Accessory Dwelling Units - There Is No Rush

 [Note:  This article first appeared on NWCitizen on Nov 16, 2015]

Over the past year, various groups (primarily a focus group, the Planning Commission and the Mayor's Neighborhood Advisory Commission) have met in work groups to discuss the advantages and disadvantages of Accessory Dwelling Units (ADUs) and the need to update the current ordinance.  The last version of the ordinance was passed by the City Council in 1995 but has not been updated since and has largely been ignored, especially the requirement to register such units with the city on a recurring basis.  Notably, the city has been complicit in not actively pursuing landlords who are not in compliance except as the result of a complaint.  The result is unregistered and likely unpermitted dwelling units that put occupants at risk. 

For example, the ADU pictured at left was condemned several years ago and declared uninhabitable after a long struggle between the tenant and the landlord to effect repairs.  Only about 94 ADUs are registered in Bellingham although in neighborhoods such as South Hill, York and Sehome, there are, according to neighborhood residents and association officials, dozens of unregistered and therefore illegal units of poor or unknown condition.

The current attention being paid to ADUs comes about primarily as a result of the requirement to review the ordinance once there are 200 registered ADUs city-wide or any specific neighborhood exceeds 20 ADUs.  The South Hill neighborhood is nearing this number of registered units, although as noted above, the proliferation of illegal units means that quite likely South Hill already has many more than 20 ADUs.

The city is exploring ways to increase infill and density within the city limits.  Although the planning director himself has said on several occasions that ADUs, in and of themselves, cannot substantially add to density or cure the problem of insufficient affordable housing, the city is moving ahead with the review process.  There is nothing inherently wrong with ADUs.  There are, however, problems when the number of existing units is unknown and the current density of neighborhoods is not well understood or quantified.  A proliferation of ADUs in the York Neigbhorhood is not the same as an equal number in Cordata or Edgemoor.

Increased density brings with it the inevitable nuisances of noise, insufficient parking and litter.  The city poorly manages and mitigates these problems in that they are low on the list of priorities for the police, code enforcement and public works.  Problems linger for weeks, months or even years.  In some areas near the university, there is no longer room for additional vehicles.  This situation begs for some sort of control on the number and spacing of ADUs as people who rent them cannot be expected to just get rid of their vehicles.  Statements to the effect that ADU residents will for the most part take public transportation, walk or bike are unsuppported and go against the everyday experience of those now living in crowded neighborhoods, replete with ADUs, many of which are not yet identified by the city in spite of complaints.  The limit of three people occupying an ADU also says the possibility exists that three additional vehicles will be brought into a neighborhood.  In some cases both the main house and the ADU are rented out, thus ignoring the code requirement that the landlord live in either the house or the ADU.  This further aggravates issues related to noise and parking since the landlord is not present as a calming agent and the house may well be stuffed with 5 or more renters, most of whom have cars, who are seeking to lower their individual costs. This is understandable economically, however, if allowed to continue and proliferate, will radically change the character of a neighborhood.

Although there is no reason not to eventually bring ADUs back into the realm of housing possibilities, a current inventory is essential.  The recently adopted ordinance on rental inspections may uncover some units that have not yet been known to the city, however, the rollout of inspections under this ordinance will play out over three years.  What mechanism will the city then use to identify (prior to enacting an ADU ordinance) all existing units?  Without that knowledge an ordinance that specifies the number of ADUs allowed in a particular area will be ineffective and destructive.

The city has to answer these questions before proceeding.  Saying that mitigation of problems will take place later and that present density is not an issue are not acceptable responses.

A work session on this topic will be held before the Planning Commission on Thursday, 19 Nov 2015 at 7pm in the city council chambers of city hall.  Agenda and materials here.

The Hansen’s Giant Rental Megaplex - Part 2

[Note:  This article originally appeared in NWCitizen on August 4, 2015.]

The saga continues.  

