Fighting Seattle’s permitting extortion to build new housing

Jenna Walden and the small construction company she manages, Oom Living, looked forward to easing Seattle’s housing shortage by building new homes on two adjacent lots purchased in 2022. Their plans hit a brick wall, however, when the company sought to subdivide the two lots into three to maximize the housing potential. 

In Washington State, landowners must prove adequate water supply to obtain building permit approval, a requirement Seattle enforces through its water availability certificate (WAC) process. Oom’s original two lots already had water and sewer connections, so the company worked with the City to design a configuration that would situate a third lot between the two original lots to easily connect to the water supply on the same street as one of the other lots. 

Oom was astonished when, after their productive collaboration with other City agencies, Seattle Public Utilities (SPU) abruptly reversed its stance and rejected Oom’s WAC application—a crucial prerequisite for development. The City instead demanded Oom design and install a 173-foot water main along a third street bordering the property in exchange for a building permit. never mind that the water main isn’t needed, or even relevant, to Oom’s development, would cost the company over $350,000, and the pipes would ultimately dead-end. 

SPU cited a regulation that mandates new water mains even when properties’ boundary adjustments don’t need them, but the SPU’s interpretation was dead wrong. In this case, the regulation dismisses such requirements when a parcel abuts an existing water main, which is indisputably the case for Oom’s development. 

Yet, Seattle refuses to issue a WAC unless Oom agrees to extend the City’s water system at its own expense. 

This requirement is nothing more than an exorbitant ransom by the City in exchange for permission to build much-needed homes. It unfairly imposed a costly burden on Oom that had no connection to their project, allowing the City to shirk its own capital improvement responsibilities. 

The Supreme Court previously addressed similar extortionate demands in Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013). These landmark decisions recognized that local governments can require property, fees, or projects like water main extensions to mitigate actual public impacts caused by private projects, but demands that go above and beyond that mitigation standard represent an unconstitutional property taking. 

WAC applicants are especially vulnerable to such coercion because WACs are essential components of the permitting process. Seattle cannot exploit this vulnerability by forcing Oom to extend water mains at its own expense, effectively removing itself from its proper role as middleman. 

The government may not deny a benefit, even a discretionary one, based on a person’s exercise of constitutional rights. Represented at no charge by Pacific Legal Foundation, Jenna and Oom are now fighting back with a state lawsuit challenging Seattle’s unconstitutional permitting condition.  

A win will restore their right to build much-needed housing and further protect the rights of all Americans who want to build a home, business, or other project on their own land.