Hearing Examiner Rules Seattle Must Do EIS, Delays Backyard Cottage Law

OPCD report on ADUs example from Portland.

In a blow to the Housing Affordability & Livability Agenda (HALA), Hearing Examiner Sue Tanner issued a ruling that the City of Seattle must conduct an Environmental Impact Statement (EIS) before moving ahead with its proposed accessory dwelling unit (ADU) changes to single-family residential zones across the city. Drafting and finalizing an EIS would likely delay implementation of the law by at least a year.

Removing code barriers to increase the supply of ADUs was one of the eight “Highest Impact Recommendations” in the HALA committee report. Councilmember Mike O’Brien authored the bill largely following the HALA framework to made it easier to build ADUs. Heeding HALA advice, the law would allow one ADU and one detached accessory dwelling unit (DADU), which are commonly nicknamed backyard cottages, on lots that meet the size requirements.

With roughly 120,000 lots zoned single-family, better ADU laws could have a big impact. The City predicted O’Brien’s bill would generate as many as 4,000 units over twenty years. The HALA committee expected ADUs and DADUs to serve moderate income households in the 80% to 120% area median income (AMI) range. The existing more stringent ADU laws have generated fewer than 300 units (221 last I heard) in the seven years have been legal in Seattle’s single-family residential neighborhoods.

In another delay tactic, Marty Kaplan commented that there haven’t yet been enough opportunity for comments at a September Comp Plan hearing. (Seattle Channel)
The the dispersal of ADUs thus far. (Seattle Department of Planning and Development)

The legal challenge to the ADU law was brought by Queen Anne Community Council board member and homeowner activist Marty Kaplan, who raised more than $25,000 from like-minded folks around the city to cover legal fees. (Josh Feit has good background here.) In addition to the transparency issues that ultimately seemed to tip the hearing examiner against the proposed law, Kaplan’s gripes included parking impacts and a convoluted argument that allowing one ADU and one DADU per lot might open up a development frenzy eating up “affordable” single-family homes in Seattle. Newsflash: single-family homes in Seattle are already not affordable to low and moderate earners.

The hearing examiner also highlighted parking concerns. Bizarrely, the logic of our parking industrial complex is baked into our environmental laws. Thus, preserving parking is misconstrued as an environmental asset, much to the chagrin of climate change activists who’d like to see fewer cars and fewer tailpipe and embodied car emissions rather than more. In fact, environmentalists argue transit-rich cities like Seattle should lead in a societal transition away from car dependence. The environmental impact of a few more people parking on the street (apparently one third of ADU households if Portland is any guide) seems much less than paving more off-street parking spaces because of code requirements enabling bad environmental decisions. More parking spaces mean more impermeable surfaces, more runoff, and more induced demand for driving. There’s your environmental impact.

Sue Tanner thinks we should think about impacts to parking environment. (Hearing Examiner Decision)

The City could appeal the ruling, but that process could take as long as drafting an EIS. The case perhaps provides a lesson for legislation seeking to overcome the homeowner lobby: make sure to include research that thoroughly substantiates the bill and meets the conditions of the SEPA Checklist well beyond what the hearing examiner would require. Also expect opponents to question City staff’s objectivity and issue Public Records Act requests to obtain communications to build their case. If we hope to quickly and efficiently implement HALA to lessen the housing affordability crisis we’re experiencing, we need to be surgical in our legislative efforts.

W-16-004 – HE Findings and Decision – 12.13.16 by The Urbanist on Scribd

We hope you loved this article. If so, please consider subscribing or donating. The Urbanist is a 501(c)(4) nonprofit that depends on donations from readers like you.

Doug Trumm is The Urbanist's Executive Director. An Urbanist writer since 2015, he dreams of pedestrianizing streets, blanketing the city in bus lanes, and unleashing a mass timber building spree to end the affordable housing shortage and avert our coming climate catastrophe. He graduated from the Evans School of Public Policy and Governance at the University of Washington. He lives in East Fremont and loves to explore the city on his bike.

Inline Feedbacks
View all comments

It looks like Washington State has a NEPA-ish law. California does too (CEQA), but in CA’s case, a local ordinance to allow ADUs within the framework of state law is statutorily exempt from environmental review (CA Public Resources Code Section 21080.17). You guys should do something like that. Having supportive policies at the state level can be a huge help.

ADUs are awesome, and I hope Seattle can find its way to truly allowing them without hiding some poison-pill provisions in its zoning that means they are theoretically allowed, but really difficult to build in practice. The devil is in the details. Infill housing is good for the environment since it prevents sprawl and reduces the need to drive. People need more housing. The people fighting this stuff are typically existing middle-aged homeowners who can already afford housing. There are many allies out there in the fight for granny flats: environmentalists (who actually care about and understand the environment), AARP, etc. Build the young-old alliance, and fight the system!


