Point Wells: Disappointment and uncertainty in the wake of decision by state Court of Appeals

Saturday, December 31, 2022

By Tom McCormick

On December 27, 2022, the state Court of Appeals upheld Snohomish County’s denial of BSRE’s applications to develop Point Wells as an Urban Center. See my earlier article at: https://www.shorelineareanews.com/2022/12/point-wells-court-of-appeals-upholds.html

The court's decision is great news for our community and the environment, but in its wake there is disappointment and uncertainty.

Architectural site drawing from BSRE 
Disappointment: Wasted time and money.

When BSRE submitted its applications to the County in 2011, its plans included many buildings taller than the County's 90-foot maximum for Urban Centers (some as tall as 180 feet). BSRE assumed that the County would allow its 180-foot towers. BSRE assumed that it could satisfy the “additional height” conditions in the County Code: 

"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 …." 

In its project narrative, BSRE stated: "The Point Wells Urban Center Plan assumes full use of this provision."

BSRE assumed wrong. 

In 2018 and again in 2021, the County denied BSRE’s applications because they substantially conflicted with Code requirements. One conflict stood out: BSRE’s plans included many buildings taller than the County’s 90-foot maximum. This was a Code conflict because the County concluded that BSRE did not satisfy the Code's “additional height” conditions necessary to permit buildings taller than 90 feet. The state Court of Appeals agreed. Relying solely on the building height conflict, it upheld the County’s denial of BSRE’s applications.

It is a mystery why, in 2011, BSRE did not ask the County for written confirmation that its assumption was correct. It could have asked the County for a formal Code Interpretation on the maximum building height— perhaps BSRE's single most important critical path issue. The entirety of its plans depended on having buildings taller than 90 feet.

"Central Village" site concept drawing from BSRE
Even after the County alerted BSRE in 2015 of concerns about whether BSRE satisfied the Code's “additional height” conditions, BSRE continued to assume that 180-foot buildings were allowable. (The County alerted BSRE promptly after receiving input from the public arguing that, due to the lack of high capacity transit access, buildings taller than 90 feet were not permitted.) It is a mystery why, even after the County alerted BSRE in 2015, BSRE did not ask the County for a formal Code Interpretation on the maximum building height  (or perhaps the County could have issued a Code Interpretation on its own initiative?).

If a Code Interpretation had been sought, and if the County had responded by confirming that 90 feet was the maximum building height due to BSRE not satisfying the high capacity transit and other conditions, everyone would have known years ago that 180-foot buildings were not permitted at Point Wells. 

BSRE would have revised its plans years ago, with no buildings taller than 90 feet. The parties would have avoided the years-long fight over the maximum building height and various dependent issues. The County, the public, the City of Shoreline, the Town of Woodway, and BSRE all would have saved vast amounts of time and money.

Uncertainty about what’s next: More court proceedings? Will BSRE apply to develop Point Wells as an Urban Village?

BSRE can ask the state Court of Appeals to reconsider its decision upholding the denial of BSRE’s applications, and/or BSRE could petition the state Supreme Court to review the decision (there is no appeal of right). We should know by late January how BSRE decides to proceed. 

If the decision by the state Court of Appeals stands, and if BSRE still wishes to develop Point Wells, it would need to start over, and apply to develop the site as an “Urban Village” (the site’s current designation). Urban Villages are not required to provide direct access to high capacity transit.

1. If Point Wells remains part of unincorporated Snohomish County.

Assuming Point Wells continues to be a part of unincorporated Snohomish County, BSRE would submit its Urban Village plans to the County for approval under the County’s development code governing Urban Villages (SCC 30.31A.115). Three provisions of interest are: 

— The maximum building height is 75 feet, but the County’s planning director may recommend a height increase in appropriate locations within the Urban Village of up to an additional 50 feet when the applicant prepares an environmental impact statement, and where such increased height in designated locations does not unreasonably interfere with the views from nearby residential structures. 

— The County’s more protective post-OSO landslide hazard rules will apply to any development at Point Wells.

— Maximum residential density is 44 residential units per gross acre. If all of Point Wells were considered as one site, the maximum density would be 2,684 residential units (= 44 X 61 acres). 

Importantly, this theoretical maximum density is subject to other restrictions and requirements that likely would reduce the density considerably. For instance, SCC 30.31A.115(9) provides special requirements applicable to Point Wells, including the following: 

"The applicant shall successfully negotiate binding agreements for public services, utilities or infrastructure that are to be provided by entities other than the county [(for example, the City of Shoreline)] prior to the county approving a development permit that necessitates the provision of public services, utilities or infrastructure; [and] The intensity of development shall be consistent with the level of service standards adopted by the entity identified as providing the public service, utility or infrastructure.” 

Transportation Corridor Study
Since the City of Shoreline has adopted a 4,000 average daily trip limit for the 2-lane Richmond Beach Drive (currently the only access to Point Wells), this limit alone could reduce the number of permitted residential units considerably. 

Further, the number of units could possibly be reduced as a result of the environmental review required by Washington’s State Environmental Policy Act (SEPA).

2. If Point Wells is annexed by the Town of Woodway or the City of Shoreline.

A few years ago, the Town of Woodway and the City of Shoreline entered into an agreement that gives the Town the first right to annex Point Wells, provided it takes certain steps by June 11, 2023. If the Town fails to act by the deadline, then the City gets the right to annex Point Wells. 

