Will These Four Housing Bills Pass the Washington State Legislature This Year?

Four land use bills affecting housing are at a critical juncture in the 2019 session of the Washington State Legislature. Both houses have passed reform bills that would reduce liability for condominiums, mandate cities reasonably accommodate accessory dwelling units, increase the number of lots that could be created through a short subdivision, and mandate that cities take action on providing more housing options. Where these bills end up and whether they will meet final passage remains to be seen, but there has been a lot of progress and tough conversations on them this year.

Housing options bill: awaiting Rules Committee and Senate floor vote

The housing options bill (House Bill 1923) has passed out of the House and made it through the committee process in the Senate. Along the way, the bill has been refined and went back and forth from obligatory to voluntary participation. The current version that the Senate would pass is an obligatory mandate. Cities with a population of 40,000 or more and required to plan under the Growth Management Act (GMA) would need to select at least two actions to increase residential density by April 1, 2021, including the following measures:

• Allowance of an average of 50 dwelling units per acre and requiring no more than one parking stall per two dwelling units in multifamily areas on a minimum of 500 acres around commuter rail or light rail stations.
• Allowance of an average of 25 dwelling units per acre and requiring no more than one parking stall per two dwelling units in multifamily areas on a minimum of 500 acres in cities with a population of more than 40,000 or a minimum of 250 acres for cities with a population less than 40,000 around bus stops the provide high frequency service.
• Adoption of a subarea plan using the planned action ordinance provisions under RCW 43.21C.420.
• Adoption of a subarea plan around high capacity transit using the planned action ordinance provisions under RCW 43.21C.440(1)(b)(ii).
• Adoption of the highest categorical exemptions for residential or mixed-use development under RCW 43.21C.229.
• Adoption of a form-based code in one or more zoning districts.
• Allowance of a duplex on all corner lots in zoning districts that allow single-family housing.
• Allowance of lot size averaging to maximize division of land for housing.
• Adoption of a minimum net density allowance of six dwelling units per acre.
• Allowance of at least one duplex, triplex, or courtyard apartment on each lot in at least one zoning district that allows single-family housing.
• Requiring no more than one off-street parking space per two bedrooms in multifamily zones located with a half-mile of a light rail or commuter rail station.
• Allowance of attached accessory dwelling units on lots at least 3,200 square feet in size and attached and detached accessory dwelling unit on lots at least 4,356 square feet in size. Off-street parking requirements, owner-occupancy requirements, and square footage limitations below 1,000 square feet would not be permission.
• Adoption of a 20% density bonus for all residential development when at least 10% of the total units within the project would be provided as affordable.
• Increasing the number of lots dividable under Chapter 58.17 RCW to the maximum permissible for short subdivisions.

Cities with a population between 20,000 and 40,000 would only need to choose one of the above options. Cities with a population of 20,000 or less would not be required to take any action. If a city does not adopt the required number of the above options, the alternative would be to adopt a housing action plan that looks at housing characteristics and needs, and inclusion of specific programs to be implemented during a defined timeframe.

The bill does not end there though. Other provisions include that:

• Cities and counties planning under the GMA generally would not be able to require off-street parking for affordable housing for very low-income and extremely low-income households in addition to housing for seniors and people with disabilities when such housing is located within a quarter-mile of a frequent transit stop.
• Permanent supportive housing must be allowed in cities wherever multifamily housing is allowed.
• Provisions of the subarea plan planned action ordinance under RCW 43.21C.420 would be updated, expanded, and extended.
• Impact fees for accessory dwelling unit and mutlifamily would be somewhat more restrained.

The bill also protects cities and counties implementing the housing options from appeal and judicial review under the State Environmental Policy Act (SEPA), which would streamline the process and assure that development regulations proposed can be entered into local code fully intact. Cities could also take advantage of money to implement housing options that the state would set aside for the bill. But they would have to do so by April 1, 2021 to avail of the incentive.

