HomeMy WebLinkAboutJ_Modification_Justification_230831_v1
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com
Kenneth Katzaroff
Admitted in Washington and Oregon
D: 206-405-1985
C: 206-755-2011
KKatzaroff@SCHWABE.com
Julie Wilson-McNerney
August 30, 2023
VIA FTP UPLOAD
Jill Ding, jding@rentonwa.gov
Renton City Hall
1055 South Grady Way
Renton, WA 98057
RE: Utility Undergrounding Modification Request for Land Use File No. LUA21-
000452; Home Depot, 901 South Grady Way, Renton, WA
Our File No.: 103058-270011
Dear Ms. Ding:
Pursuant to Condition 34 of the City of Renton Hearing Examiner’s August 9, 2022 decision in
Land Use File No. LUA21-000452 and RMC 4-9-250.D, we submit this modification application
on behalf of Home Depot, U.S.A., Inc. (“Home Depot” or “Applicant”). In August 2022, the
Hearing Examiner approved Home Depot’s Site Plan and Street Modification application to
redevelop the former Sam’s Club structure located at 901 South Grady Way (the “Property”) into
a Home Depot (“Decision”). As a part of that Decision, the Hearing Examiner allowed Home
Depot and the City of Renton (“City”) to continue discussions regarding whether RMC 4-6-090
requires Home Depot to underground one span of power line each on two poles.
The Examiner ordered that if the parties could not agree on RMC 4-6-090’s applicability, Home
Depot was to state its position regarding the applicability of exceptions to RMC 4-6-090 in the
form of a modification request for staff approval and possible appeal to the Hearing Examiner.
The parties have not been able to agree on the applicability of RMC 4-6-090. This letter and its
attachments state Home Depot’s position that its project is satisfies the exemptions in RMC 4-6-
090.D and that the Code does not require Home Depot to underground the utilities at issue.
To comply with the Hearing Examiner’s order, we have prepared this filing in the form of a
modification application. Home Depot would like to note that where, as here, an exemption to
code requirements appears in the text of the municipal code, that exemption should apply on its
own without the need to file an application or to request a modification to the code. Home Depot
does not seek to modify the code. Instead, Home Depot seeks to have an existing portion of the
code apply to its Property. Home Depot now submits this Utility Undergrounding Modification 1
1 Although this letter and its enclosures refer to a modification request, Home Depot’s use of “modification” or
“modification request” and Home Depot’s styling of this submittal as a “modification request” in no way concedes
that a modification request is the proper way to apply a code exemption to its project.
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 2
request, stating its position that RMC 4-6-090.D.1.g and 1.i exempt Home Depot from the
requirement to underground power lines beneath South Grady Way.
PROJECT NARRATIVE
The Applicant is requesting approval of a Utility Undergrounding Modification request
associated with the redevelopment of the former Sam’s Club on 901 South Grady Way into a
Home Depot and the Hearing Examiner’s Decision in Land Use File No. LUA21-000452. Home
Depot requests that the City determine that RMC 4-6-090.D.1.g and 1.i exempt Home Depot
from the requirement to underground power lines beneath South Grady Way.
The Property is adjacent to two power poles that front South Grady Way southeast of the
intersection of Talbot Road South and South Grady Way. Puget Sound Energy (“PSE”) refers to
these poles as Pole 317562-166021 and Pole 317562-166023. See Figure 1.
Figure 1. Demolition Plan, showing power lines at issue marked as Demolition Note 10.
(Sheet D1.0, Demolition Plan, in Construction Permit Plan Set, approved by City in
October 2022).
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 3
Pole 317562-166021 contains an electrical feeder line 2 that transitions from an underground line
to an overhead line that runs in a single span across South Grady Way where it connects to Pole
317574-166020 near the northeast corner of South Grady Way and Talbot Road South. Pole
317562-166023 contains two electrical feeder lines that transition from underground to overhead
lines that run in a single span across South Grady Way where they connect to Pole 317576-
166023 near the northeast corner of South Grady Way and Talbot Road South. See Figure 2.
