IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ABBEY ROAD HOMEOWNERS ASSOCIATION; NEIL BARNETT; No. 80999-7-I MANAJI SUZUKI; JOHN STILIN; and (consolidated with No. 81070-7-I) SHERRY STILIN, DIVISION ONE Respondents, UNPUBLISHED OPINION v.
CITY OF REDMOND; EASTSIDE RETIREMENT ASSOCIATION; and EMERALD HEIGHTS,
Appellants.
APPELWICK, J. — The City approved permits necessary for construction of a
large assisted living residence on Emerald Heights’s retirement campus. The
property is zoned R-6. The building would occupy what is presently a greenbelt
abutting 176th Avenue NE in Redmond. The City determined that the construction
would not have significant environmental impacts, and issued a determination of
DNS under SEPA. The HOA of Abbey Road, a community of single-family
residences on the other side of 176th Avenue NE, filed a LUPA appeal of the
hearing examiner’s determinations to the superior court. The superior court
overturned the City’s issuance of a DNS, but reserved ruling on the permit issues.
Emerald Heights appeals. We reverse. No. 80999-7-I/2
FACTS
Emerald Heights is a retirement community in the Education Hill
neighborhood of the city of Redmond (City). Abbey Road is a community of large
single-family residences. The two were developed by the same developer in the
1990s and sit on opposite sides of 176th Avenue Northeast (NE).
Emerald Heights consists of a large number of independent living units,
memory care units, assisted living units, and skilled nursing units. The larger main
buildings are in the center of the campus. The eastern edge of the property
(bordering 176th Avenue NE) is currently a roughly 80 foot deep greenbelt that
largely blocks views of the campus buildings.
Abbey Road consists of large single-family homes with yards, mature
landscaping, traditional gabled roofs, and consistent exterior materials including
lap board siding. The subdivision has a homeowners association (HOA) and
covenants, conditions, and restrictions that impose aesthetic controls within the
division. The size of homes in Abbey Road are limited to two and one half stories.
There is also a minimum roof-slope requirement, as well as a minimum square
footage requirement for new homes.
At the time Emerald Heights and Abbey Road were developed, the area
was zoned R-4, which imposed a 30 foot height limit on buildings. In order to
develop the Emerald Heights campus, the original developers secured a planned
unit development (PUD) and special development permit (SPD) in 1988. The PUD
and SPD allowed Emerald Heights to exceed the 30 foot maximum, subject to
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some conditions. The original PUD and SPD restricted development of large
buildings to the central portion of the campus. It also required the retirement center
be as far as possible from the neighboring single-family residences.
In 2010, Emerald Heights applied for a development guide amendment to
rezone its property from R-4 to R-6 in order to allow additional development on the
campus. The Redmond City Council approved the rezone in 2011. The rezone
supplanted the PUD conditions.
In 2016, Emerald Heights began the preapplication process for further
development on the campus. The proposal at issue here calls for construction of
three new buildings: a 44,149 square foot assisted living facility on the eastern side
of the campus along 176th Avenue NE and two independent living facilities totaling
70,638 square feet along the southern portion of the campus. The assisted living
facility would be about 300 feet long and 37 to 45 feet tall, or about 3 stories in
most places. The side of the building that faces 176th Avenue NE will have
windows covering the façade. It will be screened by a combination of existing trees
and new plantings and landscaping.
Emerald Heights and the City originally proceeded under a “Site Plan
Entitlement” (SPE) process. Beginning in August 2016, Emerald Heights worked
with the City’s Design Review Board (DRB) regarding the project, incorporating its
feedback as the proposal developed.
On May 10, 2017, the City sent a letter to nearby residents informing them
of the project and inviting them to comment on the proposal. Local residents
3 No. 80999-7-I/4
expressed considerable interest in the proposal, prompting the City to arrange a
meeting between Emerald Heights and the Abbey Road HOA. On June 9, 2017,
Emerald Heights hosted a meeting with the HOA to discuss the project and its
concerns.