Status: In the Senate Rules Committee awaiting a pull to the floor for a vote with possible amendments. If passed with recommended amendments, it would need concurrence from the House or conference prior to final passage.

Accessory dwelling unit mandate: awaiting Rules Committee and House floor vote

The bill to require cities to allow accessory dwelling units and reduce barriers to their production (Senate Bill 5812) has gone back and forth. The latest version recommended by the House Committee on Local Government would amend the bill to only require compliance by cities with a population of 10,000 or more and counties with a population of 15,000 or more, leaving out much of the state. The Senate version, however, would require all cities and towns with a population of 10,000 or more and all cities and towns with a population of 2,500 or more and within the boundaries of a public transit service area to comply, in addition to counties with a population of 15,000 or more. In other words, the Senate version would apply to more geographic areas.

By June 1, 2021, the House version would require cities and counties would be able to impose a variety of reasonable conditions for tree protection, setbacks, solar access, architectural design, building height, and owner-occupancy requirements for accessory dwelling units. Jurisdictions could also fully exempt historic areas from allowing accessory dwelling units. By doing so, the jurisdiction would satisfy the requirements of the bill if it the accessory dwelling unit reform results in the increase permitting accessory dwelling units. There is a clause that allows cities and counties that have done such reform around accessory dwelling units since 2012 to be considered compliant.

However, if a city or county fails to comply by the deadline, the jurisdiction would have to take at least four of the following actions:

• On lots 3,200 square feet or less with a single-family housing unit on it, the jurisdiction could allow for an attached accessory dwelling within the footprint of the existing structure for permanent rental housing.
• On lots greater than 3,200 square feet but less than 4,356 square feet with a single-family housing unit on it, the jurisdiction could allow for an attached accessory dwelling unit for permanent rental housing.
• On lots 4,356 square feet or greater with a single-family housing unit on it, the jurisdiction could allow for attached or detached accessory dwelling unit for permanent rental housing.
• Adoption provisions that assure connection fees or capacity charges for accessory dwelling units do not exceed a proportionate share of the cost to hookup to the water and sewer system.
• Ensure that residents of accessory dwelling units do not count against any limit on the number of unrelated persons allowed on a single-family lot.
• Ensure that the gross floor area of accessory dwelling units does not count against the floor area ratio limits that otherwise may apply to single-family housing units.
• Ensure that the maximum gross floor area of accessory dwelling units allowed is not less than 500 square feet and 15% of the total lot size for lots over 5,000 square feet and less than 6,670 square feet.
• Ensure that the minimum gross floor of accessory dwelling units allowed is not less than 200 square feet.
• Allow a waiver or reduction for off-street parking when there is a frequent transit stop within a half-mile of the site.

The House version would also require that a jurisdiction provide public notice to mailed to neighbors and posted on or near the site of proposed accessory dwelling unit. The comment period would need to be at least 30 days, which is far greater than required under SEPA and the Land Use Petition Action for normal development proposals.

Meanwhile, the Senate version of the bill is more prescriptive with a requirement the following actions be taken by counties, cities, and towns by June 1, 2021:

• Allow at least one attached or detached accessory dwelling on lots with a single-family housing unit, except that on lots sized 2,500 square feet or less at least one attached accessory dwelling unit must be allowed and one detached accessory apartment may be allowed;
• Ensure that regulations do not impose a minimum lot size for the siting of accessory dwelling units;
• Ensure that the gross floor area of accessory dwelling units does not count against the floor area ratio limits that otherwise may apply to single-family housing unit
• Ensure that residents of accessory dwelling units are not counted against any limit on the number of unrelated person on a single-family lot;
• Ensure that off-street parking requirements require no more than one additional parking space per lot with at least one accessory dwelling unit, provided that no additional off-street parking requirements may apply to sites within a half-mile of frequent transit service;
• Ensure that siting accessory dwelling units is consistent with water availability;
• Ensure connection fees or capacity charges for accessory dwelling units do not exceed a proportionate share of the cost to hookup to the water and sewer system; and
• For cities with a population of 100,000, accessory dwelling unit regulations could not include a requirement for the lot owner to reside in the principal dwelling unit or an accessory dwelling unit on the lot.

