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The Hansen’s Giant Rental Megaplex - Part 2

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The saga continues.

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-Iron Street 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 to Destroy 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 page letter 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.

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About Dick Conoboy

Writer • Member since Jan 26, 2008

Dick Conoboy is a recovering civilian federal worker and military officer who was offered and accepted an all-expense paid, one year trip to Vietnam in 1968. He is a former Army [...]

Comments by Readers

Tip Johnson

Aug 04, 2015

Why do I get the feeling that Happy Valley will not be a protected “historic” district even though my house was originally built in 1893?  Is this another protection that will not extend to low-to-moderate income neighborhoods?

This issue underscores the absurdity of opposing more comprehensive Accessory Dwelling Unit (ADU) provisions that could easily provide many housing benefits through voluntary investment in the private sector.  With only a 2% vacancy rate for rentals, can we do nothing and keep cracking down on people sitting on sidewalks?  Perhaps the applicants should be congratulated for trying, with a no thank you but try this.

ADUs could substantially increase the number of rental units available and provide better diversify of housing stock.  They could provide affordable housing for those in need, helping renters save to buy and assist existing owners with their payments and upkeep - helping prevent the deterioration that often induces conversion.  They could provide better rental supervision and eyes-on-the-property security (less crime) with zero potential for the ‘animal house’ behavior currently exhibited by the four-bedroom “duplexes” in Happy Valley or bonus-room megaplexes detailed here.

Defining single families is problematic and a potential source of expensive litigation. For instance, restricting group living arrangements for people with disabilities violates fair housing laws. Distinguishing between unrelated and related persons and placing a numerical limit on what constitutes a family have both been found to violate rights. Instead, “a definition of family should look to whether the household functions as a cohesive unit and the use of the residence is compatible with other dwellings in an R1 zone.” (http://housingrights.com/pdfs/def_family.pdf - for instance). 

Probably, a better and less illegal definition of family for Bellingham might help, but a better strategy would be to define the types of housing we need (that usually includes something affordable) and develop policies that achieve it and performance standards for how they should work. 

Discriminating between families is still discrimination and discriminating between neighborhoods is just a higher logical level of the same class privilege.

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Dick Conoboy

Aug 05, 2015

Tip,

The council did speak to extending any design guidelines to other than historic districts.  The idea is to develop the guidelines in the historic setting after which the lessons learned could apply to other areas of the city to include the low-to-moderate income areas.  This seems to me to be a reasonable approach.

As for ADUs, they are not going to solve our infill problem.  They are expensive to build (especially if you do them according to building codes - novel idea, eh?) so the ROI may not be evident until years later.  ROI is great on ADUs now because most of them are nothing but old garages converted (clandestinely) into ADUs, AKA low-cost shit holes.  That ain’t going to happen any more.

As long as the definition of family includes protected classes (perhaps our code should be updated in that respect) our current definition of family can stand.  The Supreme Court ruled on that already in 1974 (Belle Terre vs. Boraas) as a legitimate means of controlling density.  You might consider also the decision from Stegeman vs. The City of Ann Arbor in which the judge wrote:  ““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.” 

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Tip Johnson

Aug 05, 2015

ADUs may be the only way to rationally address infill.  They will always be less expensive because the land has already been purchased, streets do not need to be laid and utilities extended, etc. Many of your so-called sh*t holes are the most sought after lodgings in the city, and the owners of such plush accommodations as I have witnessed, say on South Hill, would object to your classist characterization.  Garages are great skeletons for a dwelling.

The Supreme Court also ruled on this in 1995, almost right here in River City.

CITY OF EDMONDS v. OXFORD HOUSE, INC., et al.
Supreme Court of the United States

The parties stipulated that alcoholics and drug addicts were handicapped within the meaning of the FHA.  So, it’s OK for alchoholics and drug addicts, but you just don’t want college students?  That’s just more classism.

“In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling “plainly and unmistakably,” …fall within § 3607(b)(1)‘s absolute exemption from the FHA’s governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.”

