Since its passage in 1971, the State Environmental Policy Act (SEPA) has been a cornerstone of environmental protection in Washington State. However, in recent years SEPA has become more readily identified with obstruction than protection. SEPA appeals have been used to create decades long delays for projects such as completion of the “Missing Link” of the Burke-Gilman Trail in Ballard and construction of affordable housing at Fort Lawton near Discovery Park in Magnolia. Implementation of backyard cottage reform and Mandatory Housing Affordability (MHA) in Seattle were also both impeded significantly by SEPA appeals.

It’s important to note that Seattle is not the only jurisdiction in Washington to be impacted by SEPA lawsuits. Across the state, many smaller cities have avoided updating their land use and zoning laws out of a fear that proposed developments could trigger costly legal battles they cannot afford to take on.

Thus fear of SEPA lawsuits has quietly suffocated development of new housing supply across the state, leading Dan Bertolet, Senior Researcher of Housing and Urbanism at Sightline, to call SEPA in its current form “a bane to sustainable urban development.”

Construction of the Bullit Center, which advertises itself as the “greenest commercial office building in the world,” was delayed by a SEPA appeal centered on the building’s lack of a parking garage. (Credit: Mark and Andrea Busse)

That was certainly not what SEPA’s creators hoped its legacy would be almost fifty years on, and it is why some local environmental leaders, including Seattle Councilmember Mike O’Brien have expressed enthusiasm for state level legislation passed earlier this year in House Bill 1923, which provides cities with a menu of options for increasing their housing density and then provides “safe harbor,” or protections from SEPA lawsuits, for actions taken from that menu.

“I have not seen in my ten years here an environmental group challenge the SEPA analysis, and that is why I believe we have environmental organizations here today saying we are ready for this to be changed because this law which we have supported is being used to undermine the very policies we are trying to advance,” said Councilmember O’Brien in a recent Planning, Land Use, and Zoning Committee meeting in which he and Councilmember Abel Pacheco introduced Council Bill 119600, which would align Seattle’s environmental review process with recent changes state level changes made to SEPA.

“For too long, SEPA, a well-intended tool originally designed to protect our environment, has been used to delay policies and projects that are desperately needed to address our joint climate and housing crises,” Councilmember Pacheco said in a press release describing the proposed legislation and timeline for implementation.

A tweet from Dan Bertolet of Sightline exhibits the excitement among affordable housing advocates for SEPA safe harbor. (Credit: Dan Bertolet)

What process does Seattle need to follow to gain SEPA safe harbor?

According to Bryce Yadon of Futurewise, passage of the legislation put forth by Councilmembers O’Brien and Pacheco would be the first step toward gaining SEPA safe harbor eligibility for certain projects in Seattle.

Under Council Bill 119600, the City would:

  • Align City code with new state law House Bill 1923 that exempts some City Land Use Code changes from SEPA appeals;
  • Limit Hearing Examiner SEPA appeal hearings to 120 days, with an option to extend to 150 days if all parties agree;
  • Clarify that additional and voluntary subjects covered in an Environmental Impact Statement are not subject to appeal;
  • Update SEPA thresholds for Urban Villages to exempt projects with less than 200 units and 12,000 square feet; and
  • Allow the Seattle Department of Construction and Inspections to create a SEPA Handbook that provides guidelines for consistent analysis.

Underscoring the challenge at hand, even taking this first step toward SEPA reform will take a few months. Councilmember Pacheco has set out a preliminary schedule for consideration of the legislation by the Planning, Land Use, and Zoning Committee.

  • August 7, 9:30am: Committee briefing and discussion of proposal
  • September 4, 9:30am: Additional Committee briefing and discussion
  • September 9, 5:30pm: Public Hearing on proposed changes
  • September 11, 12:00pm: Committee vote on proposal
  • October 7, 2:00pm: Full Council vote on proposal
Public hearings for Mandatory Housing Affordability (MHA) packed the City Council chamber with supporters and protesters. A similar scene is expected for the upcoming SEPA Public Hearing in October. (Photo by author)

SEPA reform has been a contentious topic in Seattle for a long time, and with both supporters and detractors already weighing in on the proposed legislation, it seems likely that September’s public hearing will bear many similarities to the public hearings that led up to both citywide MHA implementation and backyard cottage reform earlier this year.

Given the voting record of the City Council, the expectation is that Council Bill 119600 will pass in October. For housing affordability and density advocates, this is when things will become really interesting because it will be when the City will decide which options for adding density it opts into from the menu provided in House Bill 1923.