Coming Soon to Your Neighborhood

Local lawyers Belcher and Swanson threw the legal equivalent of a hissy fit while representing Cottonwood Units LLC - otherwise known as David and Jon Hansen of Lakeway Realty. This tantrum was in response to the city's "delay" in permitting the Hansens' Iron Street rental megaplexes, even though under code the city has until September 28th to respond. Without a hint of embarassment at having been caught with their hand in the rental-unit cookie jar, the Hansens, through their attorneys, demanded in high dudgeon the immediate issuance of building permits for five-bedroom plus two bonus room "homes." The owner's claim that these homes are five bedrooms plus two bonus rooms is also a ruse to circumvent parking requirements. The houses had already been advertised for rent to seven (or more?) individual tenants on craigslist earlier this year. You can read reports of this attempted sleight of hand in my article of June 1st entitled Hansen-IronStreet Rental Megaplex Planned for York Neighborhood.  

We are witnessing nothing less than an attempt at code-busting which will destroy single family zoning. This is a direct violation of the Bellingham Municipal Code (BMC) regarding the creation of rooming houses in single family neighborhoods. Initially, the city wrote to the Hansens saying the permits would be contingent on the owner's agreement to separate covenants on the property that would preclude turning the megaplexes into rooming houses. Later, the city requirement devolved into "restrictive language" within the permits themselves. Here is that language:

"The residential building and use approved under permit #CMB 2015-00XX was applied for and reviewed as a single family residence as regulated under the International Residential Code and Beliingham Municipal Code (BMC)  Title 20- Land Use Development.  Use of the building as a boarding or rooming house or congregate living facility as defined by the International Building Code and the Land Use Code shall be prohibited.  The use of the property shall be resticted to one single family dwelling unit and at no time may more than three unrelated persons reside in the single family dwelling unit as defined under BMC 20.08.020.  Violation of this condition shall be subject to enforcement action as allowed under City of Bellingham adopted building and land use codes."

As of  yesterday, August 3rd, the building permits so vehemently demanded by the Hansens and their attorneys were still sitting in the permit center at city hall, even though it has been a week since the center notified the applicants that the permits were ready. Ironically, code enforcement action continues on another five-bedroom plus two bonus room home recently constructed by the Hansens on Humboldt Street - see a separate NWCitizen article I wrote on July 7th entitled Family Home for Rent:$44,000/year. The house on Humboldt Street was likely the beta test for the Iron Street megaplexes as the applicant maneuvered it through the permitting process by hiding the intention to use the bonus rooms as bedrooms.

The code enforcement complaint on these yet-to-be-built rental megaplexes has, of course, revived the polemic regarding the so-called "rule of three." That rule was discussed and then ignored by Bellingham City Council a few years ago in the hopes that it might magically disappear. No such luck. At the council meeting on July 27th, Dan Hammill and Terry Bornemann brought up the heretofore unspoken problem behind the five-bedroom plus two bonus room houses, and that is: more than three unrelated persons living together, or in other words, illegal rooming/boarding houses. The term family* - as in "single-family" -  was discovered by our former planning director, Tim Stewart, to be not so easily banished from the BMC since the term is used in other code titles. One way or another, it has to be defined - and therein lies the rub. Unless the council is actively looking to radically change the nature of single family zoning or eliminate it entirely, it must face and confront this direct and deliberate attempt to ignore city statutes.  

All of this may have an eerie ring to it because I wrote about the destruction of Bellingham's neighborhoods one house at a time nearly six years ago in an article on my Zonemaven blog aptly entitled How toDestroy a Neighborhood - One...House...at...a...Time. The city's response to enforcement back then was ready, aim, aim, aim, aim...  Can't we do better now?

But now the neighborhoods are beginning to fight back. The York Neighborhood grabbed this bull by the horns and has not let go. On May 26th, the York Neighborhood Association board submitted a seven pageletter to our current planning director, Rick Sepler, about the "seven-actual bedrooms" illegal use intention. They then initiated a petition campaign and within three weeks had collected 250 signatures, which included 100 collected door-to-door by Sehome residents in that neighborhood. Then, on July 27th they turned in more, bringing the total to 300. The petition called for an investigation, which the planning department is conducting, along with "monitoring" of the situation on the other proposed rental megaplexes. The Sunnyland Neighborhood Association submitted a letter to the city in support of the York Neighborhood. For ALL neighborhood associations, and especially York, Sehome, and Sunnyland, this fight is about protecting single family neighborhoods and stopping the illegal up-zoning that has been going on for years, supported by the rental industry. It appears that we finally have people in city hall who are paying attention to the rules and listening to voices other than those of the developers, landlords and real estate agents.

