Ruling expected soon on Oak Harbor housing project
— Created February 12, 2020 by Kathy Reed
By Kathy Reed Whidbey Weekly
Island County Superior Court Judge Alan Hancock is expected to issue his decision in the next week regarding the Oak Harbor Main Street Association’s legal challenge to the City of Oak Harbor’s decision to approve an affordable housing project in the heart of the city’s central business district (CBD).
Attorneys made their arguments before the court last Thursday. OHMSA is appealing the city council’s approval of a boundary line adjustment and subsequent application by the Low Income Housing Institute to build a 51-unit affordable housing complex on Pioneer Way, claiming the project simply doesn’t meet city zoning codes and doesn’t satisfy mixed use zoning standards for the CBD.
“This is a residential project; it’s even called the Pioneer Way Housing Project,” said OHMSA attorney Margaret Archer. “But for the BLA (boundary line adjustment), it doesn’t meet code. Without that BLA, there would be residential [units] on the main level, right on Pioneer Way.”
Archer argued the proposed project doesn’t contain enough retail space, with only 1,000 square feet designated for that purpose.
“This project, as a whole, is 97.5 percent residential,” she said. “That alone -that this building’s primary use is residential – is basis enough for the court to reject this decision.”
The OHMSA attorney also argued a hearing examiner didn’t address the issue adequately in his decision, which recommended the city council accept the BLA and the city staff’s recommendation to approve LIHI’s application.
“This project doesn’t meet the code, outright,” argued Archer. “This is manipulation of the code. If you’re going to change uses, you have to go through proper zoning changes.”
However, attorneys for both the City of Oak Harbor and for LIHI argued the city’s code does not set minimum standards for mixed use buildings in the central business district.
“There is nothing in the code which requires a particular percentage,” said Richard Hill, attorney for LIHI. “City staff highlighted three areas of concern in the initial proposal. LIHI responded to those concerns, staff recommended the application be approved. The city council discussed and debated thoroughly and honestly and made the decision to approve. LIHI respectfully asks the court to affirm the decision.”
While Archer argued the court needed to examine the definition of primary versus accessory use of the property, the city’s attorney said that didn’t apply to this project.
“There is no limitation set in mixed used,” said Anna Thompson. “There is no need to focus on primary use, because this is a mixed use building. Mixed use doesn’t care about percentages.
“We applied our developmental regulations and found this project in compliance with zoning standards in the Oak Harbor Municipal Code,” Thompson continued. “It met the definition of a mixed use project.”
In reference to the boundary line adjustment, Thompson said the city is obligated to process those requests, regardless of the project.
“The applicant met the criteria and the code and we ask the court to deny the petitioner’s request,” she said.
Judge Hancock took the case under advisement. A written decision on the matter could come any time in the next week.