Hearing examiner denies Point Wells high-rise condo proposal

EVERETT — A plan to build a high-rise condo development at Point Wells has once again been rejected by the Snohomish County hearing examiner, who ruled on Friday that the decade-old proposal still fails to meet legal requirements.

Hearing Examiner Peter Camp gave county planning officials permission to deny the proposal “because of substantial conflicts with county code,” including buildings that would be too tall and too close to landslide hazard areas.

Instead of redesigning earlier plans to comply with the code, developer BSRE Point Wells sought exceptions to the rules it would break by building some 3,000 condos on an industrial site between Puget Sound and a steep hillside near Woodway. Yet the developer failed to prove there were special circumstances that qualified the plan for those exceptions, Camp decided.

Released just before 5:45 p.m. on Friday, Camp’s latest decision deals yet another setback to the Point Wells project, which first crossed the desk of county planning officials in a 2011 permit application.

Some of the buildings proposed would reach heights of 180 feet, or about 17 stories, according to paperwork submitted by BSRE, an acronym for Blue Square Real Estate.

The developer’s attorneys did not respond to emails and phone calls from The Daily Herald requesting comment on the most recent ruling.

Residents and government authorities have repeatedly raised concerns about traffic, landslide risks and other issues associated with the project. They reiterated those points during a November hearing before the hearing examiner.

County Planning and Development Services department staff, too, recommended against the latest version of the plan. Camp cited many of the problems that the department highlighted during the November hearing, including discrepancies in documents submitted by the developer.

“The decision cited a number of things we pointed out, where the applicant’s plans were not internally consistent on what they were asking for,” said county planning supervisor Ryan Countryman. “That’s been part of the challenge all along.”

The project’s lead architect told the hearing examiner last fall that county planners did not offer much help when the project team was trying to navigate the permitting process. The architect, Dan Seng from the Seattle-based firm Perkins+Will, touted the benefits of the project, which would also include public beach access and space for restaurants and retailers.

Camp rejected BSRE’s argument that the planning department did not review the application in good faith.

“Further, BSRE’s hands are not clean,” Camp said in the 77-page ruling. “It failed to take advantage of its mulligan or do-over and did not materially change its application or submit alternatives.”

But the plan’s backers haven’t exhausted all their options to make their vision a reality. The developer, or anyone else who is party to the hearing examiner proceedings, can formally request that Camp reconsider. The deadline to do so is Feb. 8, Camp said in the ruling.

The developer can also appeal his decision to the Snohomish County Council. Such an appeal must be filed on or before Feb. 12, according to the ruling.

Then, if the council sides with the hearing examiner, the court system offers another avenue for appeal. That’s the route that BSRE took in 2018, when Camp denied an earlier version of the project.

After the County Council upheld Camp’s 2018 ruling, BSRE asked King County Superior Court to review the denial. King County Superior Court Judge John McHale gave the developer additional time to seek approval for the project.

McHale ruled that BSRE had to address the issues identified by Camp in his earlier ruling. BSRE has appealed McHale’s ruling to the state Court of Appeals, however, seeking clarification on two key county code requirements that Camp cited related to building height.

One rule requires setbacks from tall buildings to lower-density residential development.

The other rule bars buildings higher than 90 feet unless there’s a “high capacity transit route or station” nearby.

BSRE has offered to build a platform for a Sound Transit commuter rail line that travels a railroad corridor running through the site. But the developer “made no serious effort” to make the new station a reality and didn’t submit documentation to show definitively whether the transit agency supports the idea, Camp said in the ruling.

In its latest set of plans, submitted in December 2019, the developer sought variances that would grant it special permission to disregard the two building height limits.

But Camp ruled that the developer failed to prove that those variances would not harm other properties or public welfare. Some of the proposed buildings would detract from the views of properties neighboring the development, Camp said.

BSRE made a few more changes to its plan, including reducing the number of homes by about 240, outlining a four-phase development schedule and relocating some — though not all — of the proposed buildings to be outside required setback areas.

“Otherwise, the project proposal remains largely unchanged,” Camp said.

BSRE also didn’t to address questions about whether the development can safely be built in an area that’s known for being unstable.

The site overlaps with landslide hazard zones, which typically can only be developed if an applicant proves there is no alternative location for a structure on a given property. BSRE failed to provide enough evidence that buildings it planned for those hazardous areas could go nowhere else, Camp said.

Additionally, the county’s chief engineering officer has denied the developer’s request for a “deviation,” or special consent to build in those otherwise-prohibited hazard areas.

“BSRE bet entirely on its claimed right to build taller than 90 feet and its deviation request to build within the landslide hazard area and setback,” Camp said.

Rachel Riley: 425-339-3465; rriley@heraldnet.com. Twitter: @rachel_m_riley.