Changing Your Zoning Code to Accommodate Housing and Shelters for the Homeless

Homelessness and affordable housing are two major and difficult issues facing communities throughout the State of Washington. To help address these complicated issues, E2SHB 1220 was recently signed into law and is meant to encourage cities (both code and non-code cities, but not counties) to take active steps to accommodate transitional housing, emergency shelters, and similar homelessness-related facilities through local planning and changes to local development regulations. This signed bill contains new requirements related to:

1. Housing element updates;
2. Adoption of moratoria or interim zoning controls; and
3. Zoning and development regulations regarding indoor shelters and housing for the homeless or those at risk of becoming homeless (with very tight deadlines, if local zoning revisions are needed).

Proposed standards related to accessory dwelling unit (ADU) standards within E2SHB 1220 were vetoed by Governor Jay Inslee.

This blog will focus primarily on the third bulleted item, which is related to increasing local accommodation of:

• Indoor emergency shelters,
• Indoor emergency housing,
• Transitional housing, and
• Permanent supportive housing.

Some cities have quickly reviewed their zoning codes and determined that they already meet the new requirements, so you may find yourself in that same situation.

Summary of the New Requirements

RCW 35.21.689, which was adopted in 2019, states that “a city may not prohibit permanent supportive housing in areas where multifamily housing is permitted." E2SHB 1220 now adds “transitional housing” to this prohibition and extends the geographic scope as follows:

A city shall not prohibit transitional housing or permanent supportive housing in any zones in which residential dwelling units or hotels are allowed.

E2SHB 1220 also includes the following provisions:

• Effective September 30, 2021, a city shall not prohibit indoor emergency shelters and indoor emergency housing in any zones in which hotels are allowed, except in such cities that have adopted an ordinance authorizing indoor emergency shelters and indoor emergency housing in a majority of zones within a one-mile proximity to transit.

• Reasonable occupancy, spacing, and intensity of use requirements may be imposed by ordinance on permanent supportive housing, transitional housing, indoor emergency housing, and indoor emergency shelters to protect public health and safety.

The effective date of the first new requirement is July 25, 2021 (in other words, the effective date of the bill), while E2SHB 1220 specifically calls out September 30, 2021, as the effective date for the second requirement listed above. The “reasonable requirements” listed in the third bullet could presumably be applied to any local code revisions made to comply with the new state law.

There are many aspects of the new law that have raised some questions from local government officials who are trying to understand and incorporate the new requirements into local zoning and development codes.

General Guidance and Some Options to Consider

I recently emailed a short survey about E2SHB 1220 to a number of Washington State Planning and Community Development Directors/Managers, and they identified the questions/issues described in this section of the blog.

A. Definitions

Most zoning codes already have definitions for land uses like homeless shelters and transitional housing. It is important that you actively review how the four listed land uses are defined in your development regulations, however, and make sure your definitions are consistent with those in state law.

E2SHB 1220 contains definitions for “emergency shelters” and “emergency housing” (see Section 6 of the bill). Although it was created for a tax exemption provision, RCW 84.36.043(2)(c) provides a definition of “transitional housing:”

"Transitional housing" means a project that provides housing and supportive services to homeless persons or families for up to two years and that has as its purpose facilitating the movement of homeless persons and families into independent living.

Last but not least, RCW 36.70A.030 defines permanent supportive housing (PSH) as:

...subsidized, leased housing with no limit on length of stay, paired with on-site or off-site voluntary services designed to support a person living with a disability to be a successful tenant in a housing arrangement, improve the resident's health status, and connect residents of the housing with community-based health care, treatment, and employment services.

Generally speaking, PSH is meant to be a permanent form of housing for households facing homelessness, while the others are meant to provide a transition between homelessness and a permanent housing option.