You should read the decision. The system – as represented by OPCD here – has become used to thinking they can get away with anything, but it turns out we still have rule of law. Thanks to middle aged homeowners who spent the time and money to make it happen – that’s the only way we’ve been able to get any traction at all on any of this. You can round up all the allies you want, but if you’re lined up with the developers, you might as well take it easy, because “the system” is for them. If you aren’t, save your money for the courts. You might look over O’Brien’s ordinance, and see what could have been adopted without much trouble, had he not needed to let developers in on the action.


The whole demonization of developers is so tired. Guess what, odds are you live in housing that some “evil, greedy developer” built a long time ago, when people actually said yes to housing instead of using flimsy pretexts like “the environment” to shoot it down (even though infill housing is actually better for the environment!)

Yes, there are people out there who make money by building structures. Their services are critical to the functioning of society and you personally benefit from some of their past work, so get over it. We need to give people the freedom to meet the demand for housing by doing what they think is best with their own property. You don’t like granny flats? Don’t build any. But don’t stand in the way of people who are out there trying to solve the problem.


All right, I won’t call developers evil, if you don’t come around pretending they need our help because they’re crushed under the heels of middle-aged homeowners. When the interests of the two are at odds, the only time we have a chance is in a situation where the prevailing authority is required to rule on the basis of evidence.

Meanwhile, we have development regulations for a lot of reasons, in general because we care about Seattle. Pardon me, but there are lots of things we don’t and shouldn’t allow for the sake of general quality of life, even cutting down your own tree. This is not some Libertarian paradise, we fight for things we think matter.


Damn developers, building homes that people live in. Damn farmers, making food we eat.

Seriously, how the hell did your house get built? Did it just fall from the sky? Of course not, it was built by a developer.

For the life of me I can’t understand why people think there is some powerful developer lobby that controls the city. It is the opposite. The rules make it hard as hell to build even a simple backyard cottage, or basement apartment. As a result, my kids can’t afford to live in this city. Oh, I’m fine. I have mine (a nice house, thank you very much). But my kids, and much of the city is screwed, because God forbid parking becomes difficult.


How long would the EIS take? Would it be expensive?

I say just do it, rather than argue things out in court. Once it’s done, it sounds that like that’s the last hoop to jump through.

Walter Crunch

NIMBYs with lawyers. Yay.

Howard Metzenberg

Such civil litigation over EIS issues has gone well beyond the intent of the original statute. The environmental impact statement scope and process is described here:


Seattle and regional agencies need an appellate court ruling that will limit the scope of such judicial interference to actual environmental issues, as was the original legislative intent. The EIS process has turned into a cumbersome mess in which small groups of well-heeled home and business owners thwart public decision making to delay and run up the cost of public projects.

The legislative and initiative processes themselves are being thwarted by a minority that has no interest in environmental impacts, but uses the openness and the vagueness of EIS process to get its way.


Agreed. It is pretty hard to argue with a straight face that preserving parking requirements is good for the environment. It is quite the opposite. That certainly wasn’t the intent of the original law, and it seems like they should be able to argue that. Otherwise, we will continue to have bullshit rulings like this one (or the one that dragged out the missing link Burke Gilman improvement).


“Also expect opponents to question City staff’s objectivity and issue Public Records Act requests to obtain communications to build their case.” Yes, I think after this, they’ll be a little more careful with their emails. Even the Hearing Examiner managed to throw in an email quote from apparently the same planner who officially found no significant impact because of only small incremental increases to production — ‘expressing satisfaction that it could “unleash tremendous growth in single family areas.”‘ (Find that in paragraph 4 of Conclusions.)

If I’m making the right connection here, the “convoluted argument” about a “development frenzy” was not from Kaplan, it was from an appellant’s witness, William Reid, urban economist brought up from Oregon partly for insight from Portland’s ADU experience. The point is that removing owner occupancy and upping the number of units to three creates a significant potential for investment/rental properties, a “conversion of single-family equity asset property into income property”. The planners affected to not recognize this potential, though the quote above suggests they were aware of it.

You don’t have to be a hard core single family preservationist, to recognize the singular value of home ownership equity. I’ve heard even rather committed urbanist planner types express some enthusiasm for owner occupancy requirements, in connection for example with housing types that might emerge from RSL zoning. I know the development community hates to be left out of the action, but the public policy world should cut them out on this one, and advocate for an owner occupancy requirement. And ditch the 3 units on a lot thing, that was never in the picture in the earlier DPD efforts to work out DADU code improvements. Those code improvements (some would say) would be law by now if it hadn’t been for these two turkeys.

Bryan Kirschner

According to the single family zoning advocates in Seattle something between a quarter to a third of single family homes are currently rental properties (that are, obviously, not occupied). Horse has left barn.


No, it’s not obvious why houses are not occupied… You don’t know what you’re talking about.

Bryan Kirschner

Sorry, not *owner* occupied, left out word (edited to correct)


So you are in favor of subdivisions, as long as they are owner occupied — is that what you are saying? Add a backyard cottage, sell it to someone else, and we are all good, right? While we are at it, does that mean that condos are OK, but apartments aren’t?