On April 23, 2018, the HOA’s attorney sent a letter to the City raising
concerns that the SPE process was not sufficient for the proposal. It asserted that
a conditional use permit (CUP) was also required. Emerald Heights then applied
for a CUP for the project with the City.
After Emerald Heights filed the CUP application, Emerald Heights continued
to meet with the DRB and incorporate further changes to the project. The DRB
eventually voted to approve the project on September 6, 2018. Through the DRB
review process, Emerald Heights agreed to numerous changes to the proposal,
including (1) shifting much of the building back an additional eight feet from the
property line, (2) shifting back the top two floors on the rest of the building an
additional five feet, (3) retaining additional mature trees and removing a walking
trail between the building and the street to accommodate more trees, (4) adding
trees and increasing their initial size at planting to provide additional screening, (5)
removing units from the most visible corner of the building, (6) incorporating
residential features like darker colored siding materials, roof parapets, eave
overhangs, window bays, and sloped roofs.
Emerald Heights also submitted an environmental impact checklist under
the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Emerald
4 No. 80999-7-I/5
Heights submitted its SEPA application to the City’s Technical Committee—the
City’s SEPA Responsible Official—on June 14, 2018. The technical committee
issued a determination of nonsignificance (DNS), followed by a public comment
period which ran through August 9, 2018. The HOA appealed the DNS to the
Redmond City Hearing Examiner on August 22, 2018.
The technical committee also reviewed the SPE and CUP applications in
order to provide recommendations to the hearing examiner on those issues. The
technical committee recommended that the hearing examiner approve both
permits with conditions.
The hearing examiner conducted a consolidated hearing on all three
issues—the SPE, CUP, and DNS—on January 7, 14, and 28. The hearings
included argument by counsel and public comment proceedings. The primary
issues considered by the hearing examiner included the aesthetic impacts of
developing the greenbelt buffer, loss of privacy and views for residents closest to
the development, lighting impacts, loss of vegetation and trees, traffic congestion,
construction impacts, postconstruction noise from social events, odors from the
facilities kitchen, whether the development was incompatible with the surrounding
neighborhood, future impacts, and adverse impacts on emergency services.
The hearing examiner granted the CUP and SPE subject to conditions and
denied the SEPA appeal. The HOA then filed a land use petition appealing that
determination to the King County Superior Court. The superior court determined
that the hearing examiner had erred in affirming the DNS. Specifically, it found
5 No. 80999-7-I/6
that the hearing examiner erred when it determined that the development “[would]
not have significant adverse aesthetic, views, privacy, lighting, trees (screening)
and land use impacts . . . under SEPA.” It did not rule on the SPE or CUP issues.
Emerald Heights and the City appealed. The HOA and certain individual
residents of Abbey Road (collectively, HOA) cross appealed.
DISCUSSION
Emerald Heights and the City argue the superior court erred in overturning
the hearing examiner’s affirmance of the DNS. They also argue the superior court
erred in failing to rule on the hearing examiner’s decisions on the SPE and CUP.
They argue these decisions of the hearing examiner should be affirmed. The HOA
assigns no error to the superior court’s ruling.1
The Land Use Petition Act (LUPA), chapter 36.70C RCW, governs judicial
review of land use decisions by local jurisdictions. In a LUPA action, we stand in
the shoes of the superior court and review the hearing examiner’s action on the
basis of the administrative record. Cingular Wireless, LLC v. Thurston County, 131
Wn. App. 756, 767, 129 P.3d 300 (2006).
When reviewing a local decision maker’s application of law to the facts, the
“clearly erroneous” standard applies. RCW 36.70C.130(1)(d); Cingular Wireless,
131 Wn. App. at 768. A decision is clearly erroneous when the reviewing court is
1 In its brief, the HOA asked us not to consider whether the hearing examiner was correct in affirming the CUP and SPE if we reverse the superior court’s ruling on the DNS. It abandoned that position at oral argument, and encouraged us to overturn the hearing examiner’s decision on those issues if we reverse the superior court’s ruling on the DNS.
