Shane Harms/Ballard News-Tribune
Remnants of the single family soon to be replaced by a row house less than 15 inches from Whitney Holody’s home.

Contention over row house setbacks mounts on N.W. 60th Street

Ballard resident, Whitney Holody, never thought 14 inches would separate her from a her future neighbor’s home, but with construction of a new row house beginning next door the reality of not being to reach an entire side of her house looms.

Holody has lived with her husband in an end unit of a row house on N.W. 60th street since 2015. Seattle Department of Construction and Inspections (SDCI) has approved a plan to allow a three-unit row house next door to Holody. According to the plans, on the east side of the lot there will be a 3.5–foot setback. The Seattle municipal building code stipulates that amount when neighboring a town home. However, on the west side, Holody’s side, the structure will have a six -inch setback. The footing of Holody’s home is built directly on the property line, however the rising structure is set back eight inches. The two structures will have a combined space between them amounting to 14 inches.

“That’s not enough room for anything. No one will be able to fit between the homes. … How will we be able to do any maintenance?” said Holody.

So why so close to the property line?

The code SMC 23.45.518, which was written in 2015, states "0' where abutting another row house, otherwise 3.5 feet, except that on side lot lines that abut a single-family zone, the setback is five feet. In other words, when two row houses abut there needs to be no setback and so developers can build right up to the property line.

For Holody, the contention comes from whether the new row house structure should abut the existing structure or just the lot itself.

“If you build row homes you want them to be connected, and if you can’t connect them then you should reasonably set distance between them so you can reach the sides of each home.”

Row houses are typically supposed to abut or connect with no gaps. However, in this case, there was some ambiguity in the code wording. Does the code apply when the two structures abut or just the lots? The city addressed this issue by agreeing to interpret the code with “row house lot,” meaning that there would need to be no setback when a row house lot abuts another row house lot.

“The setback was meant to apply to the ‘development,’ not the actual structure on the ‘development.’ The code writers meant for it to refer to the lot a building is on, not the actual building,” wrote Wendy Shark with the SDCI.

“The existing setback requirements were approved by City Council in 2015 and are a prescriptive standard within the code…meaning there is no discretion by SDCI in their application,” said Bryan Stevens, media handler for SDCI. “For a row house, the setback requirement is 0-feet to 3.5-feet, depending on whether the property abuts another site with either a row house or some other housing type. The intent of this land use code provision was to allow row houses on neighboring lots to touch (as seen in many cities across the country), but to have setbacks requirements from other housing types.”

Holody has a different perspective on the matter.

"While the city says it has no discretion in the application of the code, it has no problem interpreting the code for the row house to abut the 'development' and not the structure itself as the actual written code language suggests. So which is it? Does the city have discretion to alter the code meaning or does the city not have discretion? It seems to me they are talking out of both sides of their mouth, saying they can't do anything while simultaneously doing something. The code itself says nothing about abutting a row house development," said Holody.

Despite clarifying the code, the problem with a 14-inch gap between two homes remains, which Holody believes appears to defeat the City’s stated intent to allow row houses on neighboring lots to touch.

MRN Homes, owned by Michael Nelson, is the developer of the row house project. Permits for the project were issued last December, but Holody has been fighting to change the plans for the last eight months. Fellow Ballardite, Linda Melvin, joined her in pleading with the City to step in and make changes to the project. They wrote letters to Nelson, the SDCI and even met for personal tours of the site with Council members Lorena Gonzalez, Tim Burgess and Mike O’Brien between May and October 2016. O'Brien is chair of the Planning, Land Use and Sustainability Committee. O’Brien’s office did not respond to inquiries pertaining to this article.

“There was plenty of time for the SDCI to assess this issue and request a change in the developer's plans,” wrote Melvin.

Holody and Melvin eventually had a personal meeting with SDCI Director Nathan Torgelson and staff in early January, but at that point the permit for the plans had already been issued. According to email correspondence, Torgelson agreed to reach out to Nelson to see if he would provide a larger setback by moving the plans closer to the east. A town home is being constructed on the neighboring property to the east and the code stipulates that a town home has a five-foot setback from the property line. Combined with the 3.5-foot setback the new row house is required to have on the east side, there is 8.5 feet of space total.

“That will create a very large setback on that side with six inches on my side. This seems completely illogical to me,” Holody wrote to the city.

Torgelson stated in email correspondence that he called and texted Nelson with no response.

MRN Homes was asked about Torgelson reaching out to them.