The petition also called on the council to direct the planning department to begin work on design guidelines for single family historic districts. At its last meeting, the council unanimously approved directing the planning department to study and bring back an approach for design standards of neighborhood character in historic districts. You can watch the video of the Planning Committee's discussion at the city website here. The topic is a direct result of the petition and the aforesaid attempt by David and Jon Hansen, again under the guise of Cottonwood Units, LLC, to build these five-bedroom plus two bonus room homes on Iron Street in the York Neigbhorhood. While new standards unfortunately would not affect the lots on Iron Street, they would provide some future assurance that homes left to deteriorate in historic districts would not be razed in order to build the equivalent of mini-apartment/rental megaplexes. The concept is that any new home construction would have to fit with the character of the street or block's surrounding homes. The council opted to focus on historic areas, after which consideration might be given to expanding the concept throughout the city.

*“BMC 20.08.020 - Family” means one or more persons related by blood, marriage, or adoption, or not more than three unrelated persons, living together within a single dwelling unit. For purposes of this definition, children with familial status within the meaning of 42 U.S.C. 3602(k) and individuals with disabilities within the meaning of 42 U.S.C. 3602(h) will not be counted as unrelated persons. “Adult family homes,” as defined by RCW 70.128.010, are included within the definition of “family.” Facilities housing individuals who are incarcerated as the result of a conviction or other court order shall not be included within this definition.

Hansen-Iron Street Rental Megaplex Planned for York Neighborhood

Three lots in the 1600 block of Iron St. York Neighborhood

 [Note: This article first appeared on NWCitizen]

In what could be an appalling and game-changing precedent for many of Bellingham’s single-family neighborhoods, a megaplex of three seven-bedroom (five bedrooms plus two “bonus rooms”) single-family homes is planned for three adjoining lots on Iron St (1623, 1625, and 1627) in the York Neighborhood by local developers David and Jon Hansen under Cottonwood Units, LLC. A recent, but since removed, Craig’s list advertisement had listed the yet-to-be-built homes for rent (beginning in September) at $3,500 per month plus a security deposit of $250 per adult. The intent to peddle these houses as rentals and not as single-family homes is clear – and illegal. 

One small home, built in 1910, currently sits on the middle lot of the three adjacent properties. The plan, according to a demolition request submitted by the owners, is to raze the existing structure to pave the way to build the three “single-family” homes. This request has occasioned a SEPA (State Environmental Protection Act) review process since the house is within a national historic district. However, it is unlikely the review will result in anything but a DNS (Determination of Non-Significance). The neighborhood is protesting the demolition of the home due to the intrinsically adverse consequences of the destruction of old homes within historic areas.  

More strikingly obvious, though, is the immense damage done to neighborhood character by creating three outrageously oversized houses solely for the purpose of renting each of them to seven or more persons. This is a violation of the Growth Management Act, which mandates the maintenance of neighborhood character. Imagine the effect of having 21 or more tenants on three adjacent single-family lots. This is little more than multi-family housing being created in a single-family-zoned area and is a clear warning sign of a potential domino effect, reminiscent of “block busting,” in which other older homes in the York Neighborhood are bulldozed for the purpose of building other “McMansion” rentals that are nothing but small apartment buildings. It is not lost on the local residents that the Hansens own 33 properties in the York Neighborhood, any of which can subsequently and similarly be targeted for “renewal.” Other single-family neighborhoods ought to be paying close attention, watching to see if the city decides to allow such blatantly inappropriate construction.

As for legality, renting these homes to more than three unrelated people is a violation of the Bellingham Municipal Code 20.08.020(F)(1) - definition of family. Like it or not, the code is currently on the books and was used as legal justification by the Hearing Examiner to limit the size of units in the now-defunct University Ridge project in which the developer illegally proposed four-bedroom dwelling units. The ordinance was the subject of a paper for the Bellingham City Council several years ago in which the so-called “rule of three” was reviewed by the city attorney. As indicated in the Agenda Bill of the time, aside from some federal and state exemptions, such codes are constitutional, having been declared so by the US Supreme Court in 1974 in Belle Terre v Boraas. 

