Proposed Tree Legislation Awaits its Turn to Add to Seattle’s Housing Woes

 

I have an editorial in the Urbanist today that outlines my objections to Seattle's proposed new tree legislation and frames it within the context of the recent collapse in housing starts caused by over-regulation. The numbers are pretty shocking: Townhouses down 50%, losing 940 homes per year, and apartments down 67%, a loss of over 8000 homes per year. 

You can read the editorial here. Due to the complexity of land use regulation and the limited space available for an Op-Ed (even in a generous publication like The Urbanist), the article isn't able to fully explore legislation in detail. For land use and policy wonks only, I have included a more complete explanation below

Top ten problems w/ the proposed new tree legislation:

1. This legislation will elevate tree protection to a level of scrutiny and review roughly equivalent to the amount of effort we put into geotechnical review. Each project will require a survey, and arborist report, an arborist’s review of plans letter, and likely several rounds of back and forth with reviewers to ask for refinement of documentation on the plans, further detailed field investigation to determine the extent and location of key feeder roots, soil conditions, water table, etc. It will create significant cost and time delay associated with each project, and in most cases, it will just be process for the sake of process.

 

2. The only provision for the removal of exceptional trees (tier 2 trees) in this legislation is a rule that allows for removal if the basic tree protection areas leave less than 85% of the site available for buildings, access, walkways, utilities, etc. This is a rule that is workable for townhouse developments on low-rise sites that have relatively low lot coverage. However, it is totally unworkable for commercial zones, where the building itself typically covers 80% of the site and the flexibility for how the building is configured is minimal. For these types of sites, tree preservation is almost always incompatible with full development to the zoned capacity. There needs to be a general rule that allows trees to be removed if an applicant can demonstrate that preservation is incompatible with development to the zoned capacity of the site. The current tree regulations have such an exception, but it's been written out of these new regulations. Developers are paying MHA fees for every square foot they build in exchange for the last increment of floor-area. Regulations that deny developers access to that development potential essentially turn MHA fees into a taking.

 

3. There will be many instances, particularly in commercial zones, where full development along with preservation of a tier 2 tree might be technically possible but would lead to a bad design. Boards need to have the discretion to allow for tree removal when doing so leads to a building that is more compatible with the design guidelines. Some Tier 2 trees will be exceptional specimen trees, but many of them will be ordinary and otherwise unremarkable. Quite often trees will be designated as Tier 2 because of a low fork in the tree that increases the measure diameter of the tree. There are also a number of trees in the six-to-12-inch diameter range that are designated as Tier 2. We need rules that allow design review boards and planners to make discretionary calls.

 

4. The legislation uses two concepts: “Basic tree protection area” is what we use today. This is the area under the tree canopy. This is easy to define. “Tree protection area” is a more nebulous concept that includes the basic tree protection area but can also be expanded up to twice the area of the tree canopy. Mostly the legislation refers to the more nebulous “tree protection area” in determining portions of the site where you cannot build and where construction activities cannot occur. Leaning heavily on this subjective standard will make it difficult for applicants to understand where they can build and where they can't. It will require the preparation of extensive reports on the part of the applicant which the Seattle Department of Construction and Inspections (SDCI) must then evaluate and whose conclusions they may choose to challenge, leading to a difficult and lengthy review process. This is a swamp into which we will sink countless hours of arborist reports, opinion letters, correction cycles, increased costs, and lost housing.

 

5. All trees >12” are required to be administered with the same care that we reserve today only for exceptional trees (mostly 30” diameter and larger), and no trees >6” can be removed without a building permit. This is a massive increase in the bureaucratic load that SDCI has to carry. This is a problem for housing developers, but the problem is not just associated with new development. 150,000 homeowners who believe they are entitled to the quiet enjoyment of their own land will wake up to discover that they have a whole new relationship with city government that they will not be happy about, and with good reason.