“I am not aware of him having any intention of offering a variance,” wrote, Greg Westbrook, General Manager of MRN Homes.

Westbrook did not respond specifically to the question of whether MRN considered moving the plans over but stated that the code requires 3.5 feet and there is no room to move the plans.

“All Mr. Nelson has to do is move his plans one foot east to give the property owner a bit of air--and perhaps restore a bit of good will,” wrote Melvin. “And the City? All they have to do is stick up, for once, for a neighbor instead of the developer.”

However, Stevens reported that MRN would still need to abide to code requirements on the other side of the property and that it’s not as simple as sliding the plans, but rather a change in design.

“To be clear, the Director has never suggested a variance from existing rules. After meeting with the row house owner, the Director offered to reach out to the builder of the proposed row house on the abutting property and see if he’d be willing or able to increase the setback between the two properties. This is a big ask considering it’s not required by code and would reduce the size of his future development. Any change by the builder would be voluntary, as the currently permitted proposal meets the setback requirements of the land use code. Efforts to communicate with the builder have been unsuccessful,” wrote Stevens.

But Holody sees it differently; She contends that SDCI is applying the code in some places and not others.

“They are applying the code and forcing the 3.5 feet on the eastern side but are ‘relaxing’ the code on my side so he (MRN Homes) can build at six inches instead of back at 3.5 feet as the code itself suggests. Since it's impossible for them to abut me -- as I'm eight inches back from the property line -- the property should have been forced to setback 3.5 feet, but he's getting to build at six inches. This is where the crux of the issue is because I see the city doing what they are supposed to on one side but not on my side,” wrote Holody.

“So what I've asked the city to do is say, ok let's look at the quirkiness of this individual lot. The fact that I sit eight inches off. The fact that the neighboring lot is 4,275 square feet, which means it doesn't meet density for three townhomes. Let's look at how logical it is that there's 8.5 feet on that other side and say let's slide the structure over a bit to that side since they don't ‘need’ the setback like we do on this side and let's get just enough space to maintain: a director's decision, but apparently they can't even do that.”

Incidentally, row houses are not required to go through a design review, and so desperate to halt the plans, Holody tried to appeal the plans at the Hearing Examiner’s Office. They responded with a letter that explained the hearing examiner couldn’t appeal the plans because it is a Type 1 Decision and only the director of the SDCI has authority on a project of that type.

Stevens further explained details about the decision.

“While the land use code regulates things such as density and building form, it is not intended to regulate every design choice. The designer/developer of the existing row house could have chosen to build up to the property line or setback further to allow for more practical maintenance space. Instead, they opted for this design concept, which has resulted in an unusual result for both parties. Since the code is prescriptive, there is no other recourse for changing the outcome for the existing row house development.”

Incidentally, this is not the first problem with setbacks associated with the Holody’s property.

Back in 2014 when Holody’s home was constructed, the Ballard News-Tribune published a story about a similar issue the neighbors to the east experienced. The neighbors lived in a single-family home, but the street is in a multifamily zone (LR1), and the code stated at the time that row houses did not need setbacks when abutting a single-family home when it’s in a multi-family zone. Leroy and Laurette Simmons and Laurette’s 97-year-old mother lived next door to the site. They had bought the lot six years before and built a new three-story home.

Row 2
Leroy and Laurette Simmons in 2014 before a row house was constructed within 18 inches of their home.

“A row house development can be placed up to the side property line unless the development proposal is adjacent to a single family zoned property. The ‘zero lot line’ development anticipates the possibility of a future row house on an adjacent site. This is generally a new housing type in Seattle, but one that we encourage and something commonly seen in other major cities,” said wrote Stevens back in 2014.

The code was later changed to not allow building row houses up to the property line when neighboring single-family homes. But the structure was built, and the Simmons moved. Now new owners, Rachel Nagorsky and Gary Owen live there with their son, Ronen. They can touch the neighboring building while inside their home, but they said they were aware of the close quarters when they bought the house.

Row 5
Rachel Nagorsky and Gary Owen with son, Ronen.

As to the future of row house setbacks, Stevens said that the SDCI is looking at ways to avoid this type of circumstances, but as for now, the 14-inch gap will remain because the permits have already been issued.

“The 14-inch situation is unusual, but we are looking at whether we need to propose a change to address this in the future. …This circumstance has highlighted an issue which we are evaluating to determine if changes should be made to the setback requirements approved in 2015,” wrote Stevens.

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