Judge rules Oak Harbor affordable housing project unlawful

— Created February 26, 2020 by Kathy Reed

By Kathy Reed Whidbey Weekly

The Oak Harbor Main Street Association has won its appeal asking for the reversal of an Oak Harbor City Council decision allowing an affordable housing project to be built along Pioneer Way downtown.

In a decision handed down last week in Island County Superior Court, Judge Alan Hancock concluded the city’s approval of a housing project application by the Low Income Housing Institute was not legal.

“After due consideration, the court concludes that the city’s approval of LIHI’s proposed project was contrary to law, and a clearly erroneous application of law to the facts,” Hancock wrote. “Specifically, the court concludes that the project violates the city’s zoning ordinance.”

LIHI’s proposal called for a 51-unit complex to be built along Pioneer Way. The plan for the approximately 40,000 square foot building included 1,000 square feet of retail space. Opponents of the proposed project argued that having just 2.5 percent of the overall project as retail space didn’t meet the definition of a mixed use building as outlined by the city’s municipal code and zoning regulations.

OHMSA filed a Land Use Petition Act (LUPA) appeal, and an attorney for the nonprofit organization argued the city had approved the project site plan and a boundary line adjustment in error.

Ultimately, Judge Hancock agreed, even writing the hearing examiner, Michael Bobbink, was in error when he issued his Findings of Facts and Conclusions of Law in his June 25, 2019 recommendation that the City Council approve the BLA and LIHI’s application.

“Rather than entering his own independent findings and conclusions, the examiner simply adopted the Department Staff Report analysis, which did not set forth findings of fact and conclusions of law, in its entirety,” said Hancock. “Significantly, the examiner did not address the issue of whether the project was consistent with the purpose and intent of the Commercial Business District (CBD) zone in which the project is located, or whether the project complies with the zoning regulations pertaining to the CBD.”

While residential development is allowed in CBD-1 or CBD-2, OHMSA argued that is not the case in the CBD, which includes Pioneer Way.

“In the present case, the city expressly provided that dwelling units may be the primary use of the site in the CBD-1 and CBD-2 zones,” Hancock wrote. “It omitted any mention of dwelling units as a primary use in the CBD. By any reasonable interpretation of the ordinance, the city did not intend that dwelling units could be the primary use in the CBD zone. There is no doubt that dwelling units are the primary use of the project. The 51 dwelling units of the proposed project would occupy 97.5 percent of an approximately 40,000 building. [sic]

“The ordinance clearly provides that dwelling units cannot be the primary use in the CBD, as opposed to the CBD-1 and CBD-2 subdistricts. Yet the primary use of the proposed project is, in fact, dwelling units, and the project is located in the CBD zone. It is therefore unlawful,” Hancock concluded.

Whidbey Weekly reached out to OHMSA for reaction to the ruling but did not receive a response. Robin Amadon, LIHI’s housing development director, said the organization has no comment at this time. Steve Powers, director of Developmental Services for the City of Oak Harbor said the city is determining its next steps.

“The City has no reaction at this time,” he said. “We are in the process of determining what options are available to us.”

In the meantime, the city adopted a moratorium last August pertaining to certain development applications in the CBD.

“The purpose of the moratorium is to provide the staff, Planning Commission, City Council, the Oak Harbor Main Street Association, and the broader community an opportunity to review the CBD zoning, particularly with respect to mixed-use projects,” Powers said.

As to how the judge’s decision could impact future affordable housing projects, Powers said there was no way to address that with any specificity.

“From a general viewpoint, affordable housing projects could potentially occur in any zoning district that allows residential development,” he said. “The ruling for this particular project only applies to the CBD. I cannot speculate as to how others may view this decision.”

The last new construction in Oak Harbor’s CBD occurred in 2005, the last significant expansion project in the CBD was in 2016.