 

6. The inflexibility of these rules and the City’s discretionary role in enforcing and defining a tree protection area is particularly problematic when it comes to off-site trees. It is not uncommon for trees to be planted near property lines and for canopies and root systems to extend from neighboring properties onto a development site. While state law allows for a property owner to limb a neighbor’s tree at the property line, this legislation does not seem to acknowledge any limitation for when a neighboring tree can impinge on the development potential of a neighboring site. Given that the city has the discretion to define a tree protection area as being twice the tree canopy, large portions of a site could be rendered undevelopable by a neighbor’s tree. No remedy for these situations is recognized in the code.

 

7. This legislation requires costly processes both in the permitting stage and during the construction process to protect existing trees, but it also allows removal of trees as needed to facilitate development. Most developers and builders will logically conclude that they should remove every tree possible from a site so as to avoid the costs and bureaucratic hassles associated with preserving them. If this legislation were enacted, it is easy to imagine a situation a few years down the road where people will be complaining about developers clear-cutting sites then calling for further restrictions on new development, when in fact the problem is the costs associated with tree preservation.

 

8. For the Seattle Department of Construction and Inspections (SDCI), the obvious outcomes from this legislation are likely to be:

 

• A surge in applications for hazardous tree removal, which is now the only way to get rid of a tree outside of new development.

• A massive increase in the workload for the SDCI arborist department, leading to a staffing crisis and long delays in permit reviews.

• Significantly increased costs for every permit application for survey, arborist reports, detailed exhibits from the architect, numerous correction cycles, increased permit review fees for all the staff time.

• Increased time required for permit approval.

• Increased disputes between neighbors. As the impact of off-site trees on development sites becomes more significant, the legal landscape becomes murkier, and the stakes become higher.

 

9. This proposal includes 48 new pages of rules. The costs, time, and bureaucratic headache created by it are all chasing after incredibly little benefit. Most of the benefits this legislation aims for could be achieved in a two-bullet point memo.

• New development should attempt to retain existing trees.  Development and construction activities should minimize disturbance of the tree roots underneath the tree canopy.

• Where sites cannot be developed to the full zoned capacity while preserving trees, such trees may be removed, equivalent trees must be replanted on-site, or a fee must be paid to plant them off-site.

 10.        This legislation is all stick; no carrot. The goal of the legislation is to protect existing trees, most of which came into existence simply because people like trees and so they plant them where they can. Instead of trying to leverage our general affinity for trees and encourage the planting of more of them, this legislation proceeds from an assumption that people will cut down trees at the first opportunity they have to do so. The City has an army of people that would be delighted to plant trees on their land, and to help plant them along parking strips and in natural areas. It offers no rewards to the landowners or developers who protect existing trees. On the contrary, it burdens them with page after page of new restrictions on the quiet enjoyment of their land.

Seattle Policymakers Microhousing Tour

 

Guest Post from Liz Pisciotta:

Monday, I had the opportunity to join a tour of microhousing projects that Neiman Taber helped organize. The aim of the tour was to show city policymakers examples of microhousing, from historical SRO (single room occupancy) buildings to today's SEDU (small efficiency dwelling unit) and congregate housing. Our goal was to highlight the need for affordable market-rate housing solutions and to demonstrate how Seattle's regulatory choices have negatively affected our ability to produce this housing. The tour group included leaders from several city agencies, including the Mayor’s Office, the City Council, Office of Housing, SPU, OPCD, SDOT, as well as several developers and architects who work on this building type.

For some time now, David Neiman has been writing about the importance of microhousing as an important tool in the affordability toolkit. Unfortunately, microhousing has succumbed to a slow death by a thousand policy cuts. While many policymakers understand the problem, politicians have been unwilling to expend political capital on the issue. Fortunately, this appears to be changing. The explicit purpose of the tour was to familiarize city leaders with the importance of microhousing as an affordable housing typology, show different scales of microhousing, and to illustrate how policy choices have increased the cost of microhousing or eradicated it altogether. The hope was that the agency leaders will be primed to collaborate on the mayor's effort to develop a comprehensive set of policy prescriptions and legislation to make microhousing more plentiful and affordable, enabling it to play a meaningful role in delivering affordable housing solutions for individuals and couples in core Seattle neighborhoods.

