Point Wells: Court of Appeals upholds Snohomish County’s denial of BSRE’s applications to develop Point Wells as an Urban Center

Point Wells photo courtesy Google Earth

By Tom McCormick

On December 27, 2022, the state Court of Appeals upheld the County’s denial of BSRE’s applications to build an Urban Center at Point Wells.

Point Wells is a low-lying property on Puget Sound in unincorporated Snohomish County, directly north of Shoreline. The only road to Point Wells is through Shoreline. The property abuts a steep cliff directly below the Town of Woodway. 

The Court of Appeals reversed an earlier decision of the King County Superior Court, and dismissed BSRE's land-use petition. 

A PDF copy of the Court of Appeals decision can be accessed at https://www.courts.wa.gov/opinions/pdf/838202.pdf .

Background

BSRE owns the land at Point Wells (about 61 acres). An unrelated oil company owns the pier, the oil tanks and pipes, and other structures.

In 2010, at the request of BSRE’s predecessor, Snohomish County designated Point Wells as an Urban Center, re-zoned it, and enacted an updated Urban Center Development Code. Various parties challenged the County’s action, arguing, among other things, that the Urban Center designation was invalid because the site lacked access to high capacity transit. The State’s Growth Management Hearings Board agreed. As stated in its May 2011 decision and order,

"the Board finds the County's Urban Center policies as a whole require ready access to both the road system and transit services. Mere location on an inaccessible transit route is not sufficient and not consistent with these policies.”

The Board invalidated the site’s Urban Center designation, and required the County to take corrective action. The County responded in 2012 by re-designating Point Wells as an Urban Village (generally less density, lower building heights, and no requirement for high capacity transit).

Meanwhile, in February 2011, BSRE submitted to the County its initial applications to develop Point Wells as an Urban Center. BSRE proposed a development with about 3,000 residential units in buildings as tall as 180 feet, and more than 100,000 square feet of office and retail space.

Opponents argued that BSRE’s applications should be rejected because the Growth Management Hearings Board had declared the County’s designation of Point Wells as an Urban Center to be invalid. 

The Washington Supreme Court disagreed, saying that "BSRE's rights vested when it submitted its applications [in February 2011]. [The] later finding of noncompliance [and invalidity by the Growth Management Hearings Board in May 2011] does not affect BSRE's already vested rights."

The maximum building height: 90 feet or 180 feet?

In BSRE’s 2011 application materials, BSRE states:

• “[The County’s] Urban Center Code ... contains the following provision[]:
• Maximum building height is 90 feet.
• An additional 90 feet of building height may be approved under specific conditions.
• ► The Point Wells Urban Center Plan assumes full use of this provision.” (emphasis added.)

BSRE assumed wrong. The specific conditions for an additional 90 feet of building height are set forth in Former Snohomish County Code 30.34A.040(1):

“The maximum building height in the UC zone shall be 90 feet. A building height increase up to an additional 90 feet may be approved . . . when the additional height is documented to be necessary or desirable when the project is located near a high capacity transit route or station.” (emphasis added).

In 2018, the County denied BSRE’s applications for the first time because of substantial conflicts with County Code. One conflict stood out: many of BSRE’s planned buildings were taller than the County Code’s 90-foot maximum (some as tall as 180 feet). The County concluded that BSRE failed to satisfy the Code’s conditions to get an additional 90 feet approved. The Hearing Examiner said this:

“BSRE contends that it need only be "near a high capacity transit route” [to qualify for an additional 90 feet in building height]. … While BSRE is correct that a high capacity transit route is near the project, proximity alone is not enough. [Also, to] give meaning to the words "approval" and "necessary or desirable", it must mean necessity or desirability for some reason other than the applicant's desire. 

"The record lacks any evidence to support a finding or conclusion that the additional height is necessary or desirable from a public, aesthetic, planning, or transportation standpoint."

BSRE appealed the Hearing Examiner’s decision. The King County Superior Court gave BSRE an opportunity to re-activate and re-submit its applications. BSRE corrected some shortcomings, and re-submitted its applications in 2019. But several substantial conflicts remained.

Significantly, many of BSRE’s planned buildings remained taller than the County Code’s 90-foot maximum. As a result, in 2021 the County again denied BSRE’s applications. BSRE appealed.

In early 2022, the King County Superior Court (a different judge than before) gave BSRE another opportunity to re-submit its applications. Both the County and BSRE appealed the court's 2022 decision, both wanting the Court of Appeals to rule on the maximum building height issue and other issues.

Court of Appeals says the County’s interpretation stands — the maximum building height is 90 feet; BSRE’s applications were appropriately denied.

On December 27, 2022, the Court of Appeals ruled against BSRE on the maximum building height issue, finding it unnecessary to address any of the other substantial conflicts that the County identified. On the building height issue, the court concluded:

"BSRE did not carry its burden in establishing that the County erroneously interpreted or clearly erroneously applied its own Code.”

 

The Court of Appeals found "BSRE’s arguments unpersuasive”:

"BSRE’s focus on one phrase in the Code (“. . . located near a high capacity transit route or station. . .”) ignores the repeated statements of legislative intent for residents of a high-density urban centers to have ready access, not just proximity, to mass transit stops and stations. The statute is replete with such references. …

[Also,] BSRE’s interpretation ignores the prior additional qualifying phrase that the increase [in building height of an additional 90 feet] must be “necessary or desirable.” Former SCC 30.34A.040(1). On appeal, BSRE argues, without citing any authority, that “desirable” means subjectively desirable to it, the developer. We agree with the County, that the subject to whom the building increase must be desirable is the County. … [An] Urban Zone without a high capacity transit system of any kind would be understandably undesirable to the County. …

For these [and other] reasons, we interpret Former SCC 30.34A.040(1) in the larger statutory context in which it was adopted and conclude that the County’s intent is, not only proximity to high capacity transit, but the ability of its future residents to use and access the high capacity transit.”

The Court of Appeals found that BSRE did not carry its burden in establishing that the County erroneously interpreted or applied its own Code as to the maximum building height. Based on this one substantial conflict, it denied BSRE’s petition, thereby upholding the County’s denial of BSRE’s applications to develop Point Wells as an Urban Center.

While the Court of Appeals decision upholding the County’s denial of BSRE’s applications is great news for our community and the environment, there is disappointment and uncertainty too.

These will be discussed in a companion article to be posted tomorrow.

(see previously published articles on Point Wells here)