A couple of more cracks appeared in Mandatory Inclusionary Zoning (MIZ) in the last couple weeks. First, Councilmembers are beginning to take the idea of a lawsuit seriously and they haven’t figured out what to do if it is successful. Second, growing pressure from angry neighbors about U District upzones is taking its toll on wavering Councilmembers, and they’re looking for a way out, trying to appease the mob by increasing performance requirements (higher fees, and higher percentages of inclusion). But Council’s own staff are smart enough to warn them that doing that has its downsides. Councilmembers and the Mayor have started closing in on themselves, trying to follow their typical script of appeasing neighbors, but realizing the more they do, the weaker their position is legally.

Let’s take a look at the Council’s worry about what to do if a lawsuit is successful. Now, I’m not a mind reader, but the fact that Councilmember Mike O’Brien and Herbold have both been quoted on the record talking about ‘what if’ scenarios in the case of successful lawsuit means they’re worried. Usually, O’Brien dismisses these things with a hand wave. Here’s Obrien and Herbold in a well reported story by George Howland who asked the question,

What will happen if the builders overturn the affordable-housing law in court? Will developers get to keep the upzones but not have to build any affordable housing in return? Seattle City Councilmember Lisa Herbold, a member if the Planning, Land Use and Zoning Committee (PLUZ), states, “My understanding is that there is nothing in the proposed [U District upzoning]…that will require that if the… affordable-housing obligations are struck down the zoning changes are also repealed.”

Seattle City Councilmember Mike O’Brien, PLUZ’s vice chair, is determined to link all upzones to the affordable-housing requirements. “Those two things should be tied together so if one is removed, the other is removed,” he says.

This thread was picked up by Daniel Person from the Seattle Weekly. Howland and Person are catching up with a dearth of reporting on the real nature of the Grand Bargain and MIZ over the last two years. I pointed out the bind the Council is in:

“We’re not going to challenge the legislative upzone. We’ll challenge the (affordable housing) framework. And when the framework fails…(the city council) could go back and vote to repeal the upzone. But it’s not going to be automatic” and would not invalidate permits issued under the previous rules.

As I’ve said before, some of the smartest brains I know work on Council Central staff, and one I’m always in awe of is Ketil Freeman. If anyone can get the Council out of this straightjacket it’s him. But how? The way the Mayor structured the whole MIZ scheme depends on the framework. It’s in the code now, without numbers, awaiting legislative upzones. And here’s the thing, it’s already completed the State Environmental Policy Act (SEPA) process. It’s not like the Council can go back and do anything significant to the framework without essentially starting over again. And if upzones are passed, its a done deal. Council could simply go back and delete them I suppose, but they can’t take back built out square footage. There’s no way to make a builder knock down some percent of her building. And it’s likely that any win would mean the City would have to give the money back too. 

Thanks to Council Central staff, which is entirely independent of Mayor Murray’s legion of pliant bureaucrats writing the and pushing the tortured upzones and who put together the framework legislation, comes a startling realization embedded in a briefing  document that is part of the discussion of the U District upzones:

Increased development costs resulting from such changes may influence the feasibility of high-rise projects in the U District and may result in increased rents for market rate units. It is difficult to determine the extent this modification would have on future development given the range of factors that contribute to the feasibility of any given development project.

Now we already have one of the Mayor’s staff, Geoff Wendtland on video saying more or less the same thing. But I’m pretty sure that if asked to put it in writing as Council Central Staff did, he’d do what he’s been doing for more than a year now: ignore the request. But hunkering in the cubicle bunker isn’t going to save MIZ. What the above paragraph is referring to is a possible 1 percent increase in the inclusion requirement from, get this, 9 percent to 10 percent! Just 1 little ol’ percent. Does anyone believe that this increase will assuage angry neighbors? Watch the pressure to take that percentage higher and higher, and watch Councilmembers trying to be social justice and neighborhood champions do just that to slake the thirst of the mob. Every time they dial up the exaction, it makes our case incrementally stronger.

Smart folks at City Hall and in the Municipal Tower know that MIZ is a failed policy in the making. And its getting clearer and clearer everyday. There is yet another hearing on the U District upzones and I’m sure we’ll see lots of security and muscle holding crowds at bay and creating snaking lines of people wanting to register their opinion and rage about the upzones. The Council is afraid of the monster it has created. As the old saying goes though, those that try to ride the tiger, usually end up inside.