The Court Orders a Remand of “Shared Roof” Decision Back to the City Council
Background: Livable Phinney is providing the use of its website to apprise our neighbors about the legal challenge to City Council’s decision to allow a contested rezoning of the property at 7009 Greenwood (the “Shared Roof” project). More background information is in earlier posts on this site.
Superior Court Hearing and Outcome – A Partial Victory
Superior Court Judge Ken Schubert presided over the hearing on February 8th. The issues revolved around compliance with the Seattle land use code that requires building setbacks between single family and commercial zones unless there is a “major physical buffer.” The code defines major physical buffers as “topographic breaks, lakes, rivers, streams, ravines and shorelines; Freeways, expressways, other major traffic arterials, and railroad tracks; Distinct change in street layout and block orientation and (lastly) open space and greenspaces.”
When the City Council approved the rezone, they added the condition that the undeveloped SF lot must remain a landscaped open space. However, that only provides a partial “buffer” since Shared Roof building will extend across the entire backyard of the developed SF home at 7010 Palatine. Further the developer’s plans encroach on the backyard to build a wall and a concrete walkway behind the Shared Roof building. And the SF home at 7014 Palatine will also feel the effects of a 55-foot tall building at their SW corner.
At the hearing, Judge Schubert indicated that he could accept the concept of the vacant lot serving as a buffer but did not find evidence to support treating the backyard of the 7010 home as meeting that requirement. On March 5th, he remanded the matter back to the City Council to amend their decision. The problem is that his remand order is flawed. It usurps the Council’s authority to determine the appropriate mitigation and conditions for granting rezones and it specifies that the Developer gets to choose from two options selected by his attorney, neither of which resolves the fundamental problem which led to the appeal nor are they consistent with the code.
The Next Step – Seek Reconsideration of the Order
On March 15th the Appellants requested that the Judge reconsider his decision about the terms of the remand. Find the Appellant’s Motion here.
The Judge will entertain a motion for reconsideration and now we will have another round of briefing on this issue of how to write the remand order to preserve the authority of the City Council when authorizing contract rezones and the required conditions imposed when granting such a special privilege to a developer/property owner.
While the Appellants reject the loose interpretation allowing the vacant lot to be considered a major physical buffer, we are not seeking to overturn that aspect of the Court’s ruling. We are hoping that the Council, when they consider the implications of this decision, will further amend the terms of the contract rezone and reject the “development site” argument that allows a developer to buy their way out of compliance with the code by purchasing adjacent SF homes and calling their backyards a major physical buffer between zones. This would create a situation along many blocks of Phinney, Palatine and Greenwood, where developers will outbid potential homeowners for those houses adjacent to the commercial zone and allow oversized buildings to rob those backyards of light, air and privacy that the code is supposed to protect.
The complexity of this case has created even greater legal costs than originally estimated. If you can contribute we would be most appreciative!
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—Irene Wall and Bob Morgan