Real Change News: Roadblocks to housing: How NIMBYs use environmental review processes to stall affordable housing

BY Ashley Archibald

On March 29, Seattle’s Office of Housing released the final environmental review for the proposed 238 apartments and affordable townhomes to be built on a 34-acre parcel adjacent to Discovery Park.

It goes over the potential environmental impacts of the project in excruciating detail and, by legal requirement, proposes three options, most of which involve using another property, the “Talaris site,” to develop the affordable housing. It is 1,482 pages long.

And, despite months of work after years of delay, it will almost certainly be challenged in court, further stalling the 238 units and keeping hundreds of low-income people trapped in Seattle’s homeless services system.

Welcome to the world of SEPA, the State Environmental Protection Act, a law with a track record of protecting nature and NIMBYs from the perils of overdevelopment and the threat of living near homeless and formerly homeless people.

SEPA is the Washington State version of the National Environmental Protection Act (NEPA). Born amid the environmental movement of the 1970s, the environmental laws constitute a promise to bear in mind the consequences of development and ensure that an effort is made to mitigate negative side effects to the degree possible. Triggered under specific circumstances, SEPA and its brethren act as a governmental pause button.

“The whole premise is that anything the government does, it’s going to look before it leaps,” said Todd Wildermuth, policy director at the Regulatory Environmental Law & Policy Clinic at the University of Washington.

For instance, if a private developer decides to build an apartment complex on top of a piece of property, the government can require an environmental review before issuing a permit.

Alternatively, if another member of the community feels that such a review is necessary, they can sue to block the permit until an environmental review has been completed.

Sometimes, an environmental review is a checklist, a perfunctory dotting of i’s and crossing of t’s. NEPA is classically referred to as a “paper tiger,” a necessary step that lacks concrete consequences.

Sometimes, an environmental review is a checklist, a perfunctory dotting of i’s and crossing of t’s. NEPA is classically referred to as a “paper tiger,” a necessary step that lacks concrete consequences.

And sometimes it’s a 1,482-page behemoth with 80 references to the length and impact of shadows cast by the offending building.

In the case of Fort Lawton, it’s clear why the Office of Housing felt the need to do a complete environmental work up — after all, this isn’t the first time the city has tried to develop affordable housing on the site.

The city made moves in that direction in 2006, but a group of neighbors in the Magnolia Neighborhood Planning Council successfully sued under SEPA to slam the brakes on the project until the city completed the environmental impact statement (EIS). A decade later, the project has fundamentally changed — it will no longer have a market rate component, instead opting to include opportunities for affordable home ownership from Habitat for Humanity, housing targeted to seniors and affordable rental units.

One of the people involved in the lawsuit, Elizabeth Campbell, has already made it clear that she will sue again in the name of converting the entire 34-acre parcel into additional parkland and pushing for the development to take place on a parcel referred to as the “Talaris site,” an option explored in the EIS.

It is worth noting here that the refurbished multi-million dollar townhomes advertised with images of wealthy White people drinking white wine as the sun dips into the tree-lined horizon of Discovery Park was not challenged in court.

This wouldn’t be Campbell’s first suit using SEPA as a way to forestall services and housing for people experiencing homelessness. In fact, it wouldn’t even be the first time in the past 12 months.

Campbell filed a lawsuit in King County Superior Court in October 2017 to prevent Tent City 5, an authorized tent encampment, from taking up residence on an underutilized property called the Tsubota property in Interbay. Among a number of arguments advanced in the suit, Campbell maintained that her objections were based in what was fair and right for people experiencing homelessness; they shouldn’t have to live in tiny houses, which she referred to as garden sheds, and the site’s proximity to busy 15th Avenue was a hazard.

Campers did not seem to mind. Their two years at another site in Interbay was up, and they needed a place to go. In the end they did move onto the Tsubota property, skirting the lawsuit by occupying 12,000 of the 18,000 square feet available at the site and avoiding the SEPA trigger.

Ditto a challenge to the hearing examiner to prevent Seattle Pacific University (SPU) from hosting Tent City 3, another semi-nomadic tent encampment. In a statement published on KOMO’s website SPU expressed surprise that the group Safe and Affordable Seattle, with which Campbell is involved, chose to appeal the decision to allow the encampment to the Hearing Examiner rather than engaging during the public comment period.

Campbell is listed as the point of contact on the Hearing Examiner appeal.

SPU got around the challenge by bringing the nearby First Free Methodist Church in as a partner. Religious institutions have free rein to host encampments as part of their mission.

Campbell did not respond to an e-mail request for an interview for this story.

The SEPA tactic seems to be a popular one in Seattle. At a meeting in the Ballard area on March 22 about a new tiny house village, this one to serve 20 homeless women, opponents invoked SEPA as though it was a protection charm. At one point, Lisa Gustaveson, who works with the city on tiny house villages, pointed out that the site was less than 12,000 square feet, and SEPA did not apply. The crowd did not agree.

SEPA’s role as a wet blanket on housing and homelessness policy isn’t new.

SEPA’s role as a wet blanket on housing and homelessness policy isn’t new. In November 2017, Dan Bertolet at Sightline Institute, a thinktank, explored SEPA and its impact on development in and around Seattle.

Bertolet identified six recent projects — including Fort Lawton — that had been stalled through environmental appeals as well as the successful challenge to Seattle’s policies on accessory dwelling units filed by the Queen Anne Community Council.

Bertolet found that Seattle had also implemented rules governing the spacing of towers downtown in response to a SEPA challenge, and that many of the upzones — areas of the city where developers will be allowed to build taller, denser projects — had been challenged on environmental grounds.

Ironically, Bertolet concluded, the ways that SEPA is used defy its purpose: to protect the environment.

“By enabling dysfunctional process and time-sucking, groundless appeals, SEPA impedes homebuilding,” Bertolet wrote.

“By enabling dysfunctional process and time-sucking, groundless appeals, SEPA impedes homebuilding,” Bertolet wrote. “In booming cities such as Seattle, and increasingly in metros throughout Cascadia and the U.S., a shortage of homes is creating a crisis of affordability that hits the poor the hardest, fuels sprawl and thwarts efforts to cut carbon pollution.”

He proposes saving SEPA by fixing the law at the state level to account for urban development while cities leverage their own control over local planning processes to limit the cases that require an environmental review and putting that work in upfront.

Researchers at the University of California at Berkeley found similar results in a review of California’s environmental law, ceqa, published in February.

Rather than anti-development neighbors slowing down the creation of housing units, the team found that cities themselves had baked time-wasting environmental review into even the most innocuous of projects, causing the amount of time it took to get the same project through a development approval process to vary widely between cities.

In its early working paper the team — Moira O’Neill, Giulia Gualco-Nelson and Eric Biber — concluded that ceqa’s value outweighs the negative ways that it’s implemented, and that California lawmakers shouldn’t throw the baby out with the bathwater.

Wildermuth, the UW professor, has similar feelings on SEPA. Although it can be wielded with a certain toxic cynicism, the law is not inherently bad, even when environmentalism is a secondary goal of its invocation.

“My sense has been that communities are not granted process by a lot of things. Many permits don’t have this kind of full process that goes with it,” Wildermuth said.

“But if you can trigger SEPA, there’s a guaranteed process because it’s laid out,” Wildermuth continued. “People get process where they might otherwise not get it. So, if you’re a community group that’s upset about traffic, for example, or community group that’s worried about nature, you can start waiving the SEPA flag and you can get heard.”

It seems likely that the community will go through another of these processes again with Fort Lawton before the site is ultimately either approved or kicked over to the Talaris site. Hopefully for affordable housing advocates, it will be the latter.



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