Emerald Heights Expansion Approved After Four-Year Battle With Neighborhood HOA

 

Emerald Heights.com

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. The State Appeals Court Division 1 reversed the Superior Court decision on May/24/2021 (and the Emerald Heights project is for all matters approved.)

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 No. 80999-7-I/3 3 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. 

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. 

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. 

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. 

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 (favoring the HOA) to the contrary was error. We reverse. 

-- Court of Appeals Division 1 applicants:  C.O.R., Eastside Retirement Association, Emerald Heights

The above are all excerpts from a 20 page Washington Court of Appeals Division 1 case document No. 80999-7-1.  Special thanks to Jason Antonelli for his report and research on the courts' actions.