23.58C.035

A. General 1. An applicant may request a modification, according to this Section 23.58C.035 , of the amount of payment required according to subsection 23.58C.040.A or the amount of performance required according to subsection 23.58C.050.A. 2. An applicant requesting a modification according to subsection 23.58C.035.B.2 shall have requested any available relief according to Sections 23.48.231 or 23.49.039 , and the Director will evaluate relief according to Sections 23.48.231 or 23.49.039 before evaluating a modification according to subsection 23.58C.035.B.2. An applicant requesting a modification according to subsection 23.58C.035.C shall have requested any available relief according to Sections 23.48.231 or 23.49.039 and any available modification according to subsection 23.58C.035.B, and the Director will evaluate relief according to Sections 23.48.231 or 23.49.039 and a modification according to subsection 23.58C.035.B before evaluating a modification according to subsection 23.58C.035.C. 3. The decision on any modification according to subsection 23.58C.035.B or subsection 23.58C.035.C shall specify a per-square-foot payment amount for the development and/or a percentage of units in each structure that shall meet the requirements of subsection 23.58C.050.C, as applicable, that can be applied to the final plans for the development or, in the case of a modification according to subsection 23.58C.035.C, an absolute payment amount for the development or number of units in each structure that shall meet the requirements according to subsection 23.58C.050.C along with a limitation on the degree of change in the final plans that is permissible without a redetermination of the modification. B. Inability to use certain capacity 1. In a SM-U 75-240, SM-U/R 75-240, or SM-U 95-320 zone, the performance calculation amount according to Table B for 23.58C.050 shall be reduced to six percent and the payment calculation amount according to Table B for 23.58C.040 shall be reduced such that it is equal to the amount that applies in SM-U 85 if the applicant demonstrates that the site does not meet the minimum lot size required for a highrise structure according to subsection 23.48.615.A.2, or that one or more specific requirements of Sections 23.48.635 , 23.48.645 , and 23.48.646 would prevent a highrise development from being able to achieve an average highrise floor area of at least 7,500 square feet for stories subject to the highrise floor area limit according to Section 23.48.645 . For purposes of this subsection 23.58C.035.B.1, the following shall apply: a. Financial feasibility shall not be considered in determining whether a threshold could be achieved. b. Recommendations by a Design Review Board shall not be considered requirements of this Title 23 . 2. In Downtown and SM-SLU zones listed in Table A for 23.58C.035, the payment calculation amount according to Table A for 23.58C.040 and the performance calculation amount according to Table A for 23.58C.050 shall be reduced if all of the conditions of subsections 23.58C.035.B.2.a and 23.58C.035.B.2.b are met. The amount of the reduction shall be as identified in subsections 23.58C.035.B.2.c and 23.58C.035.B.2.d. a. If the development is located in a DOC1 zone, the development has a lot size of at least 16,000 square feet. b. The applicant demonstrates that one or more specific requirements of this Title 23 directly prohibit the development from being able to achieve the maximum size threshold or the secondary size threshold according to Table A for 23.58C.035 for the zone in which the development is located. For purposes of this subsection 23.58C.035.B.2, the following shall apply: 1) Financial feasibility shall not be considered in determining whether a threshold could be achieved. 2) Recommendations by a Design Review Board shall not be considered requirements of this Title 23 . 3) The development shall be considered able to achieve the secondary or maximum size threshold according to Table A for 23.58C.035 if any portion of the development to which this Chapter 23.58C applies containing occupiable space could achieve that size threshold, excluding rooftop features. c. If the project cannot achieve the secondary size threshold for the applicable development standard in Table A for 23.58C.035, the payment calculation amount according to Table A for 23.58C.040 and the performance calculation amount according to Table A for 23.58C.050 shall be reduced by the maximum reduction percentage according to Table A for 23.58C.035. d. If the project can achieve the secondary size threshold, but cannot achieve the maximum size threshold for the applicable development standard in Table A for 23.58C.035, the payment calculation amount according to Table A for 23.58C.040 and the performance calculation amount according to Table A for 23.58C.050 shall be reduced by a percentage equal to the maximum reduction percentage in Table A for 23.58C.035 multiplied by the difference of the maximum size threshold minus the size that could be achieved under requirements of Title 23 and divided by the difference of the maximum size threshold minus the secondary size threshold, provided that the total reduction shall never be more than the maximum reduction percentage. Table A for 23.58C.035 Thresholds for modification due to inability to use certain capacity Zone Development standard Secondary size threshold Maximum size threshold Maximum reduction DH2/75 Height 65 feet 75 feet 25% DMC 75 Height 65 feet 75 feet 25% DMC 85/75-170 Height 150 feet 170 feet 10% DMC 95 Height 85 feet 95 feet 25% DMC 145 Height 125 feet 145 feet 25% DMC 170 Height 160 feet 170 feet 25% DMC 240/290-440 Height 400 feet 1 440 feet 1 10% DMC 340/290-440 Height 400 feet 1 440 feet 1 10% DMR/C 75/75-95 Height 85 feet 95 feet 10% DMR/C 75/75-170 Height 150 feet 170 feet 10% DMR/C 95/75 Height 85 feet 95 feet 25% DMR/C 145/75 Height 125 feet 145 feet 25% DMR/C 280/125 Height 240 feet 280 feet 25% DMR/R 95/65 Height 85 feet 95 feet 25% DMR/R 145/65 Height 125 feet 145 feet 25% DMR/R 280/65 Height 240 feet 280 feet 25% DOC1 U/450-U Average tower floor plate for floors above 160 feet in height 13,800 square feet 14,300 square feet 10% DOC2 500/300-550 Height 500 feet 550 feet 10% DRC 85-170 Height 150 feet 170 feet 25% IDM 85/85-170 Height 150 feet 170 feet 10% IDM 