traffic and parking are not expected to be significant.”

“Similarly, demands for public services on a site may increase,” the DNS reads, “but due to limits on numbers of encampment occupants, the one-year term of use (two-year maximum with renewal option) on any particular site, lack of permanent development, and requirements for hosting agreements with rules for behavior, these increases are not likely to be significant. For these reasons, the proposed code amendments are expected to have minimal impacts on both the natural and the built environment.”

For the most part, the argument is sound. There are, however, two big issues. First, allowing for unlimited renewals of an encampment’s permit opens the door to an argument that they aren’t so temporary after all. The legislation doesn’t say under what conditions the city may decide not to issue or renew a permit, outside of violations of the permitting requirements. And the exemption for religious organizations is a massive loophole. According to the DNS, there are 493 sites in Seattle that are currently used by religious institutions — and if a church buys or leases a plot of land, that would immediately qualify as well. The new legislation removes the requirement that the land be an “accessory” to property currently being used for religious purposes, so any vacant lot owned by a church, anywhere in the city, will do.

The appeal: Campbell’s appeal of the DNS, meanwhile, is poorly written and consistent with her previous appeals attempts to throw everything but the kitchen sink at the DNS in the hope that something will stick. But it does touch on both of the two issues above, and either of them could justify a finding by the Hearing Examiner that either the DNS finding is inaccurate, or the city needs to do a full-blown EIS study.

On the other hand, it’s also possible that Campbell will make fatal procedural mistakes and her appeal will be dismissed before the Hearing Examiner needs to make a decision.

Meanwhile, the Council hasn’t held a hearing on Sawant’s proposed bill yet, so we have no idea how many of her colleagues support it — either in principle, or in the details as she has defined them. It may be that the bill will be DOA, or that there will be significant changes before it ever sees the light of day.

For now, Sawant’s bill is on hold while the appeal runs its course. It is unlikely to be resolved before the end of the month when the Council sets aside other work to focus on the 2020 budget. There is a decent chance that the Hearing Examiner may rule before the budget is done, and if that ruling goes in Sawant’s favor then she can try to push the bill through in the first three weeks of December before the Council recesses for the holidays. But if the SEPA appeal drags out into 2020, then the fate of the bill may depend on an entirely different question: whether Sawant gets reelected in November.