The options in House Bill 1923 include:

  • Upzoning areas of at least 500 acres that include a commuter or light rail station;
  • Upzoning areas of 250 acres or more that include bus rapid transit (only applied to cities with a population of forty thousand or more residents);
  • Authorization of duplexes, triplexes, and courtyard apartments in single-family zoned areas;
  • Authorization of accessory dwelling units (ADUs) in single-family zones areas on lots that meet size requirements;
  • Adoption of a subarea plan or a detailed plan for a smaller geographic area within a city;
  • Implementation of planned action, some examples include a comprehensive plan, master planned development, or phased project;
  • Adoption of increases in categorical exemptions that encourage urban infill development
  • Adoption of a form-based code which includes zoning requirements based on physical form rather building use;
  • Authorization of duplexes on each corner lot within all single-family zoned areas; and
  • Allowances for subdividing lots into smaller parcels.
Including courtyard apartments in single family zones throughout Seattle would significantly increase density. (Credit: Tim Patterson)

The City will have the right to opt into as many options as it chooses to, and how significant the impact of the legislation will be depends on what options are chosen. Because of how the calendar is unfolding, the current council should be able to make the calls on what actions will be implemented, although longer term stewardship will rest with the future council elected in November. Additionally, Mayor Jenny Durkan will be also weighing in on what options are selected to enact. Although the Mayor has been supportive of citywide MHA and backyard cottage reform, whether or not she will support actions such as authorizing triplexes, duplexes, and courtyard apartments in single-family zones is an open question. (These areas constitute her base of support.)

Important equity considerations hang in the balance as well

In a letter addressed to the council encouraging them to take advantage of the SEPA reform opportunities presented in House Bill 1923, advocates acknowledged the importance of equity considerations and urged the council to “focus the changes in areas of the city with high access to opportunity and low risk of displacement.”

A letter to the City Council urging support for SEPA reform under HB 1923. (Credit: Futurewise)

This because so many zoning changes have historically occurred in the “areas of least resistance,” said Yadon of Futurewise. These areas are often home to residents who are lower income and have less resources and access to planning.

The City could be prescriptive about how it implements the actions in House Bill 1923, Yadon said, steering them away from areas acknowledged as already being at high risk of displacement.

This would present a major departure from the past when more affluent neighborhoods, such as Magnolia in the case of Fort Lawton, used costly SEPA lawsuits to prevent or delay new development in their neighborhoods.

The tension between who has been able to use SEPA as a recourse and who has not was a major topic of conversation at the committee meeting in which the legislation was presented. “It does seems like we’re doing a disservice to our community at-large when we do allow for those who have access to the ability to have deep funded pockets to fund attorneys,” said Councilmember Teresa Mosqueda, who has advocated for impacts to be analyzed through a race and social justice lens.

The importance of making the SEPA appeal process equally available to all the people of Seattle was also reiterated by Councilmember O’Brien, who called the current situation “very inequitable.”

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11 COMMENTS

  1. So since we are discussing reforms we should consider the Environmental Critical Area (ECA) ordinance. The vast majority of it makes sense — e.g. liquefaction and landslide prone areas — are handled rationally.

    But the “steep slopes” section is nonsensical as non-rational.

    “Steepness” is not a environmental quality which deserves protection… In fact the historical origin of the country “steep slopes” subsection, the entire driver of the ECA, actually, was the desire to protect “greenbelt areas” — which happened to be steep simply because of historical inertia— without paying for them.

    At any rate now is a good time to re-think the entire “steepness” concept and onerous regulations in the ECA.

    • Steep slopes regulations are tied to legitimate public and life safety and the environment. Landslide hazard areas differ because they are in known areas prone to landslides either by prior incidents or geologic conditions that make the designated areas prone to landslide events even if they don’t meet the steep slopes criteria. Steep slopes are determined by steepness that can create unsafe situations for structures and development or undermine otherwise protected critical area features if developed even if not in known or assumed landslide hazard areas. In any case, the regulations are indeed rational.

      • Require the necessary studies and due diligence to show that it’s safe to build on them…As is done in landslide prone areas….

        But there should be no special regulations because a site is “steep”…. it may or it may not be particularly dangerous and should only be regulated because it has particular soil conditions.

        I urge you to look into the regulations & process in detail.

