FOLLOWUP: Appeals filed in ‘tree or house?’ at 3038 39th SW

(June WSB photo of Ponderosa Pine at 3038 39th SW)

Two weeks after the city announced it would grant a “special exception” permit for a house to be built on a 3,166-sf lot at 3038 39th SW [map], taking out a Ponderosa Pine acknowledged as an “exceptional tree,” two appeals have just been filed with the city Hearing Examiner. This one is from a neighbor, making the argument that the lot previously used as a “side yard” had not been established as a buildable lot:

(If you can’t see the Scribd embedded version, here’s a direct link to that document on the city website.) And this one is from the Seattle Green Spaces Coalition:

The online file for that one is here.

We first reported in June about the neighborhood’s campaign to save the tree. Since the appeals have just gone into the system, no hearing date is set yet.

SIDE NOTE: While working on this, neighborhood advocates have been talking with Councilmember Lisa Herbold about a larger issue – the city’s requirement of a minimum payment for staff time to work on requests for interpretations, saying the resulting multi-thousand-dollar minimum can be onerous; as discussed briefly in today’s morning session of the Budget Committee, her proposal for a rule to require that requesters are charged only for the time needed:

Accompanying the budget, SDCI has submitted a bill that would adjust fees and charges (see the introduction for more details). This action would amend the bill to reduce the minimum number of hours charged for a code interpretation letter. A code interpretation is a process whereby someone can request a formal decision on the meaning, application, or intent of any development regulation in the Land Use or Environmentally Critical Area code. Examples include questions of how structure height or setback is properly measured, or how a proposed use should be categorized. Failure to request an interpretation can preclude raising the issue on appeal. Today, a request for a code interpretation letter is charged, at minimum, for 10 hours of work; hours worked beyond the minimum are charged the Land Use hourly rate (currently $280/hour; proposed to increase to $315/hour). The average number of hours charged for interpretations is 31.25 hours, however, in the rare case where the number of hours is less than 10, this change would ensure that the requesting party is only charged for time needed to produce the letter.

The proposal is not specific to this case; its fate will be determined when the budget is finalized in November.

40 Replies to "FOLLOWUP: Appeals filed in 'tree or house?' at 3038 39th SW"

  • John October 19, 2016 (1:32 pm)

    Here’s an idea, rather than waste time and money on lawsuits and challenging the city’s obligation to charge for services, the two complainantscould pool their funds along with interested neighbors who have already made offers.  Buy the property at whatever return it would generate for the owner if built out.  If the current owner/developer is just in it for the money as the NIMBYs claim, then simply buy it at its value.  The tree alone is apparently priceless and if everyone posting concern supported it, a happy ending would be possible.

  • CR October 19, 2016 (2:30 pm)

    Seems to me the site would be a great candidate for a tree-house.

    • AMD October 19, 2016 (2:41 pm)

      That’s my kind of UP-zoning!

  • John October 19, 2016 (2:39 pm)

    I vote “TREE”. 

    I have one of these sub-standard lots two homes from me.   The owner received a special variance to build on the lot even though it’s under 5,000 sf.  OMG…..they received all sorts of variance’s.  The whole entire lot is covered with a large ugly 3-story house.  All that was required is to meet setback distances.  They didn’t have to worry about lot coverage requirements.  It’s a huge eyesore.   

    • Sam-c October 19, 2016 (3:08 pm)

      Yes… I know of one of those in West Seattle.  Recently completed construction and I think someone bought the new house too.  

      (I think it should be nominated to be named the ugliest house in West Seattle!)

      • John October 20, 2016 (10:06 am)

        OK Sam-c,

        I call your bluff. 

        Just where is the “one of those’ in West Seattle?

        • sam-c October 20, 2016 (10:24 am)

          My spouse nicknamed it ‘the wall house’ 

          It is setback from the lotline as required, and then the house ‘looks like’ it goes back maybe 15′-20′ from the front and the front is as wide as the lot allows it to be, but it looks like a wall. look at in in person. Look at it on real-estate websites- 4545 21st ave sw.

