Judge McKee Rules on Preliminary Motion, In Favor of Wall & Morgan
Background: Irene Wall and Bob Morgan are the citizens who appealed the City Council’s decision to grant a rezone of the property at 70th and Greenwood (the “Shared Roof” project). The appeal also challenges how SDCI applied the land use code to the proposed apartment building when recommending approval of the project. The appeal challenges both the added height and the lack of setbacks between the commercial lots and abutting single family lots to the west.
Latest Action in Superior Court
In response to the appeal, the developer’s attorney filed a partial summary judgment motion seeking to dismiss the key issues related to how SDCI applied the development standards, in particular, the rules about commercial buildings requiring upper level setbacks when constructed next to single family-zoned lots. Judge McKee allowed lengthy argument and briefing on this issue then ruled against the motion. A transcript of her decision can be found here. Shared Roof – Court Ruling – 11-1-2018
To understand the legal issues, read the Wall/Morgan response to the motion. Summary Judgement Response – 10-8-2018
Next is Hearing on the Merits
Her ruling leaves all the issues raised in the appeal open for the trial currently set for early February. This is a significant “win” for Wall/Morgan but this unexpected motion practice was also very costly adding to the financial burden facing citizen appellants who are seeking to correct city errors in applying the land use code where the only recourse is through the Courts. SDCI is not infallible as we found out in the Phinney Flats appeal. There the Hearing Examiner required SDCI and the developer to modify the building design and observe the setbacks following the Livable Phinney appeal.
The Key Issues and Consequences for the Neighborhood
The land use code established the basic requirements for how property owners develop their lots. In the case of 7009 Greenwood, SDCI took a giant leap outside the code to allow the “Shared Roof” building to be constructed on the lot line, which is also the zone line, between the two NC2-40 parcels and the two SF parcels which the developer purchased. The code does not allow for mere ownership to erase code provisions. But SDCI found an expedient workaround by labeling all four parcels a “development site” and declaring that the otherwise required upper level (and other) setbacks were suddenly no longer relevant. If this ruling is allowed to stand, developers can purchase abutting single family homes and build on the property line. This means a major loss of privacy, light, and air for the unfortunate residents of those homes, unless the developer merely razes them instead! Neither is consistent with our Neighborhood Plan, Design Guidelines or the demand for single family homes citywide.
A fundamental principal of the code has always been to protect the lower density zones (SF in this case) from the impacts of higher density development by requiring setbacks on the site of the higher density development. The City Council and SDCI’s erroneous decision in this case turns this principle on its head by carving the mitigating setback out of the SF lots, even counting the modest backyard of the home at 7010 Palatine as a “buffer zone.” This would be the first domino to fall but would lead to a rupture in the established development pattern all along Phinney Ridge and Greenwood where NC zones immediately abut SF zones.
Shared Roof Can Still Be Constructed
The appellants do not seek to prevent the project from being constructed. It will require some redesign to bring it into compliance with the code. That is the same code that was applied to other nearby developments including the Fini condos, the Hendon condos, and Phinney Flats. Another upside to observing the required setbacks is to allow development of a home and potential backyard cottage on the now vacant SF lot. This decision will set a precedent citywide where commercial and low density residential lots abut with no buffer zone.
–Irene Wall and Bob Morgan