Jan. 13, 2010 - After more than two years of court battles, attorney fees, struggling to be heard, and trying to champion the preservation of rural zoning and land uses in our local community, the Cedar Hills Rural Preservation Alliance (CHRPA) reached an agreement with King County and the YWCA that will allow the Passage Point housing project to proceed, conditionally. Read more...
On April 14, 2009, Snohomish County Superior Court Judge George Bowden ruled that the construction permit for the Passage Point transitional housing project was issued in violation of the King County Code 21A.32.045 and is therefore vacated.
Please read the complete April 14th oral decision.
Snohomish County Superior Court Judge George Bowden ruled:
1. The Passage Point transitional housing project is not allowed under the RA-10 zoning for the site.
2. The former Cedar Hills Alcohol Treatment center's chemical dependency treatment services terminated on October 31, 2002 with the relinquishment of its license to operate such a facility, and the former CHAT facility was closed entirely by the end of 2002. Permit applications for Passage Point occurred years after the legal nonconforming status of the CHAT facility had been discontinued.
3. The proposed Passage Point transitional housing project constitutes a separate use from a residential chemical dependency treatment center and does not constitute the continuation of the former CHAT facility use.
4. The construction permit for the Passage Point project authorized expansion of the nonconforming CHAT facility (which is not allowable under King County Code).
5. For the above reasons, the construction permit for the Passage Point project was issue in violation of King County Code 21A.32.045.
The Court ordered:
1. The construction permit for the Passage Point project was issued in violation of
the King County Code 21A.32.045 and is therefore vacated.
2. The Cedar Hills Rural Preservation Alliance is hereby awarded its costs in preparing the certified record (cost of copies).
The Cedar Hills Rural Preservation Alliance filed a LUPA complaint October 31, 2008 under the land use petition act (LUPA) appeal process in Snohomish County Superior Court, case #08-2-08848-9. Cedar Hills Rural Preservation Alliance appealed the Construction Permit B08C0036, issued by the King County Department of Development and Environmental Services (DDES) on October 8, 2008, for the Passage Point housing project on grounds that the permit was issued in violation of the county zoning code,Title 21A KCC.
LUPA Case filings:
WA State Court of Appeals case filings:
The legal claims set forth in the land use petition include:KCC 21A.32.025 provides that a legal nonconforming use shall be forfeited if the nonconformance is discontinued for more than 12 months. The prior use, Cedar Hills Alcohol Treatment (CHAT) facility closed down and was discontinued in December 2002.
KCC 21A.32.045 states that a nonconforming use that has been discontinued may be re-established if it meets each of three requirements:
Under KCC 21A.32.055, a modification to a nonconforming use, structure or site improvement may only be approved if the modification neither expands an existing nonconformance nor creates a new type of nonconformance. Passage Point expands the existing nonconformance and would create a new type of nonconformance, since transitional housing, a social service, is a different type of nonconforming use than a drug and alcohol treatment facility.
Under KCC 21A.32.065, an expansion of a nonconforming use may not be approved if the expansion would allow for urban growth outside of urban growth areas. Passage Point's establishment in the RA zoned area would conflict with rural and resource lands policies and constitute impermissible urban growth outside of the urban growth area in violation of KCC 21A.32.065 by, among other things, placing in a rural area social services requiring support by urban-level services and facilities.
The complaint filed Nov. 19, 2007 in Snohomish County Superior Court, case number 07-2-08807-3, was stayed Jan. 8, 2008. Please read about the details concerning the stay agreement under Alliance News. Use the links below for the full text of the complaint:
Ch. 21A.32 within the King County Code (KCC) states that a legal nonconforming use shall be forfeited if the nonconformance is discontinued for more than 12 months. Cedar Hills Alcohol Treatment (CHAT) facility has been closed since December 2002.
Ch. 21A.32 also states a nonconforming use which has been discontinued may be re-established or reconstructed if it meets each of three requirements:
1) the use is not expanded
2) a new nonconformance is not created
3) the use has not been discontinued for more than 12 months, or it if has, a complete permit application for reconstruction of a discontinued use is submitted within the 12 month period of its discontinuance.
Use of the CHAT facility for the proposed Passage Point transitional housing cannot be lawfully created as a re-established nonconforming use because:
1) the proposed transitional housing represents an expansion beyond the scope of the prior CHAT facility
2) it results in the creation of a new nonconformance
3) the prior use has been discontinued for more than 12 months, and permit applications for reconstruction were not submitted within 12 months of the date of discontinuance of the CHAT facility.
The Passage Point transitional housing proposal may not be allowed, permitted or authorized as the continuance of a legal nonconforming use.
In addition, underKCC 21A.08.050A & B, RA zoning allows social service uses as an outright permitted use through the re-use of a public school facility or as a conditional use through the re-use of a surplus non-residential facility. The proposed Passage Point transitional housing facility does not involve either the re-use of a public school facility or the re-use of a surplus non-residential facility.
The proposed Passage Point transitional housing is not allowable at the CHAT facility site under the applicable RA-10 zoning.
KCC 21A.32.065 (D): "No expansion shall be approved that would allow for urban growth outside the urban growth area, in conflict with King County Comprehensive Plan rural and natural resource policies and constitute impermissible urban growth outside an urban growth area."
Passage Point includes plans for two additional residential apartment buildings which constitutes urban growth -- this also does not comply with King County Code.
Cedar Hills Rural Preservation Alliance