One might also ask about the number of parking spaces that are necessary for three seven-bedroom houses.  The total is 18. Given the very narrow alley at the rear of these lots, the only viable method to provide parking would be to pave the entire back portion of the lots to accommodate the vehicles, not only adding to the footprint of impervious surfaces even beyond the footprint of the “McMansion” rental structures, but also removing any vestige of existing greenery. Moreover, the size of the lots and the calculations for a parking area for 18 vehicles will not pencil out. It will become a parking blivet*. The argument that the tenants will not have cars because they will bike or take public transport has scant basis in fact, although planners will regularly cite use of alternative transport to support infill, however inappropriate - think of the recently approved Forest Garden dormitory project that is to house over 400 students at the former site of the Adventist Church. Taking a bus to work or school does not rule out vehicle ownership for other activities. Not surprisingly, York residents did not just fall off the turnip truck. [Note photo below. These four five-bedroom snout-houses on the 100 block of Ashley St. were built in 2002 solely as rentals. There are regularly 20+ vehicles parked at or around these homes which are located several hundred feet from the WWU Lincoln Park and Ride lot. So much for the contention that the tenants will not have vehicles.]

Four 5-bedroom snout-houses in the 100 block of Ashley St.

The York Neighborhood Association has sent a letter to the Planning Director asking for review of this project on several issues, not the least of which are among those I mentioned above. The neighborhood has also initiated a petition to the city council to request that it, "(1) direct its attention to and investigate this project, (2) provide direction to the Planning Dept. as to appropriate infill for this property located in a Single-Family zoned and National Historic District, and (3) direct the Planning Dept. to begin work on development of Design Guidelines for new construction in residential historic districts."

*An impossible thing that will not fit; ten pounds of shit in a five pound bag.

Student Housing Project Revived for Lincoln St. Development Site

CA Student Living Building at the University of Washington, Seattle

With the failure of Campus Crest last year to move forward with its plans to develop a student housing complex south of the Fred Meyer store, the Puget neighborhood breathed a sigh of relief. Neighbors who expressed the most concern, and rightly so, were the residents of the mobile home park on the east side of Lincoln St. just opposite the planned commercial/residential mixed-use site. The reprieve was predictably temporary as CA Student Living, a subsidiary of CA Ventures, plans to build a similar apartment complex but with somewhat less capacity than the Campus Crest group had planned. An article by Oliver Lazenby, entitled National Real Estate FirmRevives Apartment Project Near Fred Meyer, on the sale and project plan is available on the site of the Bellingham Business Journal. 

Lazenby writes that the new developer "plans to construct housing for hundreds of students by fall 2016, [according to] John Diedrich, CA Ventures’ VP of Investments. [Detdrich] said in late March that the company hopes to start construction in a couple weeks on 13 buildings with 230 units and about 640 bedrooms." You can read my previous articles on the Lincoln St. development plans here, here and here.

I have been in touch with the planning department. They have not as yet received any officially submitted plans. As I mentioned in several of my previous articles (linked to above), there were two residential developments/approvals plus a commercial component for the entire site. CA Ventures has purchased both residential sites. The planning department indicates that their discussions revealed the buyers intend to modify their design review approvals and make minor changes to the overall site plan. In the meantime, as indicated in the Bellingham Business Journal piece, the developers will continue work on portions of the approved design while going through a review process for the modifications.

Under the original approvals there were a total of 391 dwelling units. Under Campus Crest, 216 were slated just south of Fred Meyer with an entrance onto Lincoln and another 175 further south with an entrance on Maple St. near the carwash. The new developers may be submitting a modified plan that will create approximately 230 units for both sites, but without officially submitted plans there is no confirmation. Planning has informed the applicant that it will need to resubmit for amendments to the original design review approvals. After this material is submitted, the planners will be able to determine what public process (neighborhood meeting, public notices, etc.) may be needed.

Given the previous meetings with the public on this development, the city is well aware of the concerns expressed by the surrounding residents and neighborhood groups. It is somewhat encouraging that the new owners may actually build out a smaller overall project than previously considered. There does remain the question of the fate of the acreage known as University Ridge at the corner of Nevada and Consolidation. An attempt to build a dormitory-like complex there for 500-600 students was rejected by the neighborhood and eventually, and luckily, strangled by the Hearing Examiner. Also nearby is the nearly two acres on Ashley St. just to the east of the Lincoln St. parking lot. If rezoned to Commericial Planned (the City Council hearing is on Monday, 4 May), another mixed-use apartment/retail complex, albeit much smaller, could be built on that site. The problem is the cumulative effect of all these plans, and the ability of the public to understand and the city to react to the overall effect on the neighborhoods. 

