A Washington state appellate court panel here has ruled that the Eastern Washington Growth Management Hearings Board acted properly when it invalidated ordinances adopted by the city of Airway Heights that would have allowed more multifamily housing near Fairchild Air Force Base.
The unanimous decision by the three Division III Court of Appeals judges, pertaining specifically to 29 acres of land in east Airway Heights south of U.S. 2, reversed a ruling in the city’s favor by Spokane County Superior Court Judge Michael P. Price.
The appeals court affirmed the Hearings Board’s earlier conclusion that the Airway Heights ordinances violated the state’s Growth Management Act by allowing development that’s incompatible with Fairchild Air Force Base’s current and future missions.
It rejected two other grounds on which the Hearings Board based its decision to invalidate the challenged ordinances, but agreeing on just one of the three grounds cited by the Hearings Board was all that was required to uphold that board’s decision.
Incompatible residential and commercial development around a military installation can jeopardize the installation’s mission and, in turn, can jeopardize the economies of nearby communities, the appeals court noted in opening remarks in its published 38-page opinion authored by Judge Robert E. Lawrence-Berrey. The state’s Growth Management Act addresses that problem, it also noted, by prohibiting “development in the vicinity of a military installation that is incompatible with the installation’s ability to carry out its mission.”
Todd Mielke, CEO of Greater Spokane Incorporated, the combined chamber of commerce and economic development council here, couldn’t be reached immediately for comment. However, GSI has been aggressive about opposing development activity that might conflict with the base or give military officials added reasons to consider shutting down the base, and it opposed the potential development of the Airway Heights site, as envisioned.
GSI noted in information presented to the court that Fairchild and nearby Spokane International Airport are critical assets for the economic growth of this region, and that Fairchild is the region’s largest employer, with an economic impact here approaching $1 billion, the appellate court opinion said.
Attorneys for the city of Airway Heights and property owners disagreed, though, with the assertion that the development of the property, situated between or adjacent to two previously developed apartment complexes, would have any negative impact on the base or on Spokane International Airport.
Attorney Stanley M. Schwartz, representing the city of Airway Heights, says he‘s disappointed with the ruling, pertaining to what amounts to be “a little pocket for in-fill development.”
He planned to discuss the ruling and its implications with the Airway Heights City Council at its meeting earlier this week.
Also frustrated with the ruling was Margaret Archer, a Tacoma attorney representing her mother, Kitty Archer, who owns and lives in a family home on 18 of the 29 acres that was the subject of the litigation. Archer says the land represents a large part of her mother’s retirement, but rezoning has devalued the property, making it more difficult to sell.
“What I find frustrating about the whole thing is, first of all, the base didn’t appeal. All these arguments were made by parties that are not the base,” she says, adding, “Nobody has conducted a study that says limited in-fill development will have any impact on the base, much less a significant one.”
In its decision, the appeals court held that the Growth Management Hearings Board “did not err in balancing the deference owed to the city’s ordinances against the evidentiary weight it gave to the opinions of persons and agencies with expertise and with the nonbinding recommendations made in the Fairchild Air Force Base Joint Land Use Study (JLUS).”
Funded by the Department of Defense, the JLUS was developed to guide nearby jurisdictions in implementing land-use regulations that would help protect and preserve the base. It prohibits certain developments that could encroach upon the base and restrict the base’s flying and training missions by limiting air space. Both the Spokane County Commissioners and the Spokane City Council voted unanimously to implement the JLUS.
Three years ago, to implement recommendations of the JLUS, the county commissioners adopted a new chapter of the Spokane County Zoning Code titled the Fairchild Air Force Base Overlay Zone. The new overlay zone established accident potential zones, height restrictions, noise impact areas, and military influence areas.
It appears unclear what impact, if any, the appeals court decision will have on other possible efforts by the city of Airway Heights to allow new multifamily housing developments in the portion of the city that lies south of U.S. 2.
The Airway Heights City Council, in response to a housing deficiency, adopted the challenged ordinances in August 2013. The ordinances amended the city’s zoning regulations and maps, redesignating the previously mentioned 29 acres of commercial property as multifamily residential and authorized the city’s hearing examiner to conditionally approve such development there.
The conditional approval was subject to an evaluation to demonstrate a community need for residential use and a noise study to demonstrate that a certain average sound level was not exceeded over a prescribed period of time. Among other conditions, it also limited density to no more than 10 to 20 living units per acre and required the owner to sign an aviation easement waiving liability for noise.
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