165/85-170 Height 150 feet 170 feet 10% IDR 45/125-270 Height 240 feet 270 feet 10% IDR 170 Height 150 feet 170 feet 25% IDR/C 125/150-270 Height 240 feet 270 feet 10% SM-SLU 85-280 Height 240 feet 2 280 feet 2 10% SM-SLU 100/65-145 Height 125 feet 3 145 feet 3 10% SM-SLU 100/95 Height 85 feet 95 feet 10% SM-SLU 145 Height 125 feet 145 feet 10% SM-SLU 175/85-280 Height 240 feet 4 280 feet 4 10% SM-SLU 240/125-440 Height 400 feet 5 440 feet 5 10% SM-SLU/R 65/95 Height 85 feet 95 feet 25% Footnotes to Table A for 23.58C.035 1 If the development meets the standards of subsection 23.49.039.A, the secondary size threshold shall be 160 feet and the maximum size threshold shall be 170 feet. 2 If the development meets the standards of subsection 23.48.231.B.1, the secondary size threshold shall be 85 feet and the maximum size threshold shall be 95 feet. 3 If the development meets the standards of subsection 23.48.231.D.1, the secondary size threshold shall be 65 feet and the maximum size threshold shall be 75 feet. 4 If the development is located in the South Lake Union Seaport Flight Corridor as shown on Map A for 23.48.225, the secondary size threshold shall be 85 feet and the maximum size threshold shall be 95 feet. If the development is located outside the South Lake Union Seaport Flight Corridor as shown on Map A for 23.48.225 and meets the standards of subsection 23.48.231.B.1, the secondary size threshold shall be 85 feet and the maximum size threshold shall be 95 feet. 5 If the development meets the standards of subsection 23.48.231.C.1, the secondary size threshold shall be 125 feet and the maximum size threshold shall be 135 feet. C. Modification based on severe economic impact 1. The purpose of this subsection 23.58C.035.C is to allow the Director to modify the amount of payment required according to subsection 23.58C.040.A or the amount of performance required according to subsection 23.58C.050.A if the applicant can demonstrate facts supporting a determination of severe economic impact at such a level that a property owner's constitutional rights may be at risk. 2. For purposes of this subsection 23.58C.035.C, the Director is not making a determination of the constitutional rights of a property owner, but instead is reviewing the credibility and strength of facts demonstrating severe economic impact. 3. The Director may, as a special exception according to Chapter 23.76 , waive or reduce the amount of payment required according to subsection 23.58C.040.A or the number of units required to meet the requirements according to subsection 23.58C.050.C if the applicant shows that application of the requirements of this Chapter 23.58C would: a. Create severe economic impact by depriving a property owner of all economically beneficial use of the property; or b. Create severe economic impact, not reaching deprivation of all economically beneficial use, but reaching the level of an undue burden that should not be borne by the property owner. 4. In determining whether there is a severe economic impact reaching the level of an undue burden that should not be borne by the property owner, the Director may weigh the following nonexclusive factors: a. The severity of the economic impact caused by the application of the requirements of this Chapter 23.58C ; b. The degree to which the requirements of this Chapter 23.58C were or could have been anticipated; c. The extent to which alternative uses of the property or configurations of the proposed development would alleviate the need for the requested waiver or reduction; d. The extent to which any economic impact was due to decisions by the applicant and/or property owner; and e. Other factors relevant to whether the burden should be borne by the property owner. 5. The waiver or reduction may be approved only to the extent necessary to grant relief from the severe economic impact. 6. A request to the Director for a modification according to this subsection 23.58C.035.C shall include, at a minimum, all of the following: a. A description of the requested waiver or reduction, including the proposed payment or performance amount; b. Documentation showing that any relief available according to Sections 23.48.231 and 23.49.039 or subsection 23.58C.035.B would not eliminate the need for the requested waiver or reduction; c. The identity of the property owner and the date of the owner's acquisition of the property; d. Documentation showing the use of the property at the time of the request or, if the property is vacant at that time, the use of the property prior to commencement of vacancy; e. Documentation explaining and supporting the claim of economic impact; and f. Documentation showing that a different development configuration that satisfied the requirements of this Chapter 23.58C would not alleviate the need for the requested waiver or reduction. 7. The applicant shall provide any additional information as may be required by the Director to make a determination on the request. The applicant shall have the burden of proving by a preponderance of the evidence that a waiver or reduction authorized according to this subsection 23.58C.035.C is justified. 8. None of the following, standing alone and without consideration of the full range of relevant factors including those according to subsection 23.58C.035.C.4, shall be a sufficient basis for the Director to grant a waiver or reduction authorized according to this subsection 23.58C.035.C: a. The fact of a decrease in property value; b. The fact that a property owner is unable to utilize the full amount of any increase in residential development capacity enacted in connection with implementation of this Chapter 23.58C in the zone in which the property is located; or c. The fact that any such increase in residential development capacity, combined with the requirements of this Chapter 23.58C , did not leave the property owner in a better financial position than would have been the case with no increase in residential development capacity and no application of the requirements of this Chapter 23.58C . 9. In any appeal to the Hearing Examiner, the parties will have an additional opportunity to make a record on the factual issues consistent with due process. (Ord. 127099 , § 49, 2024; Ord. 125371 , § 18, 2017; Ord. 125291 , § 42, 2017; Ord. 125267 , § 32, 2017; Ord. 125108 , § 4, 2016.)