The Woodway Town Council will hold a special meeting on Tuesday, January 3, 2023, at 4:00pm, at the Woodway Town Hall, to discuss Point Wells.

BSRE could wait to see if either the Town or the City annexes Point Wells, and then submit to the annexing jurisdiction an application to develop the site as an Urban Village under the annexing jurisdiction’s Urban Village rules. 

As part of the agreement between the Town and the City, the parties have adopted nearly identical development code provisions that will apply to proposals to develop Point Wells as an Urban Village following annexation. Three provisions of interest are (see Town of Woodway Municipal Code Chapter 14.40, and City of Shoreline Municipal Code Chapter 20.94):

— The maximum building height is 45 feet, except for areas east of the BNSF railroad right-of-way, where the maximum building height is 35 feet. The maximum building height may be increased to 75 feet west of the BNSF railroad right-of-way if the applicant conducts a view analysis demonstrating certain public views from Richmond Beach Drive to Admiralty Inlet are not impacted. 

— Rules similar to the County’s post-OSO landslide hazard rules will apply to any development at Point Wells.

— Maximum residential density is 44 units per "net acre," excluding roads, drainage detention/retention areas, biofiltration swales, areas required for public use, tidelands, and critical areas and their required buffers. Assuming 18 net acres at Point Wells, that is a maximum residential density of 792 units.

Point Wells would need environmental remediation before construction.
Photo by Steven H. Robinson

Site remediation

BSRE must remediate (clean up) the Point Wells site before commencing construction of an Urban Village. Remediation will take many years and cost millions of dollars.

In 2020, BSRE filed a lawsuit against the oil company, demanding that the oil company remediate the site. The oil company then filed claims against BSRE. The lawsuit is ongoing. Trial is set for late 2023. It is possible that the parties could settle the matter before then.

Resumption of oil operations?

Instead of developing the site as an Urban Village, could the marine fuel and asphalt oil storage and distribution operations at Point Wells be resumed? Snohomish County has not ruled on the matter.

The oil company at Point Wells had been operating marine fuel and asphalt oil storage and distribution operations until June 2020, when its lease with BSRE ended. About a year later, the public asked the County to rule that oil operations can never be resumed. The public cited a special Code provision prohibiting nonconforming uses from resuming if such uses have been discontinued for more than a year (oil operations are a nonconforming use under the site’s current Urban Village zoning). 

In November 2022, the County’s Department of Planning and Development Services (PDS) sent the oil company a letter that described the public’s concerns, and what PDS might do:

"Upon learning about [a recent] pier maintenance project, several members of the public expressed concern to PDS regarding the possibility that uses of the site, considered nonconforming under Snohomish County Code, have been abandoned and may not resume. ...

Although PDS is not currently requesting information from you related to prior or current uses at Richmond Beach Terminal, please know that the issue raised by the public regarding nonconforming and abandoned uses may be raised again in the future. At such point PDS may be required to directly respond to the question."

Stay tuned for further developments.


Anonymous,  January 1, 2023 at 8:36 PM  

Thank you for such a well written and informative article on a complex issue

Anonymous,  January 2, 2023 at 12:02 PM  

Since the author opposed this development, I would have thought the failure of the developer to get a code interpretation on height worked out for the best for Save Richmond Beach and the author.

Anonymous,  January 2, 2023 at 2:49 PM  

Puget Sound is in peril and our salmon and orcas are staring down extinction. The best solution for Point Wells and our environment is to clean it up and return it to its natural state.

Anonymous,  January 3, 2023 at 11:56 AM  

We need more areas returned to their natural state, not 2,000 more condos for upper-middle class out-of-state transplants. The human drive for expansion and consumption is kind of disgusting.

Anonymous,  January 3, 2023 at 5:23 PM  

Exceeding the maximum building height was a big reason why the County denied BSRE’s applications. But even if all proposed buildings were no taller than 90 feet, there is little doubt that the County still would have denied BSRE’s applications due to other substantial code conflicts found by the Hearing Examiner, any one of which was sufficient grounds for denial: locating some buildings and the second access road within a landslide hazard area without satisfying certain safety conditions; locating some buildings within residential setback areas; and failing in the geotechnical report to confirm the site's suitability for the proposed development given its high liquefaction risk. Lots of time and money (including legal fees) would have been saved had the maximum building height been removed from the list of contested issues. Also, consider what might have happened if BSRE had sought a code interpretation when it submitted its initial applications in 2011. At that time, the County and BSRE were aligned in arguing to the Growth Management Hearings Board that the County's designation of Point Wells as an Urban Center was appropriate despite the lack of existing or planned access to high capacity transit. In a brief filed by the County three days before BSRE submitted its 2011 applications, the County stated, "Because the site is bisected by a railway corridor used by Sound Transit, Point Wells meets the designation criterion of being "located on a regional high capacity transit route." " The quoted phrase is very similar to the locational criteria in the County Code for an additional 90 feet of building height (180 feet total)—that the project be "located near a high capacity transit route or station.” It is very possible that the County would have ruled in 2011 that BSRE’s project met the Code's locational criteria for 180-foot buildings despite the lack of existing or planned access to high capacity transit. — Tom McCormick

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