Often, when the City is challenged in court, they make procedural motions to try and kill the appeal or suit before the merits of the case can be argued. The City made this move when they move to dismiss our appeal of low-rise legislation as the work of “a creature of the internet.” That move failed and so has the City’s motion to dismiss a builder’s law suit challenging a law passed last year requiring projects to go through the onerous design review process based on what the unit count on a adjacent parcel. But in arguing their motion, the City’s lawyer, Roger Wynne betrayed their substantive defense of the abutting lot policy: housing is like pornography and drugs, something harmful that needs to be ‘dispersed’ to reduce its harmful effects.

The City’s main argument argument was about the ripeness or timeliness of the suit. They argued that even though the case challenges the law based on its constitutionality, the as applied nature of the case (a case based on actual facts not just a legal theory) means that ”

The key factual issues will remain awash in speculation until Bendare completes the permitting process. This case cannot be resolved on guesswork.

It’s a typical argument made in these kinds of cases. A party challenging a law can’t just say “I will be hurt by this law sometime in the future,” but they have to actually be harmed by the law. It’s the reason that often, once a law is passed, it takes time for a test case, an actual person caught up in the harmful effects of the law, to emerge. The City’s point is how can we know there is harm when no harm has happened. The problem with that argument is that this is not a damages case; the builder is claiming a dollars and time impact but saying the law will unjustly expose him to prohibitive costs that won’t allow him to get a return on his investment.

But in trying to prove their point, Wynne said something that made me smile. He said that there is nothing onerous about design review at all. What’s the big deal? Lots of projects go through design review. So even if it is granted that the law drags the neighboring lot into the design review process, that process doesn’t really discourage people from building and therefore there will be no damages. Wynne hilariously dismissed the brochure on the City’s Design Review requirements as a five year old pamphlet “issued by some anonymous bureaucrat!” There was something satisfying hearing him say that.

But everyone knows, including the City which found in its own study that design review isn’t working that efficiently, adding time and costs to housing. And a Hearing Examiner ruling quoted City staff saying that design review “would tend to discourage new development.” And along with the brochure issued by the anonymous bureaucrat, the City has a complicated document easy to find on-line laying out all the costs in fees and hourly review time required by design review. It’s all right there. And there is no doubt that requiring a project to go through design review would often mean the project simply wouldn’t happen.

But the surprise was how Wynne signaled part of the theory that the City plans to use to defend against the challenge: dispersion. The theory is that housing is a lot like adult entertainment or marijuana stores; one project being too close or too dense to other housing is a bad thing. Dispersion allows the City to spread those dangerous or potentially offensive things around so they don’t concentrate in one place, making that place, presumably, more dangerous, ugly, or contributing to other social problems. Wynne said the burden of the abutting owner forced to go through design review is just like someone who wants to open up a strip club next to a strip club. Too bad, the other guy got their first.

Wynne said that these dispersion requirements are common and that our City Council has decided that when  there is  a concentration of it’s not a big deal to go through design review. He suggested that builders will say it’s a big deal, but there is no way to tell. He said when it comes to arguing the merits of the case, the law will be easy to defend because its is just like any other dispersion requirement. When there have a concentration of something, even housing, we can treat it differently. The first house or unit is not a concentration but the second one is and therefore can be dispersed by making it difficult to build.

The logic here is twisted. Housing projects won’t be harmed by design review, but design review acts like a dispersion requirement, preventing a concentration of housing by making it onerous to build. What?

But there you have it. The City’s official view of housing is that when it becomes concentrated (what we usually call density)  it’s like adult entertainment or liquor stores or marijuana stores: a potentially dangerous thing that can and should be dispersed. If you’ve ever wondered why dense housing solutions are so hard to achieve in Seattle there it is.