Shared Roof Appeal Update – January 10, 2019

We filed our opening brief for the upcoming February 8th hearing in Superior Court. A big THANKS to everyone who has helped defray the costs of this appeal to date. Significant costs remain so all donations are truly appreciated.

The brief can be found here. It’s worth noting that the appeal is a challenge to the City Council’s decision to allow the rezone while illegally ignoring the current, applicable land use code. When the Council approves a contract rezone, they are acting in a quasi-judicial capacity, NOT a legislative capacity. They can’t just make up new regulations, they are bound to conform their decisions to existing land code. In this case the Council acted outside their authority.


The Shared Roof project is the catalyst for the appeal but the impetus for the appeal is to prevent this erroneous decision from being applied to other developments in the future. The issue has serious implications for all neighborhoods, where commercial zones share lot lines with residential zones. The code clearly and wisely recognizes the need for upper level setbacks between these very different scale buildings. Air, light, and privacy are important for quality of life and economic value. That setback must occur on the higher density commercial lot being redeveloped.

In the Shared Roof project, the developer is attempting to buy a personal Land Use Code by acquiring the adjacent single-family parcels. SDCI was complicit in allowing this, and the Council knowingly looked the other way. This is not only illegal but sets the terrible precedent that developers could buy their way out of code compliance. The result could be the loss of single family homes when it’s more lucrative for a developer to purchase (and raze) the home on a shared property line to avoid the setback and provide the code-required “buffer” between zones on the newly vacant lot.


The 7009 rezone also does not meet the rezone criteria in the Code. It is also based on an assumption that the future Mandatory Housing Affordability (MHA) legislation will be applied in this area. But that legislation is still being developed. Many communities are submitting amendments to the original legislation including amendment to strengthen and increase the code required setbacks, and limit the areas where it applies at all.

We cannot let Council members casually ignore the land use code in deference to the profit expectation of private investors and developers (on the hope that a few units of “affordable” housing will result). The rules must be applied evenly, fairly, and as written. That is the goal of this appeal.

Note that the hearing has been changed to February 8th. Please consider donating to defray the substantial legal costs of this appeal!

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–Irene Wall and Bob Morgan

We won an important round in the “Shared Roof” appeal. Your support is needed to continue!

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.

If you can help defray the considerable legal expenses please make a donation here. All funds will pay for our attorney’s time and expenses.

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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.

Please support this fight for a fair application of the land use code to protect the livability of our neighborhoods.

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–Irene Wall and Bob Morgan

Why We are Appealing the “Shared Roof” Project

The large apartment development at 7009 Greenwood (“Shared Roof”) violates the required setbacks in the land-use code, and it sets a bad precedent that allows developers to essentially buy their way around the zoning code. These facts were disregarded by the City Council when they recently approved the contract rezone to allow a building that will rise 15 feet above the height of the current zone. There is no reason, except to satisfy the developers financial goals, that this large site could not be developed while providing the required setbacks that even Phinney Flats was required to meet.

We tried to negotiate with the developer to modify the design to meet the required setback between zones while allowing for the added height. They refused. Our only recourse was to file an appeal in Superior Court. This means significant legal cost, but the principle of applying the land use code as adopted and without favoritism is important to the livability of our neighborhood. We don’t want developers to take advantage of this poor decision in the future.

Please read more about this precedent setting action and help with the appeal costs if you can. Click on About Livable Phinney for the reasons we are supporting this appeal. Click on Shared Roof Rezone Appeal for details on the project and the issues on appeal.

Update on Phinney Flats Appeal and Next Steps

Last week, we agreed to dismiss our appeal of the Phinney Flats permit because the City Council recently changed the law to eliminate onsite parking requirements in virtually all urban villages, including the Greenwood / Phinney Urban village, and as a result, made our appeal to the Hearing Examiner moot.

Recall that last July, in our initial appeal, the Hearing Examiner agreed with our arguments that the building setback was too small and that the clerestory on the roof was unlawful, and he also agreed with our position that the City had erred in ignoring actual bus data that showed that the #5 bus route did meet the definition of “frequent transit” that allowed a no-parking building. The Examiner remanded the permit back to Seattle Department of Construction and Inspections (SDCI) to consider that information. The Examiner was persuaded by our factual presentation and ordered SDCI to reconsider in light of those “uncontroverted facts.”

Several months later, SDCI finally issued its Supplemental Interpretation and claimed that the #5 bus was frequent enough to allow the parking exemption for Phinney Flats. We appealed this second interpretation.