Both of these poles distribute power directly from PSE’s Talbot Hill Substation to customers in
Renton. PSE has indicated that these two poles are important to PSE’s main infrastructure and
provide most of the power to the City of Renton. See Exhibit A. PSE has indicated that
undergrounding of these power lines will require boring across South Grady Way and that
undergrounding will result in “major outages to commercial/residential facilities.” Id.
The Examiner’s Decision approved the following with respect to improvements on South Grady
Way:
the existing pavement width shall be retained and dedication shall be required
to accommodate the following minimum frontage improvements: 0.5 foot-wide
2 A feeder line carries power from substations to customers.
Figure 2. PSE system map for Poles 317562-166021 and 317562-166023.
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 4
curb, 8 foot-wide landscaped planter, 8-foot wide sidewalk, and 2 feet of clear
space at the back of sidewalk.
Decision at 13; Hearing Ex. 16 at 45.
RMC 4-6-090.C.2 states that
Existing overhead power and utility facilities abutting a development or
redevelopment site triggering street frontage improvements under RMC 4-6-
060 shall be required to be relocated underground, pursuant to the standards of
this Section.
Because street frontage improvements of the type contemplated in RMC 4-6-090 are part of the
Decision, the City has made clear that it will require Home Depot to underground distribution
power lines on Poles 317562-166021 and 317562-166023. Home Depot objects to this
requirement and believes valid exemptions to the undergrounding standards apply.
MODIFICATION JUSTIFICATION
The City’s Code states that “[e]xisting overhead power and utility facilities abutting a …
redevelopment site triggering street frontage improvements under RMC 4-6-060 shall be
required to be relocated underground.” RMC 4-6-090.C.2. However, the Code also provides an
applicable exemption to the undergrounding requirements for the “[r]eplacement of overhead
facilities for a distance of three (3) or fewer spans (four (4) poles) or five hundred feet (500’),
exclusive of replacements due to casualty damage.”3 RMC 4-6-090.D.1.g. The City has
requested that Home Depot underground a single span of electrical lines on two separate poles.
Specifically,
• a single span of an electric distribution line attached to Pole 317562-166021 that runs
across South Grady Way where it connects to Pole 317574-166020 near the northeast
corner of South Grady Way and Talbot Road South; and
• a single span of two electric distribution lines attached to Pole 317562-166023 that run
across South Grady Way where they connect to Pole 317576-166023 near the northeast
corner of South Grady Way and Talbot Road South.
In other words, the City is requesting Home Depot underground a single span of power lines—
one span of power lines on two separate poles. Because the City is requesting that Home Depot
underground overhead facilities for a distance of 3 or fewer spans, the exemption in RMC 4-6-
090.D.1.g applies. Therefore, the undergrounding of overhead wires is not required by the Code
for the redevelopment of the Property.
3 The plain language of the code does not support an interpretation that this exemption is triggered only in the case
of repair and maintenance of existing lines. The preposition “exclusive of” means “not taking into account.”
https://www.merriam-webster.com/dictionary/exclusive%20of. Therefore, replacement for casualty damage is not
covered by the scope of this exemption. The power lines at issue are not damaged.
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 5
Additionally, the Code also provides an exemption for “technological difficulty associated with
the particular facility.” RMC 4-6-090.1.i.i. This exemption should apply to the wires that cross
South Grady Way. PSE has identified that their system planning department will need to review
the design of the undergrounding and that the process will take 1-2 months to approve. The
undergrounding will require night work for the installation of vaults and conduit and will result
in major power outages to commercial and residential facilities. PSE has identified these poles as
providing most of the power to the City of Renton. Exhibit A. This level of technical difficulty
should qualify for the exemption in RMC 4-6-090.1.i.i.
