The city of Oak Harbor and a Whidbey Island environmental group are each asking for a summary judgment in a lawsuit over the city council’s decision to change a city code that had required a vote of the people before any city-owed park land can be sold or transferred to a private entity.

A judge in Island County Superior Court is set to hear arguments in the motions for summary judgment — a judicial decision without a trial — on March 10.

Last fall, Whidbey Environmental Action Network, known as WEAN, filed a complaint for declaratory judgment and constitutional writ of certiorari challenging an amendment to a city code.

The council adopted the ordinance in a 6-1 vote on Aug. 13, with only Councilmember Bryan Stucky voting against it. It amends a 1997 code by allowing that a public vote isn’t required if the council decides to swap park land as part of a development agreement where the swapped land is of greater or equal market value or if a developer agrees to make improvements that are worth 150% of the market value of the land granted by the city to the developer.

WEAN argues that the council violated the state code of ethics for municipal officers because it makes an exception for — thereby granting a special privilege to — a specific hotel developer who wants to build a Hilton in downtown Oak Harbor. The developer wants part of adjacent city-owned Hal Ramaley Park as part of the development.

In addition, WEAN claims that that city should have gone through the State Environmental Policy Act, or SEPA, review before adopting the ordinance. WEAN claims that the amendment is a nonproject change in regulation that will lead to changes in the environment.

On Jan. 27, the city filed a motion for summary judgment. The motion argues that the change doesn’t violate the state ethics code because it doesn’t bestow a special privilege to just one developer since it will apply to all people equally, and it gives the council greater flexibility to make decisions. The motion, written by attorney Robert Heinemann, claims that the ordinance was not subject to a SEPA review because it was not an “action,” as defined in the state administrative code; that it would be exempt because it has no possible environmental impact; and that there was no land-use application.

The city’s motion explained that Sound Development, based in Mount Vernon, initially submitted a pre-application review to the city for a proposed development on the property next to Hal Ramaley Park. The proposal was for a building with a brewpub, residential units and a parking lot. City staff told the developer that the proposal was inconsistent with the development code.

“City Planner Ray Lindenburg explained that Sound Development was encouraged to return with a project that was ‘more impactful’ for the downtown core, in terms of urban density, pedestrian activity and business activity,” the motion states.

Sound Development responded with a new pre-application for a four-story, 107-room Home2 Suites by Hilton Hotel with convention meeting space.

“City planning staff believe successful development of a four-story 107-room hotel in downtown Oak Harbor would bring more visitors to the city, and the internationally recognized Hilton Hotels’ investment in the city could encourage additional downtown investment,” the city’s motion states. “A disadvantage of the Hilton Hotel as proposed is that it does not quite fit on the private parcel(s) available on this pie-shaped city block.”

As a result, the developer’s proposal included the use of a portion of Hal Ramaley Park for the project. In exchange, Sound Development proposed to pay for improvements to the remaining portion of the park, the motion states.

But while drafting a potential agreement, the city attorney found that city code required a citizen vote before the council could approve a land swamp or exchange of park land. The 1997 code was adopted by the council to protect the waterfront Flintstone Park from becoming part of a deal with a private developer.

Last year, the council held five public meetings to discuss proposals to change the code. The council received a good deal of public input, most of which was in opposition to changing the code.

In response to the city’s motion for summary judgment, WEAN asked the judge to deny the city’s request and instead grant summary judgment on its behalf. WEAN’s motion includes declarations from Oak Harbor residents Kathy Chalfant, Christina Elliot and Kyle and Laura Renninger, who describe the importance of Hal Ramaley Park to the citizens. It contains, for example, a permaculture food forest that was one of the first of its kind in the nation.

WEAN’s motion states that the hotel developer’s plan is to pave the food forest to put up a parking lot.

The document states that Lindenburg and the developer exchanged emails with options for moving forward. Ultimately, Lindenburg informed the developer that the city attorney would work on “a draft ordinance to revise the code to not require a municipal election to dispose of/sell park properties.”

WEAN argues that the amendment was passed solely for the benefit of one developer. WEAN claims this represents a clear violation of RCW 42.23.070(1), which “prohibits any municipal officer from using his or her position to secure special privileges or exemptions for himself, herself, ‘or others,’ including ‘others’ who are hotel developers desiring to pave over public parklands for private commercial gain.”