          • sam-c October 20, 2016 (10:33 am)

            (checked the property info on DCI and King County- front is about 30’wide and the house is 12′ deep on one side, 20′ deep on the N side- part of the  layout is due to ECA conditions)

          • Chemist October 20, 2016 (10:37 am)

            Yikes, beauty is in the eye of the beholder, but wow on the front appearance of that, particularly with the windows that follow a stairwell giving that blue wall a really odd “pierced” window layout.

          • John October 20, 2016 (11:26 am)


            Thanks for responding with this example.  

            Ironically, this house is a prime example of clever infill to reduce destruction of our forests.

            Contrary to the claims, this is a Tiny House on a fairly regular size  lot.  With a footprint of merely 465 square feet on a 4,000 square foot lot, this house has a far greater percentage of green space and trees than any home in West Seattle.  Any tree lover should embrace this home.

            Due to the  size of the lot and unique requirements of the Steep Slope Ordinance, no part of the topographically surveyed ECA Steep Designation or any of the Steep Slope Buffer of 15′ was encroached upon during construction or in the future.  All of the trees and vegetation of the majority of the site,  over 3,500 square feet,  is and will remain by code, untouched green space.

             Contrary to nearly all older homes, this house has planted infiltration catch-basins for the hard surface run-off protecting our sewers and Puget Sound.

            Technically, this is not even a “souless box house”  because it has a pitched roof and is not square like a box.

            People who have big old houses covering far more of their lots may complain, but I find this a thoughtful and responsible addition to our housing shortage.

            We should commend the new owners and dispense with name-calling the house,  welcome them to our community.

    • John October 20, 2016 (9:26 am)

      they received all sorts of variance’s.  The whole entire lot is covered with a large ugly 3-story house.  All that was required is to meet setback distances.  They didn’t have to worry about lot coverage requirements.”

      What a bunch of bull from another John.  

      Everything in his quote above is simply false or non-sensible.  

      It is impossible for the whole lot be covered if set-backs were followed.

      Please list the variances you claim.

      Please show any house where the “whole entire lot is covered”.  

      Please show how they somehow avoided “lot coverage requirements”.

      For accuracy’s sake please address your falsehoods.

      • sam-c October 24, 2016 (2:55 pm)

        Yes I name-called the house (the wall), but didn’t wanted to identify it. However, you asked.  And re: name-calling.  You can call it name-calling, but as far as I know, everyone is entitled to an opinion.  There are always plenty of cases on the WSB where commenters lament the infiltration of “souless box house”. on the WS landscape. However, there are quite a few of these new ‘box’ houses around Seattle that I really like (and would move into but would never be able to afford it).   In the comments about this buildable/ non-buildable lot,  I identified one of the box houses that I don’t like.   Part of the problem with it is that it is stuffed into a small lot, that has restrictions (the ECA) dictating the shape of the house.  Seems if you tear down a tree, it’s easier to site and design the house, but it’s not quite easy to remove an ECA… And yes, nice touch with the “infiltration catch-basins for the hard surface run-off.”  However, that is certainly, most likely an effort to meet the new stormwater code with infiltration BMPs, rather than a developer being altruistic about the environment.    I will welcome the new neighbors to the community (and keep my opinions about the house design quiet I guess? sounds like censorship, but ok)

    • Anonymous Coward October 20, 2016 (11:02 am)

      If it’s the same one Sam’s talking about the coverage is 360 sq ft on a 4000 sq ft lot.  What do you think the maximum coverage is for a 4000 sq ft lot?

    • Perfect size October 20, 2016 (1:49 pm)

      For the record, I’m pro-tree – but this lot size issue has brought up repeatedly and the way some people are talking about lot size borders on offensive.  I live in a house on what you call a “substandard” lot, 3900 sq ft. We have a nice sized house with both a front and back yard as well as off street parking for 2 cars. There are MANY perfectly fine houses on lots this size in West Seattle.  Keep the tree, lose the superior attitude!