B. Standards related to occupancy, spacing, and intensity of use

E2SHB 1220 states that “(r)easonable occupancy, spacing, and intensity of use requirements may be imposed by ordinance…to protect public health and safety” on the four types of housing/shelter, but what would qualify as being a “reasonable” requirement under those three categories? There is no definitive answer to that question, but here are some ideas for you to consider when thinking about adopting your own local requirements:

• “Occupancy” often refers to a maximum number of occupants in a structure or facility, at least in a zoning context. For a related but different type of land use, a Community Residential Facility (CRF), the City of Burien Zoning Code differentiates between a smaller CRF-I, with 9-10 residents and staff, and a larger CRF-II , with 11 or more residents and staff. According that city’s development regulations, a CRF I is allowed in many zones (including many residential zones), while a CRF II is limited to more intensive, commercial zones. In addition, occupancy standards may sometimes also address the type of person staying at a specialized facility.
• “Intensity of Use” may sometimes be related to “occupancy” (see above) but can also address impacts like building size and height, traffic levels, and noise. In addition, intensity of use standards may tackle “barrier to entry” conditions imposed by a proposed facility (for example, whether or not an indoor emergency shelter allows pets or has a sobriety requirement). Some communities, like the City of Bellingham, require an operations plan to deal with mitigation of potential impacts — see Bellingham Municipal Code Subsection 20.15A.020(Q) and other related subsections.
• “Spacing” is usually applied within a zoning code to limit how close one designated use may be to another use of the same type. For example, the City of Kent requires a minimum separation of 1,000 feet between emergency housing or emergency facility sites (see footnote 31 of Kent Municipal Code Subsection 15.04.020).

It is important to remember that these optional standards are not to be used to prevent the siting of a sufficient number necessary to meet your community’s need for the four housing/shelter types.

C. Two options for zoning related to indoor emergency shelters and indoor emergency housing

If your local zoning code does not list hotels as a permitted or conditional use, it would seem that HB 1220 would not require your community to zone for indoor emergency shelters and indoor emergency housing.

For all other municipalities that allow hotels in one or more zones, the new state requirements provide the two options of allowing indoor emergency shelters and indoor emergency housing in either: (1) all zones where hotels are allowed; or (2) a majority of zones within one-mile of transit.

If your community does not want to use the first, relatively straightforward approach, then the second option would likely involve most or all of the following steps:

• Mapping all of the transit stops/routes (“transit” is not defined in E2SHB 1220 but could reasonably be viewed as including public bus transit, light rail, and commuter rail);
• Applying a one-mile radius to all of the mapped areas;
• Identifying all of the zones that fall with the mapped radii;
• Numerically determining what would constitute a “majority” of the mapped zones;
• Specifically selecting the zoning categories for which indoor emergency shelters and indoor emergency housing would (again, it would need to be within a majority of the mapped zones) and would not be allowed; and
• Revising your zoning code.

This second approach would involve a fair amount of effort, although it could be more easily accomplished by utilizing geographic information systems (GIS) mapping.

Timing and Schedule

As mentioned earlier, major deadlines associated with E2SHB 1220 are July 25, 2021, and September 30, 2021. These deadlines will require a very quick turnaround from local governments, especially when you factor in the time needed for preparation of new code language, planning commission review, the required 60-day review by the Washington State Department of Commerce (Commerce), public hearing(s), and final review and adoption by the local legislative body.

Please note that a local government cannot adopt a moratorium or interim zoning controls to avoid or delay compliance with the requirements of E2SHB 1220 (see Section 5 of the new law amending RCW 36.70A.390 regarding use of interim controls and moratoria). However, it appears that you could adopt interim standards for initial passage of zoning/development regulations that comply with the requirements of the new law. Accordingly, adoption of interim standards may be one method to consider when attempting to meet some very tight deadlines. In fact, the Maple Valley City Council adopted interim standards on June 28, 2021 (see the Maple Valley City Council Special Meeting packet, starting on page 113).

Regarding review by Commerce, it is recommended that you reach out to your assigned regional planner and start the 60-day clock as soon as you can, even if you don’t have all of the details finalized yet. If you are considering asking Commerce for an expedited review of your proposed development code changes, you should reach out to your assigned planner first to make sure that option is even possible.

Conclusion

Finding ways to accommodate the necessary number of indoor emergency shelters, indoor emergency housing, transitional housing, and permanent supportive housing is an important endeavor, but may be a difficult one for your community. E2SHB 1220 establishes clear expectations for local governments and provides them some flexibility in determining how to accomplish this in a manner that is both compatible with local needs and achievable within a very short timeframe.