We all piled into a couple of vans and headed off to our first destination: The Helen, a traditional SRO building, built in 1908 and recently remodeled. The apartments at The Helen are simple bedrooms, most of them without a private kitchen or bathroom. Bathrooms and full kitchens are shared down the hall. Think of your typical college dorm set up but nicer. The building is a good example of basic housing that allows people to live in a desirable neighborhood at minimal cost. It's a three-story building with no elevator, no in-building waste room, no bike room, no exercise room, no frills. Buildings like this used to be commonplace and were a key type of workforce housing when Seattle was growing at the turn of the last century. Homes at The Helen rent for $800 to $900 a month, which is affordable to someone making less than the minimum wage (35%-40% AMI). SROs were built before much land use regulation even existed. Once modern zoning codes came along, SROs were pretty much outlawed.

Originally included in the tour but cut for time was Spring Park Flats, a townhouse-style pod micro. Seattle built a couple of thousand units of this type from 2008 to 2014, before the City Council passed legislation that killed off this type of project. These projects feature townhouse clusters with eight bedrooms and eight bathrooms in each townhouse. When they were developed, they were legal to build in any multifamily zone in Seattle, and so they sprung up in locations all over the city. This project type shares some important features with its historical cousin, the SRO. They were simple low-rise buildings with no elevator, no parking garages, and no amenities other than the basic shared kitchens.. They had low barriers to entry because they were small and inexpensive projects, so mom-and-pop scale developers were able to build them, and a lot of them got built very quickly. They delivered affordability, with rents for these simple pod-style townhomes currently ranging from $900 to $1050 per month (40%-45% AMI).

The first two projects are examples what builders produced in the past but were regulated out of existence. The next two projects on the tour are pretty good examples of what Seattle allows instead.
The tour’s next stop was Betula House, a SEDU apartment building. SEDUs are miniaturized studio apartments, and at Betula, they average about 250 sq. ft. per unit. Betula is a new and beautiful apartment building with well-designed units, large windows, and lots of natural light. In 2014, when Seattle prohibited pod-style micro townhouses and severely limited congregate housing, they paved the way for SEDU projects like Betula. Critics at the time complained that the resulting units would be larger, more expensive to build, and as a result, the rents would be less affordable. Unfortunately, the critics were right. SEDU units at Betula are currently advertised at $1400 a month, about 40% more than a room at Spring Flats. Betula was on the tour to make this point, but also made a related one. In the few years it took for Betula to go from the sketchpad to finished construction, new regulations have added so much cost and diminished so much value that the developer of Betula (Ben Maritz) estimated that if he tried to build a similar project today, he would not be able to get the project financed and built unless the rents increased to about $2000 per month.

The final stop on the tour was 500 Broadway, a brand-new congregate housing project located at Broadway and Jefferson, designed by Neiman Taber. The 2014 microhousing code revisions banned congregate housing from low-rise zones but permitted them in limited areas, such as NC3 zones where intensive development might provoke fewer complaints from constituents. 500 Broadway is an example of what happens to congregate housing when you try to build it in these areas of the city.

500 Broadway is an 8-story building, a height that necessitates an elevator. Once you introduce an elevator, accessibility codes trigger a requirement for all units to be accessible. That means larger doors, larger maneuvering spaces, larger bathrooms, and lots of special details throughout the unit. In rough terms, it means that the units get about 20% larger than they would otherwise, increasing costs, and often adding the square footage in the bathroom and other areas that are less than ideal for a small unit used by an able-bodied person. The height of 500 Broadway also requires more expensive concrete construction, which adds significant cost. Bicycle rooms are required to have about three times the amount of storage than building managers see utilized, so essentially, they are bicycle rack storage rooms. This is unfortunate because these spaces could be optimized to provide other amenities, such as a music practice room, an exercise room, or even another unit. We are proud of 500 Broadway, which occupies a prominent corner on First Hill. The building is clad in gorgeous manganese iron spot brick and Oko skin panels imported from Germany. Were these natural design choices for an affordable housing project? Perhaps not, but they were the way to get the project accepted by the design review board.