6 No. 80999-7-I/7
left with a definite and firm conviction that a mistake has been made even if some
evidence supports the hearing examiner’s decision. Norway Hill Pres. & Prot.
Ass’n v. King County Council, 87 Wn.2d 267, 274, 552 P.2d 674 (1976). But, a
reviewing court should not substitute its judgment for that of the administrative
decision maker. Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309
(1978).
The party seeking relief from a land use decision bears the burden of
establishing that the decision-maker’s application of the law to the facts was clearly
erroneous. Cingular Wireless, 131 Wn. App. at 767-68. Here, that is the HOA.
The hearing examiner’s decision must be supported by substantial
evidence. RCW 36.70C.130(1)(c). Substantial evidence is evidence that would
persuade a fair-minded person of the truth of the statement asserted. Cingular
Wireless, 131 Wn. App. at 768. Our deferential review requires that all evidence
and reasonable inferences be considered in the light most favorable to the party
who prevailed at the highest forum that exercised fact-finding authority. Id. Here,
that is Emerald Heights.
I. Determination of Nonsignificance
The appellants argue that the superior court erred in overturning the hearing
examiner’s affirmance of the DNS. The DNS was issued pursuant to SEPA.
SEPA requires a threshold determination on whether any governmental
action will have significant environmental impacts. RCW 43.21C.030; WAC 197-
11-310(1). This determination must be documented in either a determination of
7 No. 80999-7-I/8
significance (DS) or a DNS. WAC 197-11-310(5). A DNS is appropriate where
the SEPA responsible official determines there will be no probable significant
adverse environmental impacts from a proposal. WAC 197-11-340(1).
“Significant” in this context means a reasonable likelihood of a more than moderate
adverse impact on environmental quality. WAC 197-11-794(1). Significance
involves context and intensity and does not lend itself to a formula or quantifiable
test. WAC 197-11-794. Consideration of this and other relevant factors is
generally achieved by utilizing the environmental checklist found in WAC 197-11-
960. WAC 197-11-315. That checklist contains a section addressing aesthetic
concerns. WAC 197-11-960(B)(10).
In applying the clearly erroneous standard to the issuance of a DNS, it is
appropriate to consider the broad public policy of consideration of the
environmental amenities and values in decision-making by government bodies.
Norway Hill, 87 Wn.2d at 272. However, SEPA “does not demand any particular
substantive result in governmental decision making.” Id. (quoting Stempel v. Dep’t
of Water Res., 82 Wn.2d 109, 118, 508, P.2d 166 (1973). SEPA requires
consideration of environmental factors along with economic and technical
considerations. Id.
The HOA’s primary argument against the DNS on appeal is that the hearing
examiner did not appropriately consider the aesthetic impacts of the building.
Among the aesthetic considerations it puts forward are views, privacy, lighting, and
screening from trees. Aesthetic considerations—scale, light, traffic, density, and
8 No. 80999-7-I/9
open space—can be a significant environmental impact, and local decision makers
have declined to issue a DNS on that basis. See Victoria Tower P’ship v. City of
Seattle, 59 Wn. App. 592, 601-02, 800 P.2d 380 (1990).
A. Location on the Campus
The HOA identifies the location of the proposal as a “foundational cause” of
the adverse aesthetic impacts of the proposal. It claims the building would not
have significant adverse impacts if it was placed in a different location on the
Emerald Heights campus. It argues that, by placing the building so close to 176th
Avenue NE, the aesthetics of removing many existing trees and replacing them
with a large building would be significant.
The hearing examiner considered this argument. She found that many
other portions of the campus were unbuildable due to steep slopes and a stream
buffer. The HOA assigned error to this finding, but provided no argument in
support of the assignment. We accept the hearing examiner’s finding that certain
other areas of the campus are unbuildable.
