Twilight Zoning in Bellingham: August 2015

Thursday, August 6, 2015

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.

The Rationale for Rental Licensing

There is the definitive experience of cities that have already adopted rental licensing and inspections in the face of exactly the same opposition as we saw in Bellingham over the last decade. Ultimately, each of these cities was proven correct in its resolve to move ahead to protect the safety and health of the renters. We already know that the city of Pasco, WA found that 15% of the units inspected under their program had serious life/safety issues. 10% had mold problems. A full 85% had problems of varying degrees. The city of Gresham, OR performed over 1600 inspections in 2009 and issued, as a result, over 4,000 citations. Lexington, KY performed inspections of units near the University of Kentucky and found that 50% had life/safety issues. Sacramento, CA began an inspection program during which one third of the units inspected had serious safety and health issues. The question why does anyone believe that the condition of rental housing here in Bellingham does not mirror that which is found in cities that have the statistics to show that time and time again the condition of rentals in our cities is problematic? All we have had to date from those who oppose licensing are broad statements by the landlords and their paladins that are completely and utterly unsubstantiated. The Zonemaven has searched in vain for the horror stories that these opponents of licensing and inspections have predicted. On the other hand, The Zonemaven did find over 100 cities that have licensing AND inspections without the catastrophic effect for the rental markets that the landlords would have you believe. (See this blog's sidebar at bottom left for list)

One Reason Illegal Rooming Houses Do Not Work

The limit for unrelated persons at a single family home rental is three residents. Leases are signed by three people who then invite additional renters to join them to lower per capita rental rates. The perverse effect is that rental rates tend to rise under these circumstances making it difficult for single families to rent single family homes. Some local rental agencies facilitate this practice.

"To say that a family is so equivalent to a ragtag collection of college roommates as to require identical treatment in zoning decisions defies the reality of the place of the family in American society, despite any changes that institution has undergone in recent years. Only the most cynical among us would say that the American family has devolved to the point of no greater importance or consideration in governmental decision making than a group of college roommates." (Stegeman v. City of Ann Arbor)

That being said, accommodation ought to be made for protected classes, especially non-traditional unions and group houses for the disabled. These classes are laid out in federal and Washington State law.