      • 

“Steep slopes are determined by steepness that can create unsafe situations for structures and development or undermine otherwise protected critical area features if developed even if not in known or assumed landslide hazard areas.”



        I have no problem with using “steepness” as an administrative trigger for further due diligence such as requiring more geotechnical studies and structural engineering, if warranted.

        Stating that “Slopes greater than ____% require geological investigation, and if justified, structural engineering if justified.” That would be a totally reasonable framing.



        But one should be able to rebut the extremely onerous, confusing and restrictive steep slope regulations by geotechnical studies.

        
If you want to require the applicant to fund a peer analysis by engineers hired by the City to ensure that the initial studies are not cooked, then fine.



        But “steep slopes”, as restricted by the ECA, are not based on reason and are as an aside, restrictive to building more housing.

        • To be clear: I was speaking about such regulations generally by GMA jurisdictions (I thought you were referring to King County). But I do believe Seattle’s ECA code does provide for exceptions in some cases. I wouldn’t be surprised if a geotech study is required in many of those special exceptions to avail of them. Anyway, the GMA requires jurisdictions to have regulations on the books that protect geologically hazardous areas. That includes prevention of erosion hazards, not just landslides. https://app.leg.wa.gov/rcw/default.aspx?cite=36.70a.030

          • 1. I checked your link and it makes NO reference to “steepness.”
            Indeed it does refer to geological hazards but my whole point is that “steepness” per se may not necessarily be geologically hazardous and your link proves it.

            2. Prevention of erosion is a fine thing and should apply to ALL properties no matter the grade.

            Again, I urge you to investigate the “steep slopes” section of Seattle’s ECA….I think you’ll find it a word salad of confusion.

          • This seems to have become a bit circular. Steepness is related to potential erosion and landslide hazards, which can be classified as geologically hazardous under RCW 36.70A.030(10). Steep slopes is a typical thing regulated by local GMA jurisdictions. Anyway, this is all way off-topic for an article related to SEPA process.

    • I want to emphasize to people who are not familiar with the ECA that there is a section on “landslide prone areas” and there is another entire section on “steep slopes” and they are completely different…

      According to City of Seattle official maps there are many areas of steep slopes which are not landslide prone.

      Let me repeat that:
      According to City of Seattle official maps there are many areas of steep slopes which are not landslide prone.

      • Ok, Steven 😊

        I gather that, in your view, this post may not be the right one for discussing the ECA and I accept that.

        But for the record:
        I thought this stimulating post was about the review of otherwise excellent legislation (SEPA) and reforming it with a particular goal in mind — building more housing.

        I think that the ECA section on steepness is also a needless drag on building more housing. That’s why I raised it here.

        I’ll be happy to continue the discussion whenever you like.

    • Hi Luke,

      Good question and thanks for reading. It was an issue of timing. Olympia’s Missing Middle ordinance became effective in December 2018. HB 1923 became effective July 28th, 2019. The Growth Management Hearings Board (GMHB) resolved the case on July 10, 2019. http://www.gmhb.wa.gov/Global/RenderPDF?source=casedocument&id=6529

      In other words, Olympia couldn’t cite a law that didn’t yet exist. Likewise, the GMHB couldn’t base their decision on a law not yet in force. Olympia could reenact their ordinance now and take the benefit of the safe harbor provision HB 1923 and then the GMHB may rule differently (one would hope). SEPA compliance would be very hard to challenge post HB-1923 enactment but the board could still weigh in on Growth Management Act (GMA) compliance issues and conceivably trip up the Missing Middle ordinance. They might still want to see more analysis of the ordinance (e.g., likely environmental outcomes and effect on infrastructure) as they cited in decision. There is reason to worry still given the GMHB’s interpretations.

      The logic the board used in its decision was troubling such as dinging them for no parking analysis and bowing to the argument that single family zoning = neighborhood character. The traffic analysis they seem to be demanding would be costly and time consuming. And the likely outcome of delaying Olympia missing middle ordiance to do an in-depth traffic and parking analysis it is more growth in suburbs which is counterproductive to the goal of minimizing traffic congestion and lowering climate footprints, anyway. Arguably using the GMA to deny Missing Middle housing turns it into a vehicle for suburban sprawl rather than dense urban in-fill development.

      On the plus side, the GMHB process is typically much swifter than SEPA appeals process which can be drawn out for years. HB 1923 still moves us in the right direction, even if the GMHB could still throw a few wrenches in progressive land use reforms.

Comments are closed.