Decision on Oak Harbor housing project is appealed

— Created July 15, 2020 by Kathy Reed

By Kathy Reed

The battle to build affordable housing in downtown Oak Harbor is not over.

Pioneer Way Housing, LLLP has taken its fight to Division I of the State Court of Appeals in Seattle, filing an appeal asking the court to reverse an Island County Superior Court ruling won by the Oak Harbor Main Street Association, which struck down the Oak Harbor City Council’s approval of an application to build an affordable housing complex on Pioneer Way.

It is the latest volley in the ongoing effort to bring a new affordable housing project by the Low Income Housing Institute (LIHI) of Seattle to Whidbey Island.

“Three levels of City review determined that the project will both comply with all applicable Code requirements and affirmatively further the City’s policy goals of enhancing the downtown environment and providing much-needed affordable housing,” reads the brief filed June 29. “[Oak Harbor Main Street Association’s] claims fail to demonstrate reversible error in any of these determinations. LIHI respectfully asks the Court to reject all of OHMSA’s claims and affirm the City’s decision approving the Project.”

LIHI first submitted its site plan review application and a boundary line adjustment application to build a 50-unit affordable housing apartment complex in October, 2018. The OHMSA objected to the application from the beginning, claiming the project did not meet the city’s municipal code requirements. A hearing examiner held a public hearing in June, 2019, later recommending the application be approved. The Oak Harbor City Council ultimately voted to approve the application and BLA Aug. 20, 2019. Construction was slated to begin on the project before the end of the year.

The OHMSA filed a Land Use Petition Act in Island County Superior Court challenging the City Council’s decision, arguing the project did not meet code because it was not a true “mixed use” building, but was primarily residential and therefore not allowed in the Central Business District. A Superior Court decision on Feb. 18, 2020 sided with OHMSA and reversed the City’s approval of the project. A motion by LIHI for reconsideration of the decision was also denied.

The appeal filed by LIHI with the State Appeals Court asks the court to review the land use decision, claiming OHMSA failed to meet its burden of proof.

“OHMSA asserts that the project is prohibited because it is not a ‘mixed use’ project; because it contains a ‘primary use’ of residential units; and because it improperly locates dwelling units on its ground floor,” reads the appeal. “These assertions are incorrect and OHMSA’s claim fails.”

In the appeal, LIHI claims the project does indeed meet the definition of a mixed use development (1,100 square feet of the building has been set aside for retail business, the rest of the building is residential), because city code does not assign a minimum percentage rate of any particular use. The appeal also argues the project cannot be defined as “primarily” residential due to the code’s language surrounding the terms “primary” and “accessory” use, and argues the project’s dwelling units are properly located to meet the city’s code. LIHI also argues the city correctly approved the boundary line adjustment and that the city council’s decision did not result in a “de facto” rezoning of the of the project site, as OHMSA claimed, and that the city complied with all procedural requirements in making its decision.

“OHMSA cannot establish…that the City failed to follow a prescribed process or that its review suffered from any procedural defect,” the appeal states.

Robin Amadon, development director for LIHI, said she is disappointed the project has been delayed, but is optimistic the nonprofit organization will eventually be able to proceed.

“It is very disappointing, but the legal system is available to adjudicate differences and the Oak Harbor Main Street Association chose to object to the project,” she told Whidbey Weekly via email. “They took a perfectly legal method to do so. LIHI now is respecting the legal process as well in filing our appeal of the Superior Court decision to the State Court of Appeals.”

The appeals process is expected to take approximately eight months.

“We hope our appeal is successful and believe we have filed a brief making our case,” said Amadon. “Why do we hope our appeal is successful? Because we believe our development will be of benefit to Oak Harbor and we have worked hard and in good faith.”

Whidbey Weekly reached out to the Oak Harbor Main Street Association and the City of Oak Harbor for their reaction to the appeal, but received no response from either.