We filed our opening brief for the upcoming February 8th hearing in Superior Court. A big THANKS to everyone who has helped defray the costs of this appeal to date. Significant costs remain so all donations are truly appreciated.
The brief can be found here. It’s worth noting that the appeal is a challenge to the City Council’s decision to allow the rezone while illegally ignoring the current, applicable land use code. When the Council approves a contract rezone, they are acting in a quasi-judicial capacity, NOT a legislative capacity. They can’t just make up new regulations, they are bound to conform their decisions to existing land code. In this case the Council acted outside their authority.
THIS APPEAL AFFECTS THE WHOLE CITY
The Shared Roof project is the catalyst for the appeal but the impetus for the appeal is to prevent this erroneous decision from being applied to other developments in the future. The issue has serious implications for all neighborhoods, where commercial zones share lot lines with residential zones. The code clearly and wisely recognizes the need for upper level setbacks between these very different scale buildings. Air, light, and privacy are important for quality of life and economic value. That setback must occur on the higher density commercial lot being redeveloped.
In the Shared Roof project, the developer is attempting to buy a personal Land Use Code by acquiring the adjacent single-family parcels. SDCI was complicit in allowing this, and the Council knowingly looked the other way. This is not only illegal but sets the terrible precedent that developers could buy their way out of code compliance. The result could be the loss of single family homes when it’s more lucrative for a developer to purchase (and raze) the home on a shared property line to avoid the setback and provide the code-required “buffer” between zones on the newly vacant lot.
THE COUNCIL IS IGNORING THE LAND-USE CODE
The 7009 rezone also does not meet the rezone criteria in the Code. It is also based on an assumption that the future Mandatory Housing Affordability (MHA) legislation will be applied in this area. But that legislation is still being developed. Many communities are submitting amendments to the original legislation including amendment to strengthen and increase the code required setbacks, and limit the areas where it applies at all.
We cannot let Council members casually ignore the land use code in deference to the profit expectation of private investors and developers (on the hope that a few units of “affordable” housing will result). The rules must be applied evenly, fairly, and as written. That is the goal of this appeal.
Note that the hearing has been changed to February 8th. Please consider donating to defray the substantial legal costs of this appeal!
–Irene Wall and Bob Morgan