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Originally published Sunday, December 23, 2012 at 9:02 PM

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Green Lake neighbors sue over backyard house in undersized lot

Some Green Lake neighbors have filed a lawsuit against the city of Seattle for allowing a new three-story house in the backyard of an existing bungalow.

Seattle Times staff reporter

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Some Green Lake neighbors have filed a lawsuit against the city of Seattle for allowing a new three-story house in the backyard of an existing bungalow.

The suit, filed in U.S. District Court, says the Department of Planning and Development violated the neighbors' due-process rights under the U.S. Constitution by allowing a developer to create an undersized lot based on historic tax records that don't appear on city zoning maps.

No public notice was given of a boundary-line adjustment needed to make the historic tax lot buildable, the lawsuit argues. Neighbors also weren't informed that a building permit was being sought for the backyard house, on just more than 1,000 square feet in a single-family residential neighborhood where the minimum lot size is generally 5,000 square feet.

"Notice took the form of a bulldozer," said Rita Latsinova, an attorney at the Seattle firm Stoel Rives, who lives in the neighborhood between Wallingford and Green Lake where the house was built. She is representing the plaintiffs in the case pro bono.

"Notice is not a technicality," she said. "In this case, it protects people's investment in the most expensive thing most of them will ever buy."

In response to the community outcry over the development of big houses on small lots in several neighborhoods, the City Council in September imposed a moratorium on the use of historic tax parcels to create new building lots.

The Department of Planning and Development (DPD) is expected to make recommendations in January to the mayor and council for revisions to the building code governing undersized lots.

Developers objected to the moratorium, saying they had almost no notice it would be adopted. They said many seniors with properties that have historic lot lines are counting on the income that could come from subdividing their property.

Peter Krause, who lives two houses away from what he calls the "alley skyscraper," notes that the historic tax parcel was an unbuildable, narrow triangle with no street frontage and just 28 feet along the alley.

"The city made a big mistake on this project," Krause said. "They allowed the developer to turn an unbuildable lot into a buildable one. They are not willing to admit they made a mistake and they aren't willing to remedy it. We felt we were forced to sue."

The lawsuit, brought by "Neighbors for Notice," seeks compensatory damages and costs including attorney fees.

"In a perfect world, we would love for the city to buy the skyscraper and take it down," Latsinova said.

The City Attorney's Office wouldn't comment because litigation is pending.

But on the Planning Department's website, it says that after reviewing the provisions that regulate undersized lots and minimum lot area exceptions, "DPD determined that development approved under current standards is often out of character with the surrounding neighborhood and inconsistent with policy."

The code revisions, the department said, "will help promote new construction that fits in with our neighborhoods."

Krause said that since the moratorium was adopted, he and residents of other neighborhoods dealing with backyard and side-yard houses have discussed with the Planning Department proposed revisions to the city land-use code.

But he said the department has "really sent mixed messages" about whether public notice will be required under the new rules.

"We want to make sure that notification is required in the future," Krause said.

Latsinova said the suit was filed in federal court because federal law protects due-process rights. But she acknowledged that state law requires legal challenges within 20 days of a land-use action.

Neighbors couldn't challenge the backyard house within that time, she said, because no public notice was given.

The lawsuit argues that city approval of the backyard house caused neighbors to lose "the benefit of the single-family residential zoning, a meaningful access to state-law remedies and the diminution of their property values."

The lawsuit also quotes from city correspondence with the developer, saying that the historic tax parcel has a "very limited" footprint, but that it may be possible to create a "more functional footprint" by adjusting the boundaries.

"The city had a long dialogue with the developer," Latsinova said. The reason the second lot was created was that the city allowed it to be created."

Lynn Thompson: 206-464-8305 or lthompson@seattletimes.com. On Twitter @lthompsontimes.

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