Lawsuit Challenges Seattle’s Mandatory Housing Affordability Law—A Law That Makes Building Housing Unaffordable
December 15th, 2022 at 12:00 p.m. (noon)
Institute for Justice
One Union Square
Third Floor Conference Room, Suite 318
600 University St
Seattle, WA 98101
- Anita Adams and family
- Suranjan Sen, Attorney, Institute for Justice
- William Maurer, Seattle Office Managing Attorney, Institute for Justice
SEATTLE—Today, a Seattle family partnered with the Institute for Justice, a nonprofit public interest law firm, to file a lawsuit challenging the city’s Mandatory Housing Affordability (MHA) ordinance—a law that makes it too expensive for them to build housing on their own property.
At the center of the case is Anita Adams. She’s a lifelong Seattleite who grew up and raised a family in the city’s Central District. With Seattle’s housing costs remaining stubbornly high, Anita’s two children cannot afford to live near her. That didn’t sit right with her, so she started to dream about building an addition to her property with room for her two kids and father-in-law. But when she started to research the process, she determined that although the city’s zoning-code made her plans permissible, the MHA effectively made it too expensive to build her addition: the law could force her to pay more than $75,000 in fees just to get a building permit. That made Anita’s dream unattainable.
“No one should have to pay tens of thousands of dollars in extra fees to build an addition to house their family,” said Suranjan Sen, an attorney at the Institute for Justice, which represents Anita and her family. “It is a measure of the city’s lack of understanding of basic economics or even common sense, that a law claiming to lower the cost of housing actually makes housing prohibitively expensive.”
The MHA program, which went into effect citywide in April 2019, charges property owners exorbitant fees whenever the owner builds a “new structure” or makes additions or alterations to existing structures that increase the number of “dwelling units.” To avoid paying the fees, the only other option is to lease constructed units at below-market rates for a minimum of 75 years. The law makes no distinctions between longtime homeowners looking to make an addition, like Anita, and major developers building high rise luxury apartments.
To make matters worse, the MHA fees for Anita’s neighborhood—$35 per square foot—are substantially higher than other, more wealthy neighborhoods like Madrona or Queen Anne. The law ultimately makes it prohibitively expensive for small property owners to build housing and reduces the amount of affordable housing.
The city was warned of the economic impact MHA would have on small-scale developers. The city-commissioned report on MHA’s “economic feasibility” acknowledged that MHA’s fees were economically feasible for high-end housing development, but would make developments of affordable housing economically challenging—warning that many projects would “need to attain above-market rents in these areas to be feasible.”
With her plans on hold, Anita’s children have had to move out of Seattle, since they cannot afford the exorbitant cost of housing, and now have to endure lengthy commutes into the city each day.
“My family has lived in this neighborhood for three generations and we want to stay here,” said Anita. “But because of this law, that’s impossible. I’ve owned my home and land for 25 years. I’ve endured decades of city policies trying to push us out, but we’re not leaving. The city should be encouraging residents to develop for themselves—to take care of their friends and family—rather than make development something only developers can afford to do.”
Working with the Institute for Justice, Anita’s lawsuit argues that the MHA law is a violation of her Fifth and Fourteenth Amendment rights. The Supreme Court has held that the fees for land-use permits, like those being sought by Anita, must be proportional to the costs the development will place on the city. Put another way, the city cannot set fees disproportionately high to fund unrelated projects or services—especially when Anita’s development will only have the positive effect of building more housing in the city.
“The constitution prohibits the government from using the fact that someone needs a building permit as the hook to strongarm people into giving the city money or building housing they do not want,” said William Maurer, Managing Attorney of the Seattle Office of the Institute for Justice. “The MHA law is unconstitutional on its face and the courts should strike it down.”