Unfortunately, while that appeal was pending, the City Council voted to change the land use code definition of “Frequent Transit Service” to rely entirely on a printed schedule to determine frequency and ignore actual schedule performance or crowding conditions. The new definition allows as few as 3 trips per hour to count as frequent. The new parking code also contained a provision allowing a developer to “elect” to have their pending permit be judged under this new code.

This gave Johnson & Carr, the Phinney Flats developer, a free ride and made our continuing appeal under the original code definition a moot issue. Winning would not have provided any parking relief and would simply have wasted time and money. Our attorney agreed. This is a sad example of the City Council’s preference for developer interests over citizen interests.

Thus, we fared well through our appeal, but then, the City Council ignored common sense and changed the rules. Livable Phinney opposed the parking code changes and dozens of Livable Phinney members and other residents of Phinney Ridge and throughout the City opposed those changes, but the Council ignored all of this. The Council even rejected a reasonable amendment that would have allowed parking mitigation if the neighborhood streets were already at full capacity as they are in the area of Phinney Flats.

While we celebrate our victories that forced the Phinney Flats building to comply with setback and height requirements, we are saddened by the Council’s actions that will saddle neighborhoods with these no-parking buildings. But on the bright side, our appeal called attention to the disconnect between transit use and the need for parking. Proximity to transit does NOT eliminate the need for parking. We also increased awareness regarding how our Council including our Councilmember Mike O’Brien, turns a blind eye to the needs of constituents in favor of ideology and developer interests.

The parking issue will continue to be a problem for our area as other properties along the #5 bus corridor from Shoreline to downtown redevelop with hundreds of new residential units and commercial businesses that could be built with no on-site parking even as King County Metro and the SDOT have admitted that bus service can’t keep up with demand. Car ownership will remain the norm, and on-street parking is oversubscribed.

The Livable Phinney board is investigating other ways of restoring a balanced approach to on-site parking as our neighborhood grows and properties develop at higher densities. The problem is bigger than just the Phinney Flats building. Watch for additional information on this subject in the coming weeks.

We thank all of you for your donations and support of this appeal. You made a difference, even though the Council denied us what likely would have been a victory on the parking issue. We hope you will stay involved as we move on to the next steps of restoring parking sanity in Phinney Ridge and throughout the City.

(You can read the dismissal – a short, technical document – at this link.)

Irene, Jan & Mike
Livable Phinney

Defend Our Victory!

Neighbors and Livable Phinney supporters:

There seems to be a lot going on now regarding Phinney Flats and our Livable Phinney Appeal. We don’t have all the information and answers yet, but can pass on the following:

You may have seen the recent front-page article in the Seattle TimesResidents fight Seattle rules allowing apartment developers to forgo parking. Though it leaves out some potentially critical information, we feel it is generally well presented and balanced. What you may find new in that article, and perhaps a bit surprising, is the indication from Johnson and Carr that they have “dropped” their challenge in Superior Court. We recently became aware that a “motion to dismiss” was submitted recently, but we still haven’t received any official word as to the rationale for that action. Such may or may not be forthcoming?

We’ve also heard that SDCI is in the process of putting together “a supplemental interpretation on the FTS issue”. This would be their answer to complying with the Hearing Examiner’s Decision. We suspect SDCI will either try to show the #5 actually arrives on schedule – or change the definition of FTS to the schedule times rather than actual bus arrivals. Obviously, this does nothing to address the fact that folks moving into the Urban Village will bring cars – that will be parked on the streets in the adjoining neighborhood – even if that neighborhood is over parking capacity now.

Please join us and let our City Council and new Mayor know that this situation is not sustainable or conducive to the livability of our neighborhood. We still have and use cars, EVEN IF WE USE THE BUS!

If you look at the Project web site “Documents” – at this link – you will find the “MUP Cycle 4 Correction Response” dated 10/27/17. That response notes the developer’s compliance with many of our appeal Decision results (upper floor setbacks, clerestory removal, removal of rooftop features, etc.). However there is no indication of parking being added or the matter of frequent transit compliance. We anticipate the City will find a way to work around that matter (see above) – either by new data showing the #5 now meets the Frequent Transit definition, or simply by changing the definition of Frequent Transit!

Regardless of how often the bus arrives, residents will still have cars. The city’s own report on new parking rules admits that at least 30-35% of residents in buildings with zero parking will have cars. Where will they park when the streets are already at capacity? Local businesses will suffer if there is no parking in the vicinity for their customers.