The Code provides another exemption where “the cost of undergrounding such a facility
outweighs the general welfare consideration implicit in underground installation.” RMC 4-6-
090-1.i.ii. The City’s undergrounding requirements, which will likely require Home Depot to
incur costs of more than $1 million, is not roughly proportional to the redevelopment of the
Property. Home Depot has converted an existing building from one retail box store use to
another. The project has not included new construction nor greenfield development. The cost to
underground compared to the scope of the redevelopment raises Constitutional concerns. To
satisfy the Fifth Amendment, the government must establish that its proposed condition is
roughly proportional to the impact of the proposed development. Dolan v. City of Tigard, 512
U.S. 374, 391 (1994). This requires that “some sort of individualized determination that the
required [condition] is related both in nature and extent to the impact of the proposed
development.” Id. at 391. Here, the City has stated that Home Depot must underground wires
that supply most of the power to the City and that are one of the series of lines that step down the
voltage electricity from PSE’s Talbot Hill Substation to a voltage that can be distributed to
customers solely because of curb and sidewalk improvements. The City has not required Home
Depot to widen South Grady Way, nor has the City required Home Depot to engage in major
ground disturbing activities within the travelled lanes of Grady. Yet, the City has required Home
Depot to bore underneath a 6-lane road to underground power lines. The City’s undergrounding
requirements do not comport with the “rough proportionality” standard set forth in Tigard. As
discussed below, the disruption caused to drivers on South Grady Way, the major power outages
expected, and the difficulty associated with repairing underground electrical lines that supply
most of the City’s power outweigh the public benefits of undergrounding one span of electrical
lines.
The City may grant this Utility Undergrounding Modification pursuant to RMC 4-9-250.D.2
because (i) the intent and purpose of the governing land use designation of the Comprehensive
Plan is met, (ii) the modification is in conformity with the intent and purpose of the Code, and
(iii) the cost to underground compared to the length of wire to be replaced and the scope of the
redevelopment makes application of the strict letter of the Code impractical.
The Utility Undergrounding Modification is consistent with the intent and purpose of the City’s
Comprehensive Plan. The City’s Comprehensive Plan states that it is the City’s goal to promote
the availability of adequate and efficient electric service. Utilities Element, Goal U-O. The plan
also states as policy that “Non-City utility systems [such as PSE’s] should be constructed in a
manner that minimizes negative impacts to existing development and should not interfere with
operation of City utilities. City development regulations should otherwise not impair the ability
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 6
of utility providers to adequately serve customers.” Utilities Element, Policy U-7. Requiring
undergrounding in this instance will result in negative impacts to existing development and
impair PSE’s ability to adequately serve customers. Because of the importance of the power
poles and power lines at issue, PSE anticipates that major power outages to commercial and
residential facilities will take place. Additionally, because the power lines supply most of the
power to the City, undergrounding would make any needed repairs more difficult because South
Grady Way would need to be excavated to reach the lines. Allowing the power lines to remain
overhead, is consistent with the plans and goals of the Utilities Element of the City’s
Comprehensive Plan.
The Utility Undergrounding Modification is also consistent with the intent and purpose of the
Code. The Code includes the very exemptions that apply to this project, RMC 4-6-090.D.1.g and
1.i. Therefore, the Code intends to exclude situations like ours from the undergrounding
requirement. While the overall purpose of undergrounding is to ensure the health, safety, and
welfare of residents of the community, the City has required undergrounding in only two
instances: when new utility lines are being installed and when street improvements require that
traveling lanes be disturbed during redevelopment. RMC 4-6-090.A; RMC 4-6-090-C.1-2. In
structuring the Code this way, the City has made a value determination that while
undergrounding is important, it is not important enough to underground all utility lines unless
street improvements are being made and unless four or more spans of overhead utility lines are
being replaced. Not requiring undergrounding for three or fewer spans is consistent with the
explicit language of the Code and its intent and purpose.
As discussed above, the cost to underground compared to the length of the wire to be replaced
and the scope of the redevelopment makes undergrounding impracticable. The City’s
undergrounding requirements will likely require Home Depot to incur costs of more than $1
million when Home Depot’s project merely converted an existing building from one big box
retail use to another. Combined with the disruptions to users of South Grady Way and to PSE’s
commercial and residential customers, undergrounding one span of power lines in two locations
over South Grady Way is not practical. Allowing the power lines to remain aboveground will not
have substantial adverse impacts to other properties as this would maintain the existing
condition.
The Code does not require undergrounding of the power lines at issue because three separate
exemptions from this requirement apply: the lines at issue are fewer than three spans, there is
technological difficulty associated with these particular poles, and the cost of undergrounding
outweighs the public benefits of doing so and is not proportionate to the nature and impacts of
the project. The modification to the City Code is justified and required for this situation.