In adopting development standards, jurisdictions are explicitly encouraged not to developing regulations that could discourage construction of accessory dwelling units without substantial findings. Jurisdictions are encouraged to not adopt development standards that:

• Establish a roof height limitation on detached accessory dwelling that is less than 24 feet;
• Establish a wall height limitation on detached accessory dwelling units that is less than 17 feet;
• Establish a maximum gross floor area for accessory dwelling units that is less than 1,000 square feet;
• Establish a minimum gross floor area for accessory dwelling units that is greater than 140 square feet; and
• Establish setback regulations for accessory dwelling units that are more restrictive than regulations for single-family housing units.

However, local jurisdictions could exempt the allowance of accessory dwelling units in recognized historic districts.

There are provisions common amongst both versions of the bill. Language to require sufficient fire apparatus access, exemption from appeal and judicial review under SEPA to adopt ordinances consistent with the bill, restraining impact fees, requirement for the Washington State Building Code Council to update rules, and repeal of existing statute pertaining to accessory dwelling units are the same. Both versions would also allow for preemption or regulation of short-term vacation rentals like Airbnb.

But the approach to the two bill versions is deep and could keep it from passing this year unless legislators can gulf the divide and find consensus.

Status: In the House Rules Committee awaiting a pull to the floor for a vote with possible amendments. If passed with recommended amendments, it would need concurrence from the Senate or conference prior to final passage.

Short subdivision expansion: awaiting House floor vote

The bill to expand the number of lots that may be approved through the short subdivision approval process (Senate Bill 5008) is awaiting a vote in the House. It already passed out the Senate, which support a mandatory increase in the number of lots that could use the short subdivision approval process. The House, however, is poised to vote on a different version recommended by the House Committee on Local Government.

Land division under the short subdivision approval process is typically streamlined, allowing administrative approval instead of requiring public hearings. The number of lots that can be subdivided is a maximum of four unless a county, city, or town chooses to increase this by ordinance. The maximum number of lots allowed by ordinance is nine.

Under the Senate version, cities and counties planning under the GMA would be required to process division of land with nine lots or fewer under the short subdivision approval process outright, regardless if the land division would occur inside or outside Urban Growth Areas. By ordinance, these jurisdictions could increase the number of lots processed under the short subdivision approval process to 24 lots inside Urban Growth Areas.

Meanwhile, the House could wind up adopting the amendments recommended by the House Committee on Local Government that would allow a smaller increase in the number of lots allowed through short subdivision approval process. These changes would also make the increase entirely voluntary, requiring affirmative action by local jurisdictions, and establish additional noticing and public comment requirements. Cities and counties planning under the GMA could adopt an ordinance allowing up to 14 lots to be created through the short subdivision approval process. Jurisdictions allowing the creation of more than four lots through a short subdivision would need to establish additional noticing requirements to the public and nearby neighbors prior to final approval a short plat (the recorded version of a short subdivision creating lots), which could increase processing times.

Status: Awaiting a floor a vote in the House with possible amendments. If passed with recommended amendments, it would need concurrence from the Senate or conference prior to final passage.

Condominium liability reform: conference or concurrence

The condominium liability reform bill (Senate Bill 5334) has passed both houses in a similar form and now finds itself in a situation of conference or concurrence by the Senate. The bill would make adjustments to the Washington Uniform Common Interest Ownership Act with the most substantive change being liability for defects on construction and who can make claims for damages for such defects. Costs associated with stringent liability laws have been cited as a major impediment to developing common ownership units in apartments and townhouses. Insurers are loath to insure such developments for fear of lawsuits, making the long-term financing challenging for developers. The reform bill, however, could bring certainty back to the common ownership housing market and bolster creation of denser housing types.

Status: Awaiting concurrence from the Senate, or possible conference, prior to final passage.