New Parking Regulations Coming

The city has issued the proposals to change several rules related to parking, including redefining Frequent Transit Service and extending the areas where developers can avoid putting in any parking or put in less than the code would otherwise require. See the proposed changes at the link below. The Council will want to rush these changes through so we need to rally support for changes to make parking rules more site-specific and realistic. Watch our site for more information on public hearings or simply write letters starting now to the Council, in particular to Rob Johnson and Mike O’Brien. Addresses for all City Council Members is provided below.

Web site for proposed City Code rules and changes regarding Parking is:

City Council Email Addresses: (note: Tim Burgess is now Acting Mayor until Jenny Durkin is sworn in):

Needless to say, the battle over Phinney Flats is not over yet. We still have legal bills to pay. We hope to engage the City further in this matter of “No Parking Required” for new Development on Phinney Ridge.

Thank you for your ongoing and generous support! Donations can be made directly at the Greenwood Home Street Bank (73rd & Greenwood Ave N) or via credit card:

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Livable Phinney’s comment on proposed Parking Code changes

The Seattle Department of Construction and Inspections (SDCI) recently published proposed changes to Municipal code that will dramatically affect parking throughout the City. These proposed changes can be found here:

SDCI also released an environmental (SEPA) analysis of the draft legislation, and requested public comments. Livable Phinney felt compelled to prepare and submit such a comment/response.

CLICK HERE to download Livable’s Phinney comment on the proposed draft legislation and SEPA analysis.

Some of the proposed changes directly relate to, and in effect negate the effects of, our Appeal and Hearing Examiner’s Decision in favor of Livable Phinney against the Phinney Flats project no-parking waiver. A very brief summary follows:

  • SDCI proposed to change the definition of Frequent Transit Service (FTS) from the current required 15 minute headway to “scheduled” stops while eliminating the 15 minute reference and transferring quantification of this parameter and others to a SDCI Director’s rule only. This clearly ignores the reality bus riders rely on – actual headway. SDIC ignores the Hearing Examiner’s requirement that “actual performance” of bus performance be considered!
  • There is no known study or actual research that concludes an association between
    residential proximity to frequent transit and car ownership. Yet, the City continues to justify the parking exemption in Urban Villages based on that false assumption.
  • SDCI proposed to expand parking exemptions and reduce parking requirements beyond Urban Villages and into other areas throughout the City.
  • SDCI proposed to allow off street surface parking in setback areas, including when abutting a residential lot – now used for landscaping, privacy, maintenance, etc.
  • The ¼ mile “walking distance” to a parked vehicle is based on out-of-state studies, not Seattle where steep grades and inclement weather are serious considerations.
  • SDCI proposes mandatory unbundling of parking (i.e. a parking space lease would be separate from a residential lease). Such unbundled parking would be a disadvantage to lower income residents who would have difficulty paying market rate for necessary parking space.
  • SDCI proposed to actually “Reduce minimum parking for income-restricted housing,
    including for the disabled and other institutional uses”. Don’t low income and disabled residents need parking to get to jobs, transport children, transport supplies, etc.?
  • The proposed code changes don’t address at all the matter of expanding the Restricted Parking Zone (RPZ) program (to disallow permits to residents of “no parking” building or to assure reasonable on-street parking for residents in single family neighborhoods, etc..)

The proposed SDCI code changes are wide-reaching. If approved by City Council, these changes will affect all of us who are concerned about residential parking and neighborhood livability. Please consider submitting comment and/or attending a public meeting when scheduled.

The Phinney Flats Developer (Johnson & Carr) continues with their Superior Court Challenge to our Appeal. Thus, we are still actively fund raising to pay for legal costs. Click the button below to donate via credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at Greenwood Ave. & 73rd St. Thank you!

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ALERT: Developer files court challenge

Friday, August 11th, 6 pm.

Johnson & Carr – the Phinney Flats developers – have today (Friday) filed a Land Use Petition in Superior Court challenging the Hearing Examiner’s decision in the Livable Phinney case.  We just received this news late today. We will consult with our attorney next week and will keep you appraised of our next steps ASAP.

However, this adds urgency to our request for donations to cover our legal costs.  Sadly, Johnson & Carr prefer to escalate rather than make a few changes to bring “Phinney Flats” into compliance with the land use code and to be a reasonable neighbor.

Please help us with additional donations. Click the button below to donate via credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at Greenwood Ave. & 73rd St. Thank you!

