Judge rules against downtown Oak Harbor housing project

A proposed housing development for low-income people does not conform to Oak Harbor zoning code for the downtown area and is, therefore, not lawful, Island County Superior Court Judge Alan Hancock ruled this week.

Hancock’s decision in Oak Harbor Main Street Association’s Land Use Petition Act appeal likely spells the end of the Low Income Housing Institute’s proposed housing project which became a lightning rod that divided the city council and led to an ongoing development moratorium downtown.

In his 10-page decision, Hancock was critical of the city’s longtime Hearing Examiner Michael Bobbink for ignoring a central issue and complimentary of Councilwoman Erica Wasinger, whose analysis of the city codes was “correct on all counts.”

Hancock found that the city council’s 4-3 approval of the project was a “clearly erroneous application of the law to the facts.” The city’s zoning ordinance does not allow a project that is primarily residential in the “central business district,” he wrote.

Merchants in the Main Street Association and others were concerned about the dearth of retail space in such a large building within the downtown business core and felt the project didn’t meet city regulations.

The project was designed to have two retail spaces on Pioneer Way; only about 2.5 percent of the 40,000-square-foot building

Affordable housing advocates, on the other hand, felt that the 51 units of affordable housing — the majority of which would be earmarked for veterans — would help with the housing crisis on Whidbey Island.

“They put a lot of work into this project,” Joanne Pelant, Island County’s housing resource coordinator, said of Low Income Housing Institute officials, “and we have a real need for affordable housing, so the decision is disappointing.”

The county had set aside $478,000 to help fund the project, which was planned for the empty property adjacent to Hal Ramaley Memorial Park.

In his decision, Hancock did not address the other, more complicated issues raised in the appeal because it is unnecessary, he wrote.

Oak Harbor Development Director Steve Powers initially determined that the project should go through a “Type IV’ review process because of unresolved concerns.

The process required a public hearing, a recommendation from the hearing examiner and a final decision from the city council, but it has since been changed to remove the council from the equation.

Both the city staff and Bobbink concluded that the project, which went through revisions, complied with the code and recommended that the council approve the development permits. The council followed the recommendations in a 5-4 vote.

Yet Hancock points out that city code expressly states that dwelling units may be the primary use of a site in the subdistricts of CBD-1 and CBD-2, but omits mention of dwelling units as the primary use in the CBD zone. The proposed project was in the CBD zone.

“By any reasonable interpretation of the ordinance,” Hancock wrote, “the city did not intend that dwelling units could be the primary use in the CBD zone.”

He cited the rule “expressio unios est exclusio alterius,” which means the expression of one is the exclusion of the other.

The judge wrote that Wasinger correctly zeroed in on the determinative issue in the case in her comments at the council meeting.

He quoted her saying that CBD-1 and CBD-2 were created to have dwelling units as the primary use, but not the overall CBD district.

“This is common sense to me,” she said. “This is the way I interpret the code.”

On the other hand, the judge wrote that Bobbink “inexplicably” failed to address the issue.

He also wrote that Bobbink may have run afoul of state law in not adopting his own findings of fact and conclusions of law and instead adopting the staff report.

Island County Commissioner Jill Johnson, who’s been involved in affordable housing issues, said she’s confused as to why city planners didn’t come to the same conclusions as the judge. She said it was disheartening to see so much time and money wasted when the community desperately needs housing solutions.

“The whole situation is confounding,” she said.

Oak Harbor City Administrator Blaine Oborn said city officials are evaluating their options.

Two possible options for the city are to terminate the development permits or appeal Hancock’s decision.

Officials at Low Income Housing Institute and Oak Harbor Main Street Association did not immediately return calls for comment.

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