Ending Historic Preservation Abuse in Washington

Pro-Housing Bill of the Week: HB 1576 (Washington)

As YIMBYs make progress in reforming the various policies that block housing—such as exclusionary zoning and frivolous environmental litigation—NIMBYs will increasingly turn to other mechanisms. This already happens in Washington State, where bad faith historic designations are often requested when a development is proposed. HB 1576 aims to prevent this by requiring owner’s consent to landmarking in most circumstances and limiting landmarking to properties that are at least over 40 years old. These bills are a welcome step in the right direction.¹

(Source)

Problem: While it doesn’t build as much as cities like Austin or Raleigh, Seattle builds a lot relative to its West Coast peers.² Thanks to liberalizing state preemption, decent enough local zoning, and an active pro-housing movement, Seattle is more affordable than cities like San Francisco and Los Angeles. The Emerald City would be even more affordable if it didn’t having to perform double duty housing the many thousands of new arrivals who have been priced out of California.

"3.6 roentgen…not great, not terrible." (Source)

This isn’t to say that Seattle and Washington don’t need to keep on reforming. The city’s unfunded “inclusionary” zoning mandates seem to have undermined most of the value of recent transit-oriented upzonings. Its design review process remains a bit of a mess, making development riskier with little discernible aesthetic benefit. As with many other states, Washington needs to make changes to its out-of-date building code and condo defect laws.

They also need to fix historic preservation. When a Washington NIMBY dislikes a proposed development, he can easily nominate the existing structure to be landmarked. In the best of cases, this adds months of delays, as preservation staff and commissioners mull over whether to designate the property.³ These delays can be fatal for small, local builders trying to use HB 1110—Washington’s missing middle bill—or affordable housing projects dependent on diverse funding sources.⁴ In the worst of cases, the property is landmarked and the housing development is dead.

Quaint, to be sure. But a landmark? (Source.)

This is not a hypothetical problem. As Dan Bertolet of Sightline notes in his excellent coverage of the issue, hundreds of housing units have been scuttled or delayed by landmarking battles in recent years. Take the case of Mama’s Mexican Kitchen: When the eponymous “mama” decided to cash out and sell her building to a developer who planned to build 63 homes on the site, a preemptive landmark review unexpectedly resulted in the unremarkable structure being landmarked.⁵ The structure sat empty for eight years before falling into disrepair and being demolished in 2024.

Of course, most people would agree that there are many historic structures that warrant protection. But not every old building is Penn Station. In the case of Washington, a lot of what is being landmarked isn’t even old: In Seattle, a building can be designated as a landmark if it’s at least 25 years old. That means anything built as recently as 1999—the year Creed released their multi-platinum record Human Clay—could be landmarked. It should be clear by now why reform is necessary.⁶

A note on California: As in Washington, NIMBYs in California have increasingly turned to historic preservation abuse as a way of blocking housing. In response to SB 9—the 2021 law legalizing duplexes and lot splits statewide—various cities have adopted dubious historic districts to block projects from using this and other pro-housing state laws.

Environmental lawsuits alleging that unremarkable structures must be studied for their historic value likewise remain a mainstay of NIMBY strategy, in one recent case delaying the opening of an Alameda food bank on the basis that the parking lot being redeveloped was a “historic resource.”

Last year, California YIMBY helped to pass AB 2580, requiring local jurisdictions to report new historic designations to the state as part of their annual housing reports. This year, California YIMBY is helping to pass AB 1061, which would end the exclusion of SB 9 duplex and lot split projects in historic districts, while maintaining protections for historic structures.

Solution: The premise of HB 1576 is simple: landmarking generally shouldn’t be imposed on property owners who aren’t on board, nor should it be imposed on new buildings. Let’s unpack the bills’ two main provisions.

First, HB 1576 would prohibit local jurisdictions from landmarking a property without the owner’s consent. This would prevent the vast majority of cases in which landmarking designation has been misused to block housing. It strikes me as common sense: if the owner isn’t bought into landmarking, why would she maintain the structure? As with Mama’s Mexican Kitchen, unwanted landmarking often leads to the structure being demolished either way. For this reason, three-quarters of Washington cities already require owner consent. Oregon requires owner consent statewide.

I qualify with “generally,” as there are two exceptions in the bill: local jurisdictions can still designate a landmark without consent if the property is (a) in a historic district and/or (b) over 125 years old.⁷ As far as the first carve out, Seattle’s historic districts don’t seem to be quite so extensive or indefensible as in DC or Los Angeles. But what’s to stop NIMBYs from designating more districts, as they have in California? As far as age, the threshold of 125 years is well-calibrated to cover close-in twentieth-century single-family neighborhoods well-suited to HB 1110 style development.⁸

Second, HB 1576 would forbid the landmarking of any structure that is less than 40 years old. Why 40? I’m not sure. In California, the age cutoff at which many of our preservation laws treat properties differently is 50, and even that feels too permissive—are 1970s strip malls and tract homes really in need of protection? There are certainly many NIMBYs who think so, but I suspect most normal people would raise an eyebrow at the idea. My quibbles notwithstanding, this is an improvement over the 25-year threshold many Washington cities currently allow. As a 30-something, I find it hard to believe that buildings younger than me urgently need to be landmarked.

