Fate of housing project in judge’s hands

The future of a proposed 51-unit, low-income housing development in downtown Oak Harbor is in the hands of Island County Superior Court Judge Alan Hancock.

Hancock heard arguments Thursday afternoon from attorneys representing the city, Oak Harbor Main Street Association and the Low Income Housing Institute over whether the city council made a lawful decision in approving the project last year.

The judge said he hoped to have a written decision in the next couple of weeks.

The project drew criticism from the merchants of the Main Street Association and some members of the public because it places a project that’s 97.5 percent residential in the city’s central business district, which critics felt should be largely limited to retail and commercial uses.

Attorney Margaret Archer, representing the Main Street Association in its land-use appeal, asked Hancock to revoke the permits for the project or, in the alternative, send it back the council for reconsideration.

Archer focused on the importance of considering the development regulations as a whole, arguing that the city’s contention that the rules are unambiguous doesn’t ring true.

“If you stand back, this case is far from crystal clear,” she said.

Anna Thompson, the city attorney, said the petitioner could not prove any procedural errors and had not reached the burden of proof necessary to overturn or change the council’s decision. She asked Hancock to dismiss the petition with prejudice.

One of Archer’s arguments that seemed to gain traction with Hancock was her contention that dwelling units cannot be a primary use in the central business district, or CBD, zone. She pointed out that regulations for subdistricts CBD-1 and CBD-2 specifically say that dwelling units can be a primary use, but it doesn’t say that for the CBD zone as a whole.

Since the project isn’t in a subdistrict — and is on property fronting Pioneer Way — then a housing project isn’t allowed, she said.

Hancock discussed the issue in terms of a rule of statutory interpretation, suggesting that there’s meaning in the fact dwelling units aren’t listed as a primary use under CBD.

Thompson, however, said Archer was misinterpreting the definition of a “primary use” and that a mixed use is allowed in the CBD zone, which doesn’t set any rules about the proportion of retail space necessary.

Archer argued that a boundary line adjustment was an improper manipulation of the code with the sole purpose of subverting rules requiring retail space on Pioneer Way.

Thompson said the city was obligated to consider the boundary line adjustment independent from the project and that it objectively met the criteria in the code.

Archer also said it was “absolutely clear” that council members had discussed the issue of liability prior to holding the quasi-judicial hearing at which they approved the project in a 4-3 vote. She said council members wrongly concluded that they had no authority to reject the hearing examiner’s recommendation to approve the project or adopt their own findings of fact and conclusions of law. She said the council seemed confused as to why they were making the decision.

In addition, she said the council members wrongly felt they could be personally liable in making a decision in the quasi-judicial hearing.

Hancock emphasized that this should not have been a concern.

“There is no basis for anyone to be concerned about personal liability,” he said.

Thompson and Richard Hill, the attorney representing the Low Income Housing Institute, said the council did a thorough job of considering the issues and made a responsible decision. Thompson said any conversations the council had prior to the meeting were protected by attorney-client privilege and there’s no evidence that anything improper was said.

In the end, Hancock asked Archer for a written transcript of the hearings and said he hoped to have a written decision in a couple of weeks, but that his schedule is very full.

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