  • anonyme October 19, 2016 (2:59 pm)

    Another vote for the tree.  The tree protections that we have are feeble enough without allowing exceptions in most cases.  Does this city understand the concept of rules and laws at all?  It seems that any developer with a few bucks in hand can get whatever they want.

  • Mark schletty October 19, 2016 (3:28 pm)

    Developer wants, developer gets. We need a new mayor and new councilmembers who will fire a lot of city staff and replace them with people who care about Seattle and protecting what is left of the environment that makes Seattle special in the first place. Our city is being buried under monstrosities to satisfy developer greed.

  • JayDee October 19, 2016 (5:23 pm)

    I hate to sound Republican, but will the City recompense the landowner who originally purchased this property thinking that the regulations or variances would be possible? Ugly isn’t defined in the land use code as we have many ugly houses in the ‘hoods.  It is an unfunded mandate if the City has to pay the property owner for the impact to the value of their property.

    • mcbride October 19, 2016 (6:10 pm)

      I sure hope so. When I bought my house, I intended to convert it into a mixed use uranium refinement facility. I just need the City to approve a couple code variances, and then I can realize the full profit potential of my investment.

      It’s called the Housing Market because you buy on speculation. Usually that means you hope to negotiate a good price and realize profit through appreciation over time and reinvestment. If you bought a property knowing full well that code variances are a necessary part of your plan, then you’ve entered into it knowing full well there’s risk involved. Nobody owes you anything.

      At issue here isn’t whether you plan to build a crowded soulless box into a neighborhood where it doesn’t fit the character. It’s about a really big tree which happens to be protected by code, and whether code should be altered in order to build that crowded soulless box. The only unfunded mandate is selling out the citizens that code is meant to protect.

      • Soul-Less Box October 19, 2016 (9:11 pm)

        “Doesn’t fit the character” is a NIMBYism used conveniently when it suits the argument. I’d say that my neighbor’s choice of lawn ornaments doesn’t fit the character of my block but you know what, it’s their yard! Should every house built look like yours? And soul-less box is certainly an opinion you’re entitled to but only an opinion that grants you zero rights as it pertains to someone else’s property. And if these houses are so ugly (don’t judge them unless you’re willing to be judged on peeling paint, plastic lawn chairs), why are people buying them like hot cakes? This talk of greed is ridiculous- developers are trying to feed their families just as you are yours. Nobody calls your job “greed”. 

        Regarding the SGSC petition: one house will cause parking problems and traffic? Gimme a break.  One of your members can’t enjoy the view and birds anymore? Injurious only to those who have a sense of entitlement. 

    • Anonymous Coward October 20, 2016 (11:04 am)

      I thought the takeaway would be to cut down your trees *before* they get too big…

  • Save Our Silent Giant October 19, 2016 (11:06 pm)

    Just a few facts worth considering…  The developer paid $505,000 in November 2015 for a 6,200sf lot with a house.  Cliff Low is a savvy developer and has been involved in past law suits with the City so he knew the risks and the code well before he purchased.  He stands to gain a mere $400,000+ in profit.  He will not pay any impact fees to help with the development’s impact on bridge traffic, aging strained infrastructure, crowded schools, etc.  On the other hand, we are voting in November on Sound Transit’s proposal – ~$800/year to address traffic increased in part by all of the development in our community.  That is after we have recently passed Seattle’s transportation package and WSDOT and METRO funding packages will probably be next.

    • WSB October 20, 2016 (12:13 am)

      For accuracy’s sake: Court records do not show Cliff Low having been “involved in past lawsuits with the city.” I checked the court record and found one case in which he was involved – not a lawsuit, but an appeal of a city Hearing Examiner decision, which went to KC Superior Court because that’s what happens if an HE decision is appealed – which is also mentioned briefly in the Seattle Green Spaces Coalition appeal document in this case. That does not negate your suggestion that “he knew the risks” but accuracy is important in comments as well as stories.

