With all the attention going to the two major density bills—middle housing and transit-oriented density—you may have missed our last update that the two prescriptive accessory dwelling unit (ADU) bills continue to clear each obstacle in the legislative process. Conceivably, they have two hurdles to go before passing the Legislature: floor vote and then agreement, or not, from their house of origin on amendments. Unless something very strange happens, the Legislature will soon choose which bill passes the finish line.

Neither bill was sent to a fiscal committee, and each was referred to Rules to await being pulled to the chamber floor. Here's where they each stand coming out of their respective policy committee:

SB 5235 mandates that by the time of their next comprehensive plan update, cities:

• Must allow:
  • One attached and one detached ADU on all residentially zoned lots larger than 4,500 square feet. If the lot already allows two units, then only one ADU is required. If the lot already allows three units, it does not have to further densify.
  • One attached or detached ADU on all residential lots smaller than 4,500 square feet, unless that lot already allows two units.
• May not:
  • Prohibit the construction of ADUs on residentially zoned lots within the urban growth area.
  • Require any owner occupancy requirements unless:
    • the ADU is used as a short-term rental, or
    • the city already provides a waiver or reduction of impact fees and costs associated with ADUs if they are offered at or below 80% of the area median income.
  • Require off-street parking requirements for any ADU within ¼ mile of a major transit stop (rail, bus rapid transit, regular bus operating at least every 15 minutes for five peak hours). Cities are authorized to make specific findings to allow for on-site parking.
  • Prohibit the sale of a condominium unit solely because the unit was originally built as an ADU, so long as it is independently connected to utilities.
  • Apply development regulations that are more restrictive than those for detached single-family construction.

The bill does reserve some areas for continued regulation by cities, including:

• Generally applicable development regulations.
• Public health, safety, building code, and environmental permitting requirements.
• Prohibition on ADUs that are not connected to public sewers.
• Prohibition on restriction of ADUs in zones with a density of one unit per acre or less that are within areas designated as wetlands, fish and wildlife habitat, floodplains, or geologically hazardous areas.

Additional elements include:

• Cities are authorized to waive or defer fees, impact fees, tax payments or specific regulations, but only if the ADU is subject to binding covenants that the ADU will not be regularly used as a short-term rental.
• Restricts future private covenants from limiting or restricting ADUs and attempts to indemnify cities from civil liability for approving an ADU that runs counter to a covenant entered after the passage of this proposal which contains unenforceable provisions.

HB 1337 applies to all GMA planning cities and those cities would have until six months after their next comprehensive plan update to comply with the changes. The bill received amendments in the Senate policy committee changing the bill from a “choose your choice of mandates” from a short list to a longer, required list of mandates. Here are the requirements:

Cities must allow:

• Two ADUs per single-family lot, attached or detached or a combination.
• An ADU in a structure detached from the primary unit (i.e., a detached garage).
• An ADU on any lot that meets the primary lot size for the primary unit.
• An ADU to abut an alley lot line, unless the city plows snow on the alley.
• Condo-izing ADUs
• Conversions form existing units

Cities may not:

• Assess impact fees of more than 50% of what would have been imposed on the primary unit.
• Require owner occupancy.
• Require public street improvements
• Establish:
  • Maximum floor area ratio less than 1,000 square feet
  • Roof height limit of less than 24 feet or less than the primary unit
  • Setback requirements, yard coverage limits, tree retention mandates, entry door location restriction, aesthetic requirements or design review that is more restrictive than the primary unit.

The bill does allow the same list of continued regulation by cities and the additional elements as detailed under SB 5235. However, HB 1337 provides broader, and is consistent with existing, authority on regulation of ADUs as short-term rentals. On the bright side, HB 1337 provides a helpful SEPA and GMA appeals safe harbor.