Victory for residents: Court rules that City and DPD Permitting Practice is illegal. But are only the wealthiest are protected by the rule of law?

On Wednesday of this week, King County Superior Court Judge Laura Middaugh delivered what can be fairly characterized as a major rebuke to DPD over the issue of the “microhousing loophole”. The loophole in question has allowed developers to construct very large microhousing projects in residential neighborhoods without going through either the full public Design Review or SEPA Review normally required for projects of that scale.

The plaintiffs in this case were neighbors living in proximity to the proposed microhousing development at 741 Harvard Ave. The developer (with DPD’s blessing) was claiming that the 49 individually leased units in the proposed building were in fact only 8 dwelling units for purposes of design review (while simultaneously claiming that there were 49 units for tax purposes).

While the language of Judge Middaugh’s ruling (attached) is a model of professional restraint, it seems clear that she was not amused by DPD’s double-talk and verbal sleight-of-hand on the issue of what constitutes a “dwelling unit” (the entire argument hinges on this definition). She finds, among other things, that “the application of the regulations to the specific facts in this case is clearly erroneous”; that DPD’s own documents often contradict each other; that the proposed development “is properly characterized as a 49 unit apartment building rather than an eight unit building”; that “the decision of DPD is reversed”, and that “this project requires Design Review and must meet development standards based on a unit count of 49.”

Judge Middaugh’s ruling is as clear as it is strongly worded. Given that, the relevant question for many of us is the following: why would a public agency like DPD torture the English language to the extent that it has in order to allow well-heeled developers evade the clear requirements of the law?

The other troubling implication is this: justice was served in this case because – and only because – the plaintiffs had sufficient resources to hire competent counsel and have their argument heard in a proper court of law. What about the rest of us who don’t have those kinds of resources at our disposal?

KC Superior Court:microhousing

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