    • John October 20, 2016 (10:03 am)

      Save Our Silent Giant writes, “He stands to gain a mere $400,000+ in profit.  He will not pay any impact fees to help with the development’s impact on bridge traffic, aging strained infrastructure, crowded schools, etc. “

      Aside from his totally unsubstantiated claim of $400,000+ profit, Giant’s claim about impact fees is patently false.  He is obviously ignorant of all of the fees new development now faces.  

      Just hooking into the sewer now costs $6,000 for ‘capacity’ charges which are indeed impact fees.

  • Rb October 20, 2016 (12:05 am)

    John is my hero. We all think of the pretty tree with someone else pocket on the line. I would like to see what you would do if it caused you a financial burden. 

    • WSB October 20, 2016 (12:22 am)

      If you read the documents in the case (both filings), which I’ve just finished doing, the contention is that there is no financial burden to Cliff Low because, they contend, he paid a market price for a lot with a house, not a market price for a house plus a bonus buildable lot.

  • wsea98116 October 20, 2016 (1:17 pm)

    So what? Everyone hopes to make a profit on their real estate!? That is the primary objective for many. To say that a woman living a block away is specifically and substantially damaged by losing the air this tree produces, or the enjoyment of seeing it- is absurd. I can’t imagine her living in an urban setting if her grasp is so tenuous.

    What this is really about is people who have nothing better to do, stirring the sh#t.

    All those houses you love, built over the last 100 years, took the place of far nicer and bigger trees with more birds and children displaced, and that was ok, but now you got yours, and that’s enough, right?

    Who here offers up their side yard as a play space for the neighborhood? It would more likely become a camping spot for crackheads.

  • What it's all about October 20, 2016 (5:26 pm)

    As someone who has been involved with this case,  it is really about two things:

    1.  Fairness.  The City’s job is to administer Land Use regulations fairly , impartially, and consistently.  In this case, the appellants think the City did not follow the rules in issuing the permit.  The  Seattle Municipal Code allows citizens to appeal a permit decision to the Hearing Examiner for an $85 fee.  The City claims the appellants must pay an additional $2800 fee (minimum) for a code interpretation before submitting the appeal.  Again, the appellants do not think this additional fee is supported in the Seattle Municipal Code, City Council’s intent when updating the Code in 2014, and possibly, state and federal constitutional law.  This $2800 fee is an important precedent for all  of us – whether you agree with this permit or not.  It’s about the cost to make your argument and have your day in court.   

    2.  The Future of Seattle Neighborhoods.  The long term issue is what do we want our neighborhoods to look like 20 years into the future – after the boom economy ends?  The economy will eventually slow down,  it always does.  Some of us want neighborhoods with large, older trees and properties of various sizes, not a shanty town of packed houses.  We want shade, habitat, and less stormwater runoff.  We also don’t understand how technology, such as computer controlled cars and video networking, are going to change the way people work and commute.  Computers and cell phones have dramatically changed how we live in the past two decades.  One thing we do know, after the trees are gone, it’s more expensive to bring them back, if possible at all.   We can’t and don’t want to save all the trees, but we should be very cautious and reluctant about removing the exceptional ones.

    We probably won’t all agree on the second point.  However, we should all agree on the first point.

    • John October 20, 2016 (8:56 pm)

      What is it all about?

      1. Fairness.  

      Every appellant to the system of course feels their case is special and worthy of consideration.  

      That is a given.  

      But if everyone who feels they have a case makes the city do work on it without compensation, it would lead to high costs and abuse.  

      Mr Low also was required to pay the city for the time it spent on his project, why shouldn’t others who are challenging his rights also pay?

      Besides as a group of homeowners who claimed to have offered to buy the property, a $2,800 fee for legal determination is cheap.

      2. The Future of Seattle Neighborhoods

      Everyone wants “ neighborhoods with large, older trees and properties of various sizes, not a shanty town of packed houses.  We want shade, habitat, and less stormwater runoff. ”  

      The issue is how to achieve or maintain those goals.  What is missing from this discussion is civic responsibility.  The fact that these people are suing over a tree that is not even theirs is indicative of how few of them have trees of their own.  And if they did, they certainly would not be making such claims on others.  Fact is that the new construction will be kinder to our environment than the older homes of those protesting.