The basic market-rate units at 500 Broadway rent for about $1200-$1300 per month. To achieve a deeper level of affordability, Housing Diversity Corp., the project developer, struck a deal with the non-profit Enterprise Community Partners to become a partner in the project to lock in affordable rents. The subsidized units start at $1050 per month (50% AMI), which is a great deal to live in a beautiful new project like 500 Broadway with premium finishes, generous shared amenities, and killer views of the skyline. However, we also need to realize that, in just a few short years, we are in the frustrating position where bringing significant subsidies to the table still isn't enough to achieve the level of affordability that a project like The Helen or a townhouse pod building could achieve just through its simplicity.

As we hit the different stops on our tour, I and the other tour guides made sure to drive home a long list of issues that drive up the cost of microhousing. A sample of some key points:  

·       The update to the energy code introduced in 2021 has added about $20,000 of cost per unit — units which cost only $120,000 each to build. This summer will bring a new energy code that will increase costs more. As a firm, we are concerned about sustainability, in fact smaller, denser units are already much more efficient per user than larger units. Unit and user density should be taken into account in the energy code and the code should focus on the energy use per occupant.

·       Due to stricter requirements, many waste rooms now require waste chutes, compactors, and two-story tall internal truck loading docks. Smaller projects cannot absorb these costs and often lose meaningful amounts of housing to oversized waste facilities.

·      New pedestrian zone requirements add expensive oversized canopies and create empty commercial storefronts which are too deep, large, and expensive for small shop owners to lease.

·       Street rental fees to construct projects have ballooned from five figures to six figures.

·       The scope creep of street frontage improvements have piled lots of new costs to projects, often to replace improvements that were perfectly fine in the first place. In addition to the cost of the improvements, the cost of permitting the work is sometimes as expensive as the work itself.

·       It’s a positive thing that we are phasing out fossil fuels but now projects that previously didn’t need in-building transformer vaults require them.

·       Individual projects pay for million-dollar upgrades to aging utility mains, often well beyond the site extents.

·       Congregate buildings are required to provide 15% of the room areas as common space, which makes for a nice building, but these spaces are a luxury that shouldn't be required for basic housing.

·       Subsidized affordable housing are currently exempt from design review. The city should extend this exemption to housing projects that choose the performance MHA path.

·       Congregate housing should be allowed in low-rise zoning. This would provide a lower barrier to entry for multifamily developers and offer more affordable housing in more areas.

What most impressed me about the tour was the in-between times of the day — the conversations in the van or questions in the hallway — curiosity and support coming out of institutions that have previously been openly hostile to microhousing. There was a hopeful spirit of collaboration and excitement.
 
An oft-quoted estimate by the Puget Sound Regional Council is that we'll need to produce 800,000 new homes in the Seattle metro area by 2050. By that measure, we're falling behind year after year. As a city, we have regulated our way into a corner where we can no longer produce the housing we need at prices that the people who most need it can afford. The shortfall has gotten bad enough that the City's top leadership are finally paying attention and that's what this tour was all about. To hit that target and ensure that future Seattle will be a city that has a place for everyone, this is an all-hands-on-deck moment. Certainly, we will need publicly subsidized housing but we will also need market-rate solutions and public/private collaborations if we hope to dig ourselves out of this predicament. We will need to be creative and collaborative.
 
I'm typically a realist — there's a glass and there's water in it. Here’s how the glass currently looks: in the ten years since the term "housing affordability crisis" has been buzzing around Seattle, City leaders have generated policy after policy that has addressed the concerns of individual agencies and constituents in ways that have made all housing more expensive, often disproportionately affecting Seattleites who can afford it the least. This tour, however, made me cautiously optimistic that Seattle can produce effective housing policy and, once again, be a leader in microhousing.
 
-Liz