Last week I saw the latest movie version of Shakespeare’s play Macbeth, maybe my favorite of his plays. It was just OK, and if you really want the best film version watch Roman Polanski’s version (don’t forget Kurosawa’s brilliant adaptation). The play, like all things Shakespeare is about many things, but the plot centers on the tragic consequences of political ambition and overreach. In the play there’s a famous moment when Lady Macbeth says, “out damned spot!” When I heard this I couldn’t help but be reminded of Councilmember Mike O’Brien’s recent efforts on the Seattle Channel and Facebook to rewrite the Grand Bargain to do what I called spot zoning, a selective rezone of various parcels rather than the “zone-wide” rezones in the Bargain. What is spot zoning and will it work in Seattle?

First of all, as one article puts it, spot zoning is “one of the most frequently advanced, yet generally misunderstood concepts of zoning and planning law.” I’ll admit, I used the term the way I’ve often heard NIMBYs use it, as a blanket term referring to a rezone that would be illegal because it picks and chooses parcels rather than whole sections of the city.

My own experience as Council staff and generally has taught me that the Seattle City Council won’t pick a parcel and rezone it by legislation. If they do, two things have to happen, there has to be public benefit and the rezone has to be broadly construed; the language in the legislation has to apply to general categories of parcels not an address.

One other option is a contract rezone, a rezone that applies to one parcel but that is conditioned on public benefit, and upon the Council acting in a quasi-judicial fashion. The Appearance of Fairness Doctrine—the Municipal Research and Service Center (MRSC) has a great summary—means that when land use changes that affect a specific parcel should “involve fact-finding and the application of general policy to a discrete situation.” When acting in their quasi-judicial role, the Council can’t be lobbied about the rezone; they must act as impartially as possible. The MRSC summary points out that, “the doctrine attempts to make sure that all parties to an argument receive equal treatment.”

Since generally speaking an upzone changes the value of a property, it has been seen by the courts and policy makers as something prone to abuse. The worst example of spot zoning is the classic one of a campaign contributor giving lots of money to a candidate in exchange for upzoing his property. But conferring value to a property doesn’t have to be so brazen. The point has been to avoid subjective rezones that favor some owners over others and that don’t support broader land use policy.

Legally what does a spot zone look like? How do the courts and lawyers advising the Council and policy makers determine what is spot zoning? Here, again from the MRSC summary:

The reasons for invalidating a rezone as an illegal spot zone usually include one or more of the following: (1) the rezone primarily serves a private interest, (2) the rezone is inconsistent with a comprehensive plan or the surrounding territory, or (3) the rezone constitutes arbitrary and capricious action. Each situation must be determined on its own facts and it is not always easy to determine conclusively whether a rezone would constitute an illegal spot zone.

So is what Councilmember O’Brien is proposing, “3 floors here, 2 floors there, and none over there” spot zoning? The answer is going to depend on whether the City Council decides to act on upzones for the Grand Bargain in one of the ways they can legally upzone, through “zone-wide” upzones that are legislative or contract rezones which are parcel specific and require quasi-judicial review. Either way, the changes have to match the Comprehensive Plan, including that plans land use map, which must be amended with every zoning change to align with plan. Anything else looks like spot zoning to me.

I’ve seen the strained efforts to craft legislation to hit the target of one parcel using legislation. It sometimes doesn’t work. Remember Strippergate? Probably not, but it was an effort to change parking requirements for one parcel in Lake City through legislation. It failed (I go through a more extended discussion of all this at the old Seattle’s Land Use Code blog) and cost some Councilmember’s their jobs. The Council, once scotch’d by scandal, usually learns its lesson. Here’s what Councilmember Steinbrueck said the time when the legislation was repealed:

I believe our precious covenant of trust with the public has been broken. We will take this vote today to rescind the Lake City rezone legislation and wipe the slate clean

It’s painful to imagine legislation to create some extra floors and height over here and over there and none over there, especially when engaging neighbors all over town who don’t want any upzones, period. Contract rezones? Practically speaking, with thousands of parcels in the city, this would turn the Council into a full time quasi-judicial review board and reviews of contract rezones; just one of them, can take years. And, by the way, the entire Comprehensive Plan is up for revision; how do Grand Bargain rezones line up with that process? Will some of that have to be done over?

Lady Macbeth in her fevered sleep walk asks, “What need we fear who knows it, when none can call our power to account?” Councilmember O’Brien’s efforts to please neighbors with endless process and upzones “over here but not over there,” smacks of politics pure and simple, something that the Appearance of Fairness Doctrine simply won’t allow. The alternative is time consuming process, process, and more process. Either way, it’s hard to see how Councilmember O’Brien and his colleagues can sneak by block-by-block upzones even if they claim the beneficiary is the public because of the housing the Grand Bargain is intended to create. Upzoning here and there, legally, and within the next year, is a problem that is “beyond my practice.” I’m not sure anyone can figure it out.