Politics: The bill is being carried by Representative Amy Walen, along with other legislators. It has been championed by Dan Bertolet of the Sightline Institute, a Pacific Northwest think tank focused on building sustainable cities. Washington realtors and builders have spoken in support, as has a representative of the YWCA—presumably because a landmarking headache recently threw a wrench into one of their affordable housing projects.

Despite the bill’s modest ambitions, Washington preservationist groups have come out in opposition. As someone broadly sympathetic to their work, I think this is a major strategic mistake. On the one hand, if preservation can’t be insulated from NIMBY misuse, it will only garner more ill-will from other groups. On the other hand, legislators don’t take kindly to groups that fight small reforms like this tooth-and-nail—especially if they lose, as seems likely to be the case here.

Get Involved: HB 1576 continues to move through the legislature. Consider calling or emailing your legislator and asking them to support the bill—this won’t take you more than a minute. You should likewise call the governor’s office and ask him to sign the bill, once passed. For updates on this and other pro-housing legislation in Washington, subscribe to Homes4WA and read the work of the Sightline Institute. Depending on where you are in the state, you should also get involved with Seattle YIMBY and Livable Kirtland. If you’re involved in another Washington-based YIMBY group, let folks know in the comments.

Coda: With any luck, this will be the start of long-overdue historic preservation reform in Washington and other states. In the past, I have suggested other ideas:

1. Local preservation boards should be required to consider the impact of designation on other planning goals, such as affordability, equity, and sustainability. Preserving an older building nearly always demands tough tradeoffs on these margins—these tradeoffs should be confronted directly.

   

   The dots are landmarks. The blue polygons are historic districts. If Manhattan were subject to such rules in 1925, how many remarkable buildings would never have been built? (Source)

2. Local preservation boards should be subject to a “preservation budget,” with an overall limit on the share of structures and land within a city that can be subject to some sort of preservation. You don’t want to sleepwalk into a situation where like Manhattan, where a quarter of all existing structures are designated—again, often over the protests of owners.

3. Preservation staff should be responsible for nominations, and these should be done at regularly defined intervals, as with most planning functions. The current norm of ad hoc public nominations has opened preservation policies up to abuse by NIMBYs, causing no shortage of headaches for staff.

4. Historic districts should only be instituted where they have secured supermajority approval of affected property owners. These sorts of designations can dramatically limit what you can do with your home or business—they should not be imposed without the entire neighborhood having a say.

1. To speed along the process, the Washington State legislature will occasionally move two broadly identical versions of the same bill through the two chambers. The companion to this bill is SB 5554, sponsored by Senator Jesse Saloman.

2. In a future piece focused on Vancouver, I will elaborate on what I see as the middle-permitting trap certain cities have fallen into: permitting enough housing to where locals can plausibly insist “we’re building a lot,” while not quite permitting enough to really see costs fall at the scale that is needed.

3. The risk of NIMBYs proposing a landmarking designation is so great that, as a matter of course, Seattle property owners often preemptively request landmarking review in order to have the proposal denied and thus rendered ineligible for subsequent landmarking. Occasionally, this goes awry and nonetheless results in landmarking—as in the case of Tom’s Diner in Denver, where a similar dysfunctional landmarking system prevails.

4. Under current law, any HB 1110 missing middle law can effectively be scuttled by a local NIMBY requesting that the existing structure be landmarked. To the extent that the law opened up historically exclusionary areas up to new multifamily housing, it has increased the risk misuse of this mechanism.

5. The Seattle Landmarks Preservation Board seems to have designated the structure as a landmark against the recommendation of a preservation expert.

6. In working on this issue in California, I have been encouraged by how many preservationists agree that reform is necessary. While there are some preservationists who believe everything should be landmarked, and plenty of consultants who will cynically make a landmarking case for any paying customer, many preservationists appreciate that NIMBY misuse of historic preservation mechanisms is a threat to the work they do.

7. Notably, the bill does not prevent nominations without the owner’s consent. I wonder how this will play out? Will NIMBYs still nominate properties undergoing a housing development? Would the property owner still need to participate in these proceedings, or delay demolition work until such proceedings are finished? It’s not entirely clear in the current bill. I could see the mere threat of a nomination spooking smaller, local builders away from projects, undermining the intent of this bill.

8. The threshold had previously been 100 years, before it was amended in the Senate.