Sound Off: Legally, Oak Harbor council was right to approve LIHI project

  • Friday, August 30, 2019 3:42pm
  • Opinion

The Oak Harbor City Council’s recent decision to approve the “LIHI” project proposal and boundary line adjustment application was both legally required and fiscally responsible. The four council members who voted to accept the recommendation of city staff and the Oak Harbor hearing examiner’s formal findings of fact and conclusions of law should be applauded and not criticized for their decision because they were clearly focused on their obligations under the law and not intimidated by “the loudest voices in the room.”

I opposed the LIHI project from its conception. I own commercial property in downtown Oak Harbor, most of which is in the central business district, so I had some skin in the game when this proposal came up. The placement of an apartment building in the downtown central business district appeared contrary to the overall purpose and intent of the zoning code affecting that part of our city.

I also didn’t care for the project owner’s manipulation of the boundary line adjustment ordinance for the purpose of minimizing the amount of retail space that should have been placed on the Pioneer Way side of the building. I provided written comments opposing the project and I provided similar testimony and written materials on behalf of Oak Harbor Main Street and the Oak Harbor Chamber of Commerce when the public hearing was conducted in front of hearing examiner, Michael Bobbink.

However, despite my strong thoughts on this subject, I fully support the city council’s “quasi-judicial” decision to approve the project. Had the council rejected this proposal in light of the hearing examiner’s findings and the status of our ordinances, I am certain the owner of the project would have filed an appeal and that a reviewing court would have characterized any decision to reject the project without an articulable and valid reason as “arbitrary and capricious.”

With that finding, the reviewing court would have ordered the council to approve the project. When government officials make arbitrary and capricious decisions that affect property rights and cost property owners money, those officials and the entity they represent can be liable for the economic losses and costs incurred by the owner.

If the four council members who voted to approve this project and the boundary line adjustment had not had the courage to accept the recommendation of the hearing examiner and what I have to assume was the advice from the city attorney, the city and the individual council members would have been subject to a lawsuit and potentially liable for any economic damage the landowner might have sustained.

Simply stated, there was no room for a “no” vote in this situation because the ordinances in effect at the time this project was proposed did not clearly preclude either the proposed use or the boundary line adjustment. Those loosely worded ordinances combined with a clear and unequivocal opinion from the hearing examiner made any decision to reject the project a huge liability for Oak Harbor and its individual council members.

Ultimately, the city would have been ordered by a court to approve the application.

Elected officials at all levels of government often act or fail to act in a way that frustrates and disappoints the citizenry. But, despite my personal opposition to the LIHI project, I was impressed with our city council’s willingness to put the interests of the city and its taxpayers above their own feelings and do so in spite of the hoots and hollers that pervaded the meeting at which this decision was made.

It was the only lawful choice and our elected officials’ willingness to follow the “rule of law” in these situations is what should matter most to all of us.

• Christon Skinner is a lawyer with a law office located in Oak Harbor serving Island, Skagit and San Juan counties.

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