Oh, and while we are at it, are you saying we should outlaw the renting of houses? Seriously?


Well, you’re certainly on a roll this evening! On reading what I said there, last year, I didn’t say either of those things, and I assure you they’re ridiculous.

My point has been, among the things that may have made it “hard as hell” to build an accessory unit, the owner occupancy covenant is pretty low on the list, and the limit of one accessory unit never even made the list (DPD’s survey a couple years ago.) Yet these two policies, alone, were the basis for the successful appeal, the year’s delay. Read the decision. And we don’t know that we’re done yet, because of course O’Brien and OPCD can’t let go of those two.

Everything else could have pretty much breezed through. People hate to see the on site parking requirement go, but they’re used to getting it from city hall like that, on this issue and things like height limits etc., and all of that could have been stuffed down our throats with only mild protests. But O’Brien couldn’t just change those things, those practical issues that maybe really do get in someone’s way when they’re trying to put in an accessory unit.

Because what he wants, and whoever’s backing him, is not just more accessory units as we understand them today, he wants to enable a new land use form with 3 rental units on a SF-zoned lot. That’s not what people think they’re supporting. They’re thinking in terms of what they know, the mother-in-law apartment for relatives or maybe a renter. Maybe the occasional back yard cottage, sometimes for a renter. O’Brien could have “removed barriers” for that stuff, for “traditional” accessory units, but that wasn’t and isn’t the agenda. Or whoever’s guiding his hand.


It’s too bad this happened, I’m 100% for this to be implemented, but Mike O’Brien deciding how to implement legislation? Any legislation? Please vote the buffoon out along with Murray.

NE Seattle Greenways

Fun fact- I’m having an oil tank removed from my house, and the contractor asked if the neighbor could move their car parked in an on-street spot. The neighbor tried, but the battery was dead. It had been sitting there so long without being moved (it had been there at least 6 months) that it could no longer be moved. The car is clearly in pretty rough shape.

That’s what we’ve incentivized in our neighborhoods. We have so much unnecessary car storage that people keep their dead cars parked in free, public storage because.. why not? It costs money to dispose of those things, might as well just leave it on the street.

Get rid of all parking minimums, across the board. Period. There should be no parking requirements in any of our zoning laws.


Hello Friend! Cars parked longer than 72 hours can be cited. Call SDOT Abandoned Vehicle Line: (206) 684-8763

Walter Crunch

Good luck. Getting them to show….. reliably.


I bet a lot of the clueless nimby’s who fought mother in law apartments from their perches on Queen Anne have multiple cars parked on the street which either don’t run, or are used very little.


This didn’t have to happen this way. I was at both of the City’s well-attended public forums on ADUs and DADUs last winter, and there was much interest in loosening the regulations. Lots of questions, all of which were thoughtfully answered by Councilmember O’Brien and department staffer Nick Welch. Little outright opposition was heard.

I was fully expecting the City to take this good feedback from the public and come up with a proposal — and then take that proposal back to another round of public forums. “Did we get this right?” is a useful question to ask the citizenry once in a while. But for reasons unknown, that didn’t happen.

They didn’t get it right; they overreached. And with no public forums for people to express themselves, the appeal to the Hearing Examiner should’ve been no surprise.

Public engagement is not “one and done.” The City had an opportunity to work with people to develop a good and effective proposal, one that would not have been appealed, but they muffed it.

Get a grip

LOL @ “If only the city had ceded all asinine and absurd concerns of privileged wealthy and racist NIMBYs, then the legislation would have passed!”

You should get out more.


Newsflash from an African American renter in SHA housing: the city lied. They left shit out of their writing. They didn’t include one single bit of public feedback in their meeting reports. And you’ve been spoonfed shit and gobbled up without thinking.

Don’t be embarrassed by my saying you have no clue what you’re talking about. Just take the time to do a little poking around and reading of your own. Not what others are saying. The original city documents. The hearing examiner decisions. You might be prompted to get out more.


So they left shit out. So they lied. How is that relevant?

This is about parking. Are you saying they lied about parking, and now people are suing, because they thought there was going to be a parking requirement? Even if that is the case, how is the lawsuit defensible? How is it right for the city to require people to build parking when they add density?

disgusted w/ NIMBY 1%

apparently the environment is only for millionaire homeowners like the one leading the lawsuit here, and not for the thousands of people who now face an increased face of displacement in single family zones because of this anti-environmental balogna.

it is shameful.

Mike Carr

You know you don’t understand who a large # of homeowners are who oppose this? There are a lot of Grandpas and Grandmas who own homes in Seattle. Some have different views than yours


Yeah. The old timer Lesser Seattle folks don’t like change.

Yet they live in a dynamic city which is changing rapidly.

It’s called: sticking your head in the sand, and telling kids to get off your lawn


What a remarkably disrespectful, nasty and pointless reply you bothered to write. Save your energy. You’ve won no friends here.