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KOMO News: “Phinney Ridge housing project delayed over Metro bus ruling.”

From the KOMO News story, August 2:

Irene Wall and her fellow neighbors with the group Livable Phinney argued that the No. 5 bus doesn’t run frequently enough. Now it’s possible that her battle with the builder could reshape Seattle’s long-term growth plans.

“What we’ve discovered is the city can make mistakes and they do need to be challenged sometimes,” Wall said.

The mistake, Wall said, is how often buses drive by. The developer used bus schedules to say transit was frequent enough that no on-site parking was needed. Members of Livable Phinney checked that against Metro’s actual performance data. They found that bus service failed to meet that every 15 minutes rule nearly 40 percent of the time.

Read the whole story here:

July 26: Livable Phinney issues press release.

Here’s the text of a press release issued July 26, by Livable Phinney. Click here to download a PDF version.


Phinney Ridge Appeal Stops Building with No Onsite Parking

SEATTLE – In a decision issued July 24, 2017, Deputy Hearing Examiner Ryan Vancil
reversed and remanded the City’s approval of the controversial “Phinney Flats”
project, a 57-unit building with no onsite parking in the Phinney Ridge
neighborhood. The project had generated unprecedented opposition in the

“This Decision is a game-changer for making the City accountable for
applying the Land Use Code properly,” said Irene Wall, a board member of Livable
Phinney, the Washington nonprofit corporation that had appealed the City’s
approval of the Phinney Flats project.

The Examiner agreed with Livable Phinney that: 1) the building was too
close to the rear property line and violated the required setbacks, and; 2) the
building had an illegal rooftop structure that did not meet the definition of a
clerestory, and that this structure was placed improperly on the rooftop. A revised
building design will be required.

And, in a ruling with city-wide ramifications, the Examiner also agreed with
Livable Phinney that the City was required to look at actual bus frequency, not just
bus schedules, when allowing an exemption from onsite parking requirements. The Land Use Code allows a multi-use project in an Urban Village to proceed without any onsite parking, regardless of parking impacts, if the site is located within a specified
distance of “Frequent Transit Service,” which requires 15-minute intervals between
buses. The City insisted that a bus schedule showing 15-minute intervals was

But Livable Phinney presented a statistical analysis of actual Bus Route #5 bus times, derived from King County Metro data, which showed that actual intervals between buses grossly departed from scheduled intervals.

“While analysis of bus schedules might be sufficient in most circumstances, when
presented with reliable data showing that bus service does not meet the definition
of frequent transit service well over a third of the time over a period of months, the
[City] cannot simply ignore such information,” the Examiner concluded, and
remanded this issue to the City to consider the actual data.

“This is the first time that statistical evidence has been used to show that bus
schedules are meaningless in the ever-increasing traffic congestion in Seattle,” Wall
explained. “When a bus is unreliable, the City cannot expect people to forego their
cars and rely on unreliable public transportation, and people who ride the bus also own cars.” If the project site does not qualify for the “frequent transit service exemption,”
onsite parking will be required. The developer’s own traffic analysis concluded that
the project will generate more cars than can be accommodated on the surrounding

In addition, Wall noted, “this decision is timely in light of the city’s ongoing
study of parking code changes and changes to the design review process. Despite
extra review sessions, the code violations were overlooked in the case of Phinney

Although the Examiner upheld certain aspects of the City’s decision, the
Examiner’s reversal on key Land Use Code provisions halts the controversial project
for now.


Jeff Eustis, attorney for Livable Phinney: 206-625-9515
Irene Wall, Livable Phinney Board Member: 206-501-9684

Livable Phinney Wins on Key Issues: Phinney Flats Stopped for Now

In a decision issued July 24, the Hearing Examiner ruled in our favor on almost every important issue.

The building must have greater setbacks, the clerestories on the rooftop are unlawful, and the City will be required to evaluate the actual bus headway data we presented before allowing this project to proceed without any onsite parking. This decision will be a game changer for all Urban Villages dealing with the application of Frequent Transit Service parking exemptions.

We will write more later, but we wanted you to know this terrific news. Click here to download the Hearing Examiner’s decision as a PDF.

Thank you for your support in this long struggle! We couldn’t have gotten this far without you. We will be reviewing the decision closely with our attorney to determine next steps.

Livable Phinney has incurred significant legal fees to date. Please help us with additional donations to pay the legal bills for this victory. Click the button below to donate via credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at Greenwood Ave. & 73rd St. Thank you!

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