The owner of 18.8 acres, zoned to permit 12 residences per acre as a conditional use, sought to develop 11.75 units per acres and submitted a plan showing required vegetated perimeter buffers, parks, and trails. The plan showed 5.66 acres of open space; the code required 5.58 acres (30 percent). A hearing officer granted planned residential development and conditional use approvals, but held that the perimeter setback area could not be included in calculation of open space. The trial court affirmed issuance of the approvals, but held that the setbacks could be included in open space.
The appeals court affirmed, first holding that the approval did not constitute improper rezoning. The zoning code and the comprehensive plan specifically authorize the approved density and the developer’s plans embody the purposes stated in the plan. The calculation of open space may not include “required yards for buildings or structures,” but required perimeter setbacks are not part of individual “lots” and are not “yards.”
City of Gig Harbor v. N. Pacific Design, Inc., 2009 WL 522687, 149 Wash. App. 159, 201 P 3d 1096 (3/3/2009)
The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=368111MAJ
This abstract appears in the May 2009 issue of Planning and Environmental Law published by the American Planning Association. See, http://www.planning.org/PEL