CONTENTS OF SUBMITTAL
Pursuant to the City’s Modification Submittal Requirements under RMC 4-9-250, Home Depot
is providing the following documents in support of its application:
• Waiver Form
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 7
• Land Use Permit Master Application Form
• Neighborhood Detail Map
• Site Plan
• Architectural Elevations
• Floor Plans
• Utilities Plan
• Geotechnical Report, including critical areas information
• Wetland Assessment, including information on critical areas and streams
• Drainage Report, including flood hazard data
Home Depot has contacted the City to pay the $290 fee to modify code requirements per the
City’s 2023-2024 fee schedule.
Home Depot looks forward to working with the City to achieve the shared goals of the
redevelopment of the Property.
Sincerely,
SCHWABE, WILLIAMSON & WYATT, P.C.
Kenneth Katzaroff
Julie Wilson-McNerney
Enclosures
cc: Nicholas Harper
Suzanne Russo
Dan Zoldak
PDX\103058\270011\JWMN\37333016.1
Jill Ding, jding@rentonwa.gov
August 30, 2023
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 8
Exhibit A
2
Thank you for getting back to me. Yes, tomorrow at 12:30 will be great.
Thank you again,
Ashley
Ashley Nulick
Due Diligence Coordinator
Lars Andersen & Associates, Inc.
CASp – LEED Accredited – QSD/QSP
28827 N 91st Ave
Peoria, AZ 85383
(559) 978‐0845 Cell
(623) 250‐3810 Ext 102 Office
www.LarsAndersen.com
From: Chau, Jenny <Jenny.Chau@pse.com>
Sent: Monday, June 27, 2022 9:40 AM
To: Ashley Nulick <ANulick@larsandersen.com>
Cc: Dan Zoldak <DZoldak@larsandersen.com>
Subject: RE: Home Depot Renton ‐ Underground Meeting Request
Hello Ashley,
I have availability at about 12:30 on 6/28, would that work?
Thank you,
Jenny Chau
Project Coordinator – South King Electric
Customer & System Projects, NCC – PSE
Work: 253‐208‐9480
Desk: 253‐234‐6403
jenny.chau@pse.com
From: Ashley Nulick <ANulick@larsandersen.com>
Sent: Monday, June 27, 2022 8:47 AM
To: Chau, Jenny <Jenny.Chau@pse.com>
Cc: Dan Zoldak <DZoldak@larsandersen.com>
Subject: RE: Home Depot Renton ‐ Underground Meeting Request
CAUTION ‐ EXTERNAL EMAIL
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Good Morning Jenny,
3
Hope you had a great weekend. I am reaching out in regards to the Home Depot Renton Project. Dan Zoldak of our firm
will be at the site in Renton tomorrow and we were wondering If you would be available to meet him at the site to
review the project. Please let me know if you have availability and if you have any questions.
Thank you,
Ashley
Ashley Nulick
Due Diligence Coordinator
Lars Andersen & Associates, Inc.
CASp – LEED Accredited – QSD/QSP
28827 N 91st Ave
Peoria, AZ 85383
(559) 978‐0845 Cell
(623) 250‐3810 Ext 102 Office
www.LarsAndersen.com
From: Ashley Nulick <ANulick@larsandersen.com>
Sent: Friday, June 24, 2022 2:59 PM
To: jenny.chau@pse.com
Cc: Dan Zoldak <DZoldak@larsandersen.com>
Subject: Home Depot Renton ‐ Underground Meeting Request
Hi Jenny,
Hope all is well. I am reaching out in regards to the email I received that you will be our Project Manager. We would like
to set up a call with you early next week to discuss the project. Please let me know what your availability is for early next
week.
In advance, thank you for your time and assistance on this project.
Sincerely,
Ashley
Ashley Nulick
Due Diligence Coordinator
Lars Andersen & Associates, Inc.
CASp – LEED Accredited – QSD/QSP
28827 N 91st Ave
Peoria, AZ 85383
(559) 978‐0845 Cell
(623) 250‐3810 