Image via Division Ave blog.

Last week, after residents in his new council district protested a new live-work development in Ballard, city council member Mike O’Brien took the unusual step of slipping a new design review mandate into an otherwise standard-issue omnibus cleanup bill. The change O’Brien made would require design review–a process that can add more than a year to a project timeline–when the combined development proposals on two adjacent lots exceed the maximum for a single lot according to the city’s design review standards. In low-rise zones, which is where the change is targeted, that means that two adjacent lots under development can’t exceed eight units total. That design-review trigger applies even if two adjacent lots are being developed by different builders; more than eight, and you’re looking at an automatic, time-consuming design review.

The amendment, which O’Brien acknowledges was unorthodox, was intended to address developments like the controversial townhouses going in at 71st and Division in Ballard, where six live/work units will replace a single-family home that sat astride two historic lots; in that case, the developer took advantage of an old lot line that hadn’t been used in decades to build three units per lot.

But the change will have sweeping implications for development potential on smaller lots across the city. O’Brien says the new requirement is “intended to address instances where a developer in a low-rise or neighborhood commercial zone will break a project up into a couple of different projects to avoid going through design review.” O’Brien acknowledges that the city already has plans to overhaul the design review process next year, but says that in the meantime, “we’re going to continue to set rules that are going to allow more and more people to live in Seattle, but there’s got to be an expectation that when we set those rules, they are going to be followed.”

Bruce Harrell, who proposed an unsuccessful amendment stripping the design review changes from the omnibus bill, said at last week’s meeting that although “Council Member O’Brien and the [Planning, Land Use, and Sustainability] committee had some good intentions in mind to protect neighbors from developers circumventing the system and using what could be called loopholes and that kind of thing … I just think it’s a little dangerous to do a one-off in the omnibus legislation,” especially when the HALA committee already plans to take up design review next year.

“It should be obvious what he’s trying to do,” Harrell says. “He’s trying to expand the protections to the neighborhood against clever developers” who want to exploit loopholes in the code. “It was an omnibus bill, which is typically for fixing typographical errors and cross references that are incorrect. It’s a cleanup bill, not a heavy-duty policy bill, and I know HALA’s going to be looking very closely at the design review process.”

Developers (and not just Dan Duffus, the small-lot developer who’s been targeted by the city in the past and who is involved in the financing of the Ballard project) are alarmed at the O’Brien changes. In late July, David Neiman, an architect with Neiman Taber Architecture and a member of the HALA committee, wrote a letter to council members about the omnibus bill amendment, which, he said, would discourage development by introducing an extra 12 months or more to the review and permitting process:

The for-sale housing market is quite volatile. Prices can move up or down fairly quickly in a short period of time. Skilled prognosticators feel they can predict market trends a few months out, but not much further. As the timelines become longer, the element of risk becomes unacceptable to the point where investors will not back the project. Townhouses are a for-sale product that can be sold at a profit but does not rent for enough to pay for the cost of construction. If a builder gets to the end of a project and discovers that the housing market has shifted under their feet and they cannot sell for enough to pay back the bank, they do not have the option of hanging on for a better market. The way to manage this risk is to keep project timelines as short as possible. This is not a trivial issue for spec developers. This is the whole shebang.

In another, more urgent letter in early August, Neiman wrote that O’Brien had not responded to his efforts to contact the council member, and said the amendment was “simply magnifying our existing problems by creating more sclerotic, non-productive process. … The entire purpose of the HALA was to end the process of ad-hoc housing policy, take a step back, and try to work forward on details using an overall framework. Please pull this element out of the omnibus legislation and deal with the issues of design review, SEPA, and appropriate entitlement process in a comprehensive way when you review the HALA recommendations next year.”

O’Brien, who is trying to win favor among a northwest Seattle electorate made up largely of single-family homeowners unhappy with the changes that have come to their neighborhoods, has taken votes to restrict density near single-family zones before. In 2014, O’Brien defended legislation restricting single-family development on small historic lots on the grounds of “protecting neighborhood character,” telling me, “The most egregious examples of what’s being built—I wouldn’t want those in my neighborhood.”

Today, O’Brien, who lives in a single-family house in Fremont, doesn’t sound too troubled by naysayers like Neiman who predict the new requirements will only prompt developers to become more clever to avoid design review. “With this new design review process, my goal is that we could come up with a process that creates a path that is attractive to developers, and community and folks can say this is not a bad path to take,” O’Brien says.