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Dick Conoboy

Aug 06, 2015

The Supreme Court case that you quoted above is not about the issue of the legality of codes that define family as our code does.  The issue in the Edmonds case was a protected class (recovering alcoholics) under the Fair Housing Act rules and a city code that not only defined a family but provided apparently for (as they argued) maximum occupancy limits.  The Court states in its decision “The parties have presented, and we have decided, only a threshold question: Edmonds’ zoning code provision describing who may compose a “family” is not a maximum occupancy restriction exempt from the FHA under §3607(b)(1). It remains for the lower courts to decide whether Edmonds’ actions against Oxford House violate the FHA’s prohibitions against discrimination set out in §§3604(f)(1)(A) and (f)(3)(B). For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed. https://www.law.cornell.edu/supct/html/94-23.ZO.html   You will note that our Bellingham code recognizes protected classes although given what constitutes a protected class today our code may need to be updated.  Edmonds did not overturn Belle Terre vs Boraas which rules that for purpose of controlling density jurisdictions can limit the number of unrelated persons in a dwelling unit.  http://law2.umkc.edu/faculty/projects/ftrials/conlaw/belle.html

To continue on the point of ADUs, my article is, in any case, not an issue about ADUs.  That is a discussion for another day, one that began earlier this year with working groups and the planning commission and one about which I will write in the future.  The discussion will continue according to our Planning Director, but I doubt if any supporter of ADUs (I am not against them if properly restricted) sees them as the only solution to infill - with the exception of yourself.  I believe our Planning Director has stated as much before council.

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Dick Conoboy

Aug 06, 2015

This is what Edmonds vs Oxford was all about, reasonable accommodation. http://www.positiveatheism.org/rw/oxford.htm

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Tip Johnson

Aug 06, 2015

If I understand correctly, you agree that, according to the Edmonds case, it is fine for eight folks to live in a SF home as long as they are alcoholics or drug addicts, just not students or unmarried folk. I presume that extends to non gender binary folks and much of the LGBTQIA crowd whose family dynamics are far more complicated and may not be able to meet the definition.  I’m just not sure if it’s the classes of people you want to exclude or the nuisances they may generate, or why you would prefer stricter regulation through family definition over traditional approaches to regulating nuisances.

Are you aware of any cases originating in Washington deciding the family definition issue?  Because I think it may run afoul of Washington State Constitution:

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

I guess I go with the dissenting opinion on that Belle Terre case, and am not surprised you go the other way, however even you might agree that “the blessings of quiet seclusion and clean air” that “make the area a sanctuary for people” are generally reserved for the rich.

And for ADUs, I don’t think they are the only infill strategy, but the least expensive and fastest way to actually increase affordability and improve diversity of our housing stock without ugly impacts, like these conversions, to the neighborhoods.

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Aaron Brand

Aug 07, 2015

It seems to me that the Hansen’s are trying to maximize their profits, having built these homes to the requirements set by the City of Bellingham for in-fill development. But your emotionally-charged attacks do nothing but diminish your assertion that this goes against some broader expectations of the community. If it were any other owner I would expect them to do the same. Please consider looking into the unsustainable practice of “wetland remediation” by developers (current Bakerview Fred Meyer as one example) building actual megapodes and commercial sites within and outside the city of Bellingham. I find no fault in the actions of the Hansen family, and I believe that in-fill development is much more sustainable, in reality, than the building of actual megplexes on sensitive lands. Eutrophication is a global issue that we must address locally.

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Dick Conoboy

Aug 07, 2015

The only emotionally charged attacks I see here were those of the Hansen’s attorneys unless you are mistaking the exchange between me and Tip for a spat. We remain friends but he could have bought me a glass of wine on Thursday evening when I saw him downtown - to kind of smooth things over, eh?

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Dick Conoboy

Aug 07, 2015

Tip,

I understand the need to accommodate under the rubric “family” certain classes of people such as the physically or mentally challenged and that is what our current code does (although it may have to be updated in that regard).  Beyond that, the code does not discriminate.

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