[Note:  This article also appears on NWCitizen]

A Brief History of Bellingham's Rental Ordinance

This month's Whatcom Watch published my account of the events surrounding the development and passage of Bellingham's rental registration and inspection ordinance.  The article, entitled simply Rental Inspections in Bellingham, traces the ordinance from recognition of the problem of unsafe rentals, even as far back as the 1990s.  Click on the title (in blue) above to read the article.

Final consideration (third reading) of the ordinance will take place at tonight's (9 March) city council meeting at 7pm.  Earlier in the day (1:25pm)  the Committee of the Whole will discuss the measure with staff.  See the agenda bill here.

Dealing with Meth Contamination - A Race to the Bottom in Whatcom County

 [This article by me first appeared on 25  February 2014 on NWCitizen.]

Methamphetamine contamination of homes in Whatcom County is a serious problem that can affect all housing: private homes, rental units and motel rooms. One need go no further than the recent condemnation of the Aloha Motel which had severe meth contamination of many of its rooms, some of which were occupied by families with small children. Just one year ago a rental home on Myrtle St. was condemned as unfit for human habitation due to meth contamination. A short while ago I asked the Bellingham City Council to add inspection for meth contamination to the checklist for rental inspections that is being developed in conjunction with a rental registration program. Council demured.

With this as a background, the Whatcom County Health Department approached the Whatcom Health Advisory Board last May and June asking them to modify the county ordinance on meth contamination of illegal use sites (as opposed to meth manufacturing sites) such as hotel rooms and dwelling units. The Public Health Advisory Board agreed and the County Council is scheduled to consider these changes in a hearing on 3 March. (You can read the agenda bill from 10 February with the draft ordinance here.)

Presently, the mitigation of a contaminated site is the same regardless of whether the site was for manufacture or illicit use of meth; contamination levels are contamination levels in either case. Under current law, the supervision of a mandatory cleanup costs the Health Department about $1,000, and because the department supervises about 15-20 of these remediation efforts per year, they were feeling the fiscal pinch after losing grant money that previously covered the cost. As awareness of possible contamination rises, whether for manufacture or illicit use, the county is on the hook for managing an increasing number of cleanup sites.

The idea behind the new recommendations is to “decrease financial and enforcement barriers to self reporting and cleanup” of these illicit use units - which includes rentals. The changes would substitute “technical assistance” to property owners versus the mandatory cleanup regimen currently used for meth manufacturing. It is not clear how this substitution will encourage property owners to come forward.

The revised county ordinance would also increase permissible levels of meth contamination from .01mg/100 square centimeters to 1.5mg/100 square centimeters, although no level of contamination has been proven to be safe.  Those who have compromised health to begin with can indeed be at greater risk than the general public. [Note: This change in contamination levels is not optional for the county since it must conform to levels stated in the RCW.]

The landlord of the Myrtle St. rental refused to pay for testing of the home when the student tenants reported health problems.  (Read more on this here and here)  The students paid for the tests themselves and discovered a contamination level of 1.4 mg/100 square centimeters, well above the .01mg/100 square centimeters which was the minimum acceptable level at the time. By raising the minimal levels to 1.5mg/square centimeters as in the proposed ordinance, the Myrtle St. property would not be considered contaminated. Not surprisingly, further testing at Myrtle St. at the time by a contamination abatement contractor found levels at 4.2mg/100 square centimeters, well above even the expanded levels proposed to the County Council. Under the current changes, these extremely high levels would never have surfaced and the women would have been left to their own, limited devices.

So who loses under this proposed scenario? The tenants, the hotel room occupier, the purchaser of a home.  With contamination considered anything over 1.5mg/100 square centimeters, the property owner, landlord and hotel management get a pass. Nothing will cloud the property title with respect to meth use sites under the new regime. Furthermore, it all comes down to money: the county will save on abatement management costs and the landlord/home owner will save with more lenient clean up rules. The home purchaser, the tenant and hotel guest will take on more risk. This is a race to the bottom in health management.

Note to readers:  An agenda bill for the proposed 3 March hearing is now posted on the county council's website.