      • WSB October 20, 2016 (10:05 pm)

        Again, let’s be careful with the terminology. They are not “suing” over a tree. They’ve filed appeals and the city Hearing Examiner (who is not a judge) will decide them. That’s the last stop in the city process; if either party disagrees with the examiner’s decision, they can go to Superior Court (as mentioned upthread, that’s what happened in another land-use case in which the owner of this site was involved), but that’s still not a “lawsuit.” – TR

        • John October 21, 2016 (8:38 am)

          WSB is correct and so am I.

          The homeowners are not yet suing by filing a legal lawsuit over the tree.

          However, the owners are indeed suing over a tree, as defined by dictionary:

          synonyms: appeal for, petition for, ask for, solicit (for), requestseek

          “they are suing for peace”
  • Brontosaurus October 20, 2016 (8:16 pm)

    You know what would be perfect for this site? A “Spite House”, like this one:

  • Jw October 20, 2016 (11:52 pm)

    It feels as if John has not read the attaché documents. They are extremely well written and present a compelling argument angainst what the city is doing. I would imagine the author is trying to expose what the city is doing  and how it is breaking the law. The city stands to profit in multiple ways from new development and has little incentive to stop it. Apparently to the point of monetarily discouraging people from challenging that. Like this tree or not, the implications of this challenge are far greater and force the city to acknowledge what it is doing. 

  • wsea98116 October 21, 2016 (2:02 am)
    Thanks for the clarification regarding the appeal fee. 
    With regards to whether this house meets criteria for historic lot exception, it absolutely DOES qualify, and the appellant clearly does not understand the merits which make it so, and frequently transposes the terms lot, unit, and parcel- to meet their needs. 
    The appellant claims the historic lot exception was created to allow development on an undersized lot. This is NOT correct. The historic lot exception was created to allow a property owner to maintain his rights to develop the not previously developed lot, under the rules in effect at the time the lot was created. 
    It does not matter what happened (to the lot) IN 1957, it matters what happened PRIOR to 1957- because in 1957 the minimum SFR lot size increased from 2500 sf to 5000 sf. All lots that remained undeveloped at that time, were grandfathered to be developed in the future, under the previous rules- IF subject lot was not used in the setback of building on adjacent property. (Generally, 5′ or more between house and lot line.)
    A parcel could be made up of one or more lots. You could buy ten – 2500 sf lots as a single parcel, build a house across the the first two lots, and there would still be eight build-able lots remaining. If the home’s side set-back encroached upon lot three, that lot would now be considered developed, and no longer a separate lot. However, you would still have seven more build-able lots, even though all 10 lots are in one tax parcel. 
    The lot in question WAS platted as a SFR 2500 sf lot before 1957, when the subdivision was originally created in 1908 (or thereabouts) and would remain so until otherwise developed. The appellant’s assertion that owner failed to establish the lot as a separate building lot because he wanted to put a garden or shed or heliport there is hypothetical and ridiculous!  In 1930, There was no need for an owner to file a permit to show his intent to maintain the lot separately, because at that time- it WAS an established, legal sized building lot. It had been established as such when it was platted in 1908, and would remain so, through subsequent transactions and future owners, until developed.  This exception has been applied countless times since 1957, and is just- as no one in 1908 (or 1930), could have possibly foreseen the change in code in 1957.
    Perhaps the woman a block away could purchase herself a portable oxygen generator, and afford this new property owner the same rights she and everyone else in west Seattle has enjoyed..
  • wsea98116 October 21, 2016 (4:42 am)

    Also- read the code regarding exceptional trees

    The exceptional tree must be retained on undeveloped lots, only when building footprint can be adjusted around them, while still achieving maximum lot coverage potential.  Not possible in this scenario, so tree goes. 

    This builder Is following the rules , interpreted as intended, and deserves to be vilified no more than any other builder that has  ever legally built a house in west Seattle. 

