CORRECTION: The Feb. 15 version of this story incorrectly reported that the 1986 La Conner Town Council took legislative action in passing an ordinance and later made a legislative amendment to the Town's Comprehensive Plan in paragraph 4. The story below has been revised with the correction that the legislative action the council took was “passing a motion.” Posted Feb. 17.

The Center Street condominium project proposed by Brandon and Katie Atkinson is closer to construction. Last Wednesday Town of La Conner Hearing Examiner David Lowell denied residents Debbie Aldrich and Linda Talman’s appeal to block the project’s conditional use permit. Lowell upheld the September administrative determination issued by Town planner Michael Davolio. That approved the Atkinson’s proposal for a three story, 21 unit building at Center and Fourth streets. Lowell put the final stake in the almost yearlong determined, expensive and heartfelt efforts of dozens of town residents to stop the project.

Aldrich and Talman sought enforcement of a 1986 contract rezone. The Atkinsons argued that they, and the town’s government, did not know of its existence until April, after the property was purchased and the March challenge to the CUP had been heard. Lowell ruled for the Atkinsons with a brief explanation: that the 1986 contract rezone was not filed with the Skagit County Auditor, as its language required. Lowell determined that was a condition precedent, creating a clause that needed to be carried out for the contract to be valid. “Since the Contract Rezone was not recorded it discharges the duty of the owner to comply with the regulations of the Historical Preservation District,” Lowell ruled.

The contract rezone bound the town to restrict future owners of the property to those guidelines. No, wrote Lowell, noting the owners did not have “record notice of the Contract Rezone before purchasing the site” and invested in its development and submitted permits authorizing development. Lowell noted that courts have ruled unrecorded dedications and liens are unenforceable and not binding. He also recognized that a contract rezone creates a “different types of documents/encumbrances” but ruled the property purchaser’s need “able to rely on record title are substantially similar.”

Lowell however, did not reference in this decision, nor did planner Davolio in his administrative decision, the analysis that the contract rezone is valid because the 1986 town council took legislative action in passing a motion that rezoned the property to “commercial use,” amended the town’s comprehensive plan and placed the “same restraints on property as in Historic Preservation District.” The zoning was later changed by ordinance to commercial but the change restricting future development was not included. Lowell and Davolio do not reference the case made for Aldrich and Talman by their lawyer, David Bricklin.

Their October appeal points out that “although the private agreement regarding the Contract Rezone was not recorded and may not be enforceable against subsequent purchasers of the property who lacked notice of the agreement, the legislative amendment of the Comp Plan and Comp Plan Map continues in full force and effect as do any other legislative amendments to the Town’s Comp Plan and Uniform Development Code.”

Bricklin pointed out the CUP applied for is, “subject to all of the zoning laws, including the contract rezone, in effect when the Town makes its decision on the application.”

His analysis is that property owners do not need to have notice of zoning laws to be subject to them.

Lowell last week made no mention of the exhibits and documents in the 52 page appeal. Lowell’s decision, in its entirety, reads: “Based on the findings of fact and conclusion of law contained herein it is the decision of the Hearing Examiner to deny the appeal and affirm the Town’s Administrative Determination.”

Talman’s untypically brief response was “I was very disappointed in the hearing examiner response. He didn’t respond to any of the points in our appeal. I have no idea why that response took so long, given that there wasn’t much to it.”

Aldrich wrote: “I would like to add a thank you to the many people who wrote letters, went to meetings and hearings and helped with financing our efforts. We will be talking to them and asking for advice.”

The town’s municipal code provides for an appeal to Skagit County Superior Court within 21 days by any party of record. A favorable ruling by that Court would return the case to Lowell to rule on issues remanded by the Court. The residents’ group is considering that option, Residents have to weigh the filing and legal costs and the time of this step.

More than one lawyer has pointed out that a hearing examiner works for a municipality and works to protect the municipality. Others have suggested that Town of La Conner elected officials and staff are more concerned about a lawsuit from Atkinson, the developer, for an adverse ruling.

Atkinson did not reply to a request for comment. Mayor Ramon Hayes responded: “The questions being answered are legal ones. As such, the town’s position is neutral and our only desire is to ensure the law is followed. It is clear that significant deficiencies occurred in the 1980s. That is why, for the sake of the entire community, the town engaged a law firm that specializes in municipal law to render an unbiased opinion based on a comprehensive review of the file.”

Bricklin wrote in his appeal “The documentation available on the town website is enormous (a thousand pages or more).”

There is a page on the Town website dedicated to the 306 Center Street Project. Search “Center Street” to find it.

Search the Weekly News website for articles dating to late 2021.