The Downtown Emergency Service Center (DESC) is asking to intervene as a defendant in a lawsuit against the city of Burien that aims to stop the Seattle-based nonprofit’s permanent supportive housing project planned for downtown Burien.
The DESC filed a motion to intervene in the case Tuesday (Jan. 18, 2022). A hearing on the motion, with no oral argument, is set for Jan. 31 in King County Superior Court.
“Plaintiffs seek to prevent DESC’s development of 95 units of housing affordable to very poor people living with disabilities from proceeding as the Burien City Council has permitted,” the motion reads. “If there was ever a case where intervention was appropriate, it is this case.”
The lawsuit’s lead plaintiff is Burien resident and former city council candidate John White, followed by Tortas Locas restaurant owner Jose Luis Rangel Olivera, Burien Towing owner Lynette Storer and commercial property owner David Burke. Burke’s property and Olivera and Storer’s businesses are all located within 1,000 feet of the housing project’s planned site at 801 SW 150th Street in downtown Burien.
In its response to the lawsuit, filed as an attachment to its motion to intervene, the DESC asks that the lawsuit be dismissed with prejudice, arguing that the plaintiffs “fail to state a claim upon which relief can be granted” and allege “no actual injury” that would “give them standing to raise their claims.”
The DESC also argues that the plaintiffs had an opportunity to appeal the city’s Dec. 16 decision approving the project’s design but failed to do so. However, appeals were limited to parties of record, which, according to the city’s Dec. 16 decision, included only Megan Espinoza of SMR Architects and Julie Nordgren of the DESC.
The DESC asserts that no appeals were filed during the city’s 14-day appeal period; the city declined to confirm whether it had received any appeals.
Arguing that the DESC’s permanent supportive housing project “will not provide affordable housing,” the plaintiffs are seeking an order prohibiting the city from including the project in the city’s Affordable Housing Demonstration Program, which provides flexibility in certain development regulations in exchange for affordable housing.
In its response, the DESC admits that because permanent supportive housing and affordable housing are distinctly separate concepts, “‘affordable’ housing may or may not be supportive, and ‘supportive’ housing is almost always but may not necessarily be ‘affordable.’”
In a separate declaration written Jan. 12 and filed Tuesday, DESC Executive Director Daniel Malone argues that supportive housing and affordable housing are not mutually exclusive.
“The Complaint alleges that because DESC’s project will be ‘supportive’ housing, it cannot be ‘affordable’ housing,” Malone wrote in his declaration. “Quite simply, it is both supportive and affordable.”
Malone argues that the project conforms with the Affordable Housing Demonstration Program’s definition of affordable as well as the definition of affordable housing under state law, specifically RCW 36.70A.030.
“DESC’s client (sic) typically have incomes from 0 to 15% of the AMI,” or area median income, Malone wrote in his declaration. “The tenants will sign leases and will pay rent. That rent will be not more than 30% of their individual incomes.”
The B-Town Blog asked Jeff Spring, director of the Office of Supportive Housing at the state Department of Commerce, for his reaction to the lawsuit. He said the claim that the DESC project does not qualify for the Affordable Housing Demonstration Program because it is a supportive housing project is without merit.
“Permanent supportive housing [PSH] is targeted towards those with disabling conditions who are unlikely to ever be in a position to afford market-rate housing,” Spring wrote in an email to The B-Town Blog. “Considering that PSH tenants pay a tiny fraction of what would otherwise be regarded as market-rate rent, it’s arguable that PSH is among the most affordable of affordable housing types.”
The plaintiffs also argue that the DESC project is “ineligible for accommodations and exceptions” that have been granted by the city based on the project’s inclusion in the city’s Affordable Housing Demonstration Program.
“If Plaintiffs were to prevail in this action, DESC would need to redesign the project, resulting in delay in its completion,” Malone wrote in his declaration, “and the project would be more expensive and would not function as well for DESC.”
Malone also wrote in his declaration that the DESC planned to apply for a building permit on Jan. 12 and would begin construction as soon as permits are issued in an effort to complete the project and begin accepting tenants in 2023. The city declined to confirm whether DESC had yet applied for or been issued any permits.
“Given the nature of our housing crisis and the limitations on resources that are available,” Malone wrote, “any delay in completing this project means that 95 individuals will remain unhoused who would otherwise be housed.”
EDITOR’S NOTE: This story has been updated to specify the parties of record who were eligible to appeal the city of Burien’s Dec. 16 administrative design review decision for DESC’s permanent supportive housing project.
Nicholas Johnson (he/him) is an award-winning writer, editor and photographer who grew up in Boulevard Park, graduated from Highline High School and studied journalism at Western Washington University. Send news tips, story ideas and positive vibes to [email protected].