    And JW, if you really believe the city is willfully approving permits unlawfully to generate development income, you and Gladys Kravitz should form a club and file your own appeals!

  • Karen October 21, 2016 (11:41 am)

    Boy, I would hate to have a home next to one of these ugly boxes. There goes your property value! Who wants to buy a home that faces a gray wall?! Worse, yet, big windows looking over your lot and home.

    • John October 21, 2016 (2:18 pm)


      There is no accounting for taste and these “ugly boxes” are in as high a demand as the faux craftsman of ten years ago.  

      Go figure, but putting one of these next to your old West Seattle box will increase its value.  

      Perhaps it is because “ugly box” houses always have the desirable “open floor plan” everyone wants as well as incredible natural light from all of those big windows and they are more efficient in energy use and construction materials over the life of the house.

      Wherever these new houses go in, they refresh the tired old housing supply while improving property values of the neighbors. 

  • Jw October 21, 2016 (8:56 pm)
    • Wsea98116

    “willfully approving permits unlawfully to generate development income.”… I never meant to imply will. It could be a misinterpretation on the city’s part. Either way, read the document and stay awesome.

  • What it's all about October 23, 2016 (1:42 pm)

    Quick note and more later…

    This “lot B” on which the tree is located and on which the new owner want to build a new house was in fact has never been platted as a lot.  It is the created by combining portions of two platted lots.

    The Historic Lot Exception (HLE)  is a bit more complicated than explained above.  The key point is that to qualify as a HLE, the “buildable site” must have been established before 1957.   To be established the site has to meet one of three standards:  deeds, platting, or permitting.  The City’s preliminary Legal Building Site Letter indicates it does not meet any of these three standards (letter is attached to the first appeal).  The City then goes on to speculate as to the intent of the owner in 1930 based on a permit for the house.  They assume the lack of a permit indicates the establishment of a buildable site.

    We disagree and just want to make our argument to the Hearing Examiner.

    It is a bit more complicated than this but this is the general idea.  If you want to know more, read the appeals.

  • What it's all about October 23, 2016 (5:31 pm)

    Sorry about my poor grammar on the earlier comment!  Yikes!  That’s what I get for commenting on the run!

    The other point I want to make is about the  cost:

    Before submitting a building permit, the applicant paid $1000 for the Legal Building Site Opinion Letter (4 hours of staff time at $250/hr) which contains the Historic Lot Exception (HLE) review.  Without the HLE, the property is not a “buildable site” and no house allowed.  The City then issued the MUP permit which contained the HLE decision. 

    The City is now requiring the appellants to pay $2800 minimum (10 hours of staff time at $280/hr) for a Code Interpretation of the HLE.  The same staff who did the earlier HLE work review the same information for the Code Interpretation.  Plus the appellants pay the $85 Hearing Examiner fee twice – once for the appeal of the permit and again for the appeal of the Code Interpretation.  

    One of our concerns is why should the City be paid to do the HLE review three times?  And why should the appellant be required to pay for the 3rd time?  If the City does the HLE review before the permit and again during permit review, shouldn’t it be done well enough that the City’s is willing to defend it to the Hearing Examiner?  Seems crazy that if the HLE decision is good enough to issue a permit to build a house that it isn’t good enough withstand a Hearing Examiner review. 

    (BTW – Love the spite house!)



  • Putz October 26, 2016 (12:29 pm)

     I don’t get the super biased spin.  

    “..tiny house of 1470sf, barely larger than an accessory building… Uncomfortably squeezed in between adjacent homes with barely enough room for emergency services…. They would have never contemplated a home like this in 1930..”

    last I heard, avg home size in Seattle is 1460sf- that would make this house of customary size.  

    Sideyard setback must be 5′ from lot line- 10′ from neighbor structure. That is more common than not in this dense neighborhood. This size of home and smaller would have been, and was, widely contemplated and common in 1930, as min lot size was only 2500 sf. 

    All of this area was built under these parameters. I don’t understand your necessity to stick a wrench in the gears,  when you have no skin in the game..? You’re not even a neighbor to this!

Sorry, comment time is over.