The HOA is correct that the original PUD restricted large buildings to the
center of the campus. But, both the hearing examiner and the superior court
agreed that the 2011 rezone of the Emerald Heights campus replaced the original
1988 PUD for the campus.2 The HOA has withdrawn its cross appeal of those
determinations.
2 The HOA nevertheless points to statements from the city council members who approved the 2011 rezone indicating they would not have done so if they had known that large construction would be permitted so close to the perimeter of the
9 No. 80999-7-I/10
B. Height, Bulk, and Scale
The HOA also contends that the size and scope of the project is simply
incongruous with the rest of the neighborhood. The hearing examiner considered
this argument. It considered that the height of the building complies with applicable
codes. The HOA characterizes this review as being merely “if the project meets
the City of Redmond Code requirements, it will not have significant adverse
impacts.” But, the hearing examiner’s reasoning was not so simple. While it
considered that the height was within code limits, it also considered the degree to
which the view of the building would be obstructed by vegetation.3 And, it
considered that the neighborhood contains other large buildings, including a high
school and a church.
C. Lighting and Privacy
The HOA also argues that significant adverse effects will result from the
internal lights in the proposed building in the evening. It argues that the building
campus. But, legislative intent cannot be shown by statements of individual legislators. See Woodson v. State, 95 Wn.2d 257, 264, 623 P.2d 683 (1980). 3 The HOA disputes the level to which the vegetation will actually obstruct
the views of the building. It points to the fact that some of the trees are deciduous and will lose their leaves in the winter. It also argues that the evergreen trees that will be planted as part of the project will not be tall enough at the time of planting to provide full screening. It introduced statements from an arborist that the newly planted vegetation would not provide sufficient screening. But, Emerald Heights introduced statements from their landscape architect and another arborist detailing why the screening would be sufficient. The hearing examiner considered the competing testimony in detail, and found that the proposed landscaping buffer would provide sufficient screening. We must accept the hearing examiner’s assessment of weight and credibility. Families of Manito v. City of Spokane, 172 Wn. App. 727, 741, 291 P.3d 930 (2013). And, the facts and inferences must be viewed in the light most favorable to Emerald Heights. Id. Contrary testimony does not warrant reversal. Id.
10 No. 80999-7-I/11
would have 70 or more large windows facing the neighborhood. Because the
building would be operational “24 hours a day and 7 days a week,” the HOA argues
that the light from these windows will affect residents and passersby. But, the
windows that face 176th Ave NE are a mix of administrative and residential units.
Nothing in the record suggests that all the occupants of residential units will be up
all night, or that residents who are awake will not use blinds or curtains to filter
light. Some nonresidential areas will also have occupancy sensors to
automatically turn the lights off when the room is unoccupied.
In support of its argument, the HOA offered the testimony of a lay witness
who prepared a computer-generated design of what he anticipated the lights would
look like in the evening. The hearing examiner considered this testimony. The
hearing examiner specifically concluded that it was not persuaded that the
prepared exhibits were accurate. We must accept that assessment. See Families
of Manito v. City of Spokane, 172 Wn. App. 727, 741, 291 P.3d 930 (2013)
(reviewing court must accept hearing examiner’s assessments of weight and
credibility). The hearing examiner also considered that the building would have no
exterior light fixtures. And, whatever light that was generated from the interior
would be filtered through the vegetated buffer included in the proposal, as well as
vegetation on the Abbey Road side of the street. The hearing examiner found that
the light impacts would not be significant.
11 No. 80999-7-I/12
D. Precedent for Future Development
The HOA argues that if this project is approved, it will set a precedent for
future development on the campus. It is correct that whether a proposal may serve
as a precedent for future development is a valid concern in the issuance of a DNS.
WAC 197-11-330(3)(e)(iv). But, it is unclear whether additional development could
take place on the campus. Detention ponds impede development to the north, and
unbuildable slopes impede development to the west. Emerald Heights sought an
R-6 rezone in order to facilitate future development.
The hearing examiner appropriately considered the potential adverse
environmental impacts and evidence for and against the issuance of a DNS. But,
“on the evidence submitted” she was “not persuaded that being able to see
multifamily residential buildings through a vegetated buffer constitutes significant
aesthetic impact . . . [c]onsidering the record as a whole.” The HOA disagrees with
this finding. But, a difference of opinion does not make the hearing examiner’s
decision wrong. The HOA bears the burden of proving that the hearing examiner’s
decision was clear error. See Cingular Wireless, 131 Wn. App. at 767. It does not
meet that burden here.
We reverse the superior court and affirm the hearing examiner’s decision
on the City’s decision to issue a DNS on the project.
II. SPE and CUP
Emerald Heights asks this court to affirm the hearing examiner’s approval
of the CUP and SPE. The HOA argues we should find the hearing examiner erred.
12 No. 80999-7-I/13
Redmond Zoning Code (RZC) art. VI, § 21.76.070 provides criteria that
apply to all land use permits. It imposes a requirement of consistency between the
proposed project and applicable regulations and the City’s Comprehensive Plan
(RCP). Id. Additional requirements for a retirement residence are outlined in RZC
art. I, § 21.08.370(C)(3)(b).
The HOA makes five primary arguments against the hearing examiner’s
determination. First, the hearing examiner improperly disregarded community
opposition to the project. Second, the proposal is inconsistent with the RCP. Third,
the proposal is not compatible with the area. Fourth, the proposal is inconsistent
with the City’s design standards. Last, the proposal does not meet specific
requirements for retirement communities.
We review the hearing examiner’s application of law to the facts in this
context under the clearly erroneous standard. RCW 36.70C.130(1)(d); Cingular
Wireless, 131 Wn. App. at 768. When reviewing a permitting decision such as a
CUP, we recognize the broad discretion afforded to local decision makers in
determining whether to grant a particular application. Timberlake Christian
Fellowship v. King County, 114 Wn. App. 174, 181, 61 P.3d 332 (2002).
A. Community Opposition
First the HOA argues the hearing examiner improperly disregarded
community opposition to the project. It argues that the hearing examiner dismissed
13 No. 80999-7-I/14
public testimony as mere “community opposition” that “deserved no weight in
informing her decision.” It cites to the following finding of the hearing examiner:
Project opponents have made their strong feelings clearly understood, they want to continue to see the mature trees along 176th Avenue NE and, equally importantly, to continue not to see multistory retirement residence buildings from the same vantage[.] These types of opinions are not uncommon and are not surprising, no one enjoys losing a favorite view on neighboring property or on a road they frequently travel[.] Project opponents invested a great deal of time and energy to study zoning code requirements and the Comprehensive Plan, and to develop and fill the record with their own interpretations of whether the project complies with required development standards[.] However, as stated at the hearing, land use permits are not decided by popularity contest or by vote[.] While reasonable minds can differ on interpretations of code requirements, based on the record submitted, the undersigned is not persuaded by the code interpretations of project opponents [.] As detailed in the previous conclusions, the evidence as a whole shows compliance with all applicable standards[.] Washington courts have held that community displeasure alone cannot serve as the basis for denial of a permit[.] “While the opposition of the community may be given substantial weight, it cannot alone justify a local land use decision[.]” Based on the record submitted, the permits must be granted.
(Citations omitted) (quoting Sunderland Family Treatment Servs. v. City of Pasco,
127 Wn.2d 782, 797, 903 P.2d 986 (1995)).
The hearing examiner did not disregard the community opposition or
dismiss it as irrelevant. To the contrary, the hearing examiner recognized the
considerable effort that community members put into putting forth their own
reasonable interpretation of the code’s requirements. But, the hearing examiner
was not persuaded by those interpretations. The hearing examiner did not dismiss
the community opposition as “deserv[ing] no weight in informing her decision.”
Citing Sunderland, she concluded, consistent with case law, that such opposition
can be given substantial weight, but cannot alone justify a local land use decision.
14 No. 80999-7-I/15
We must defer to the hearing examiner’s assessments of weight and
credibility. The HOA has not met its burden of showing clear error in the hearing
examiner’s treatment of community opposition.
B. Compliance with Comprehensive Plan
The HOA argues next that the proposal does not comply with the RCP. The
hearing examiner is required to analyze a proposal’s compliance with the RCP
prior to approving a permit. RZC art. VI, § 21.76.070. The HOA agrees that the
hearing examiner’s analysis should be reviewed under the “clearly erroneous”
standard.
The HOA points first to expert analysis from architect Peter Steinbrueck. It
claims that Steinbrueck “demonstrated, via legal analysis, that the proposal was
inconsistent with at least fifteen policies in the [RCP] that were not mentioned in
the City’s Technical Report or the Hearing Examiner’s decision at all.”
The HOA argues that the hearing examiner erred by not addressing these
policies in her findings. It is true that the hearing examiner did not enter detailed
findings as to each portion of the RCP Steinbrueck referenced. But, the record
shows that hearing examiner considered Steinbrueck’s arguments. And, it shows
that she was not persuaded by Steinbrueck’s interpretations of the RCP. The
hearing examiner’s rejection of code interpretations by project opponents created
a sufficient record for appeal. The HOA’s argument that such detailed findings
were necessary is without merit.
15 No. 80999-7-I/16
The HOA next points to portions of the RCP that it argues are relevant to
the proposal. It argues first that the proposal is inconsistent with RCP policy for
the neighborhood of Education Hill (N-EH)-14: “Encourage a mix of housing types,
styles, and a range of choices, while maintaining the overall single-family character
of established neighborhoods in Education Hill.” The HOA concedes that the
proposal encourages a mix of housing types. But, it argues that the size and
contemporary modern style of the building fails to preserve the single family
character of the neighborhood. The hearing examiner was not persuaded by these
arguments, finding that the contemporary style was shared by other buildings in
the neighborhood. The record supports that finding. While Abbey Road and the
broader neighborhood is predominantly single family, there are other large
buildings in the neighborhood. And, Emerald Heights had been rezoned from its
original R-4 to R-6 to allow this type of residential building.
The HOA also argues the proposal is inconsistent with RCP N-EH-18 and
N-EH-19. These policies appear in the section of the plan dedicated to “Cottages
and Multiplex[es].” The RCP defines “cottage” as “[a] small detached dwelling unit,
not greater than 1,000 square feet in total floor area that is developed at a density
greater than the underlying zone.” RCP glossary at 5. It defines “multiplex” as “[a]
structure that is a two-unit, three-unit, or four-unit attached dwelling, and may also
be known as a duplex, triplex, or fourplex.” RCP glossary at 13. The proposed
assisted living building would be 44,149 square feet and would contain 54 units.
16 No. 80999-7-I/17
The proposal is not a cottage or a multiplex. This section of the RCP is
inapplicable.
The HOA has not met its burden of showing clear error in the hearing
examiner’s determination that the proposal was consistent with the referenced
Comprehensive Plan policies.
C. Compatibility with the Area
The HOA argues the proposal is not compatible with the rest of the area.
The hearing examiner is required to consider compatibility with neighborhood
character in the issuance of permits. RZC art. VI, 12.76.070(K)(4)(b). The RCP
defines “neighborhood character” as
[t]he various elements of a neighborhood that give it a distinct “personality.” Including but not limited to land uses (e.g., residential/commercial mix and population), urban design (e.g. bulk, scale, form), visual resources (e.g. public view corridors and vistas), historic resources (e.g. historic landmarks), natural features (e.g. streams and steep slopes), and physical features (e.g. streets and public places).
RCP glossary at 14. The RCP also describes the character of the Education Hill
neighborhood as “primarily residential.” RCP N-EH, neighborhood vision at 13-21.
A “conditional use . . . may be appropriate on a specific parcel of land within a
given zoning district . . . but [is] not appropriate on all parcels within the same
zoning district.” RZC art. VI, § 21.76.070(K)(1). The hearing examiner’s
determination of compatibility is a factual determination reviewed under the
substantial evidence standard. Timberlake, 114 Wn. App. at 186.
17 No. 80999-7-I/18
The HOA’s primary argument in this regard is that the height, scale, modern
design, and location are not compatible with the rest of the neighborhood. It is
essentially the same argument it advanced regarding RCP N-EH-14.
The neighborhood contains other large scale buildings, including a high
school, church, and other development on the Emerald Heights campus. And, the
hearing examiner found that the project had been modified in ways to reduce its
apparent size and has screening that exceeds code requirements. Those findings
are supported by substantial evidence. The HOA’s contention that the mere
presence of a large building is incompatible with the character of the neighborhood
is belied by the fact that other large “institutional” buildings already exist in the
neighborhood.
The hearing examiner also found that the project was compatible with
existing development because it has residential-style eaves and windows,
materials and colors selected to blend and merge with the surrounding
development, exceeded the minimum setback requirements for the majority of the
building, and steps were taken to reduce the apparent size of the building. The
HOA does not argue that these findings are not supported by substantial evidence,
it simply argues that they are not sufficient.
As to the modern design, it may be true that the design differs from the
traditional design of Abbey Road homes, but it is consistent with other buildings,
most notably the Trailside Building on the southern perimeter of the Emerald
Heights campus. The hearing examiner considered the architecture of the
18 No. 80999-7-I/19
Trailside Building, as well as the fact that its more contemporary design had
originally been incorporated at the request of the City. The contemporary style has
also been used in many new residential and multifamily designs elsewhere in the
neighborhood. The hearing examiner concluded based on these other
developments that a contemporary-style building was not “inherently incompatible”
with the rest of the neighborhood. That conclusion is supported by substantial
evidence.
The HOA has not met its burden of showing the hearing examiner’s
conclusion that the proposal was compatible with the area is not supported by
substantial evidence.
D. Design Standards
The HOA argues that the proposal does not meet the City’s design
standards. It again points primarily to Steinbrueck’s analysis. But, the DRB did its
own analysis and concluded that the proposal was compliant with design
standards. Steinbrueck expressly disagreed with that analysis. The hearing
examiner considered both, and was persuaded that the project complied with
applicable requirements.
A difference of opinion is not sufficient to demonstrate clear error of the
hearing examiner’s determination that the project complied with design standards.
E. Retirement Community Standards
The HOA argues that the proposal does not meet applicable standards for
a retirement community primarily because it has an institutional rather than
19 No. 80999-7-I/20
residential feel, as required by RZC art. I, § 21.08.370(C)(5)(a). But, again, the
argument primarily rests on the size of the building. The hearing examiner noted
the steps that Emerald Heights took to make the building appear more residential,
such as having residential-style eaves and windows. While the building may differ
in significant ways from the large single family homes in Abbey Road, it is
nevertheless residential in its design and purpose.
The HOA has not demonstrated clear error in the hearing examiner’s
determination that the building meets applicable retirement community standards.
III. Conclusion
The hearing examiner carefully considered the opposing positions of the
HOA and Emerald Heights. It was not persuaded by the HOA’s arguments. But,
its findings are supported by substantial evidence. The HOA may disagree with
this decision, but it has not met its burden of showing a clear error in the hearing
examiner’s decision. The superior court’s finding to the contrary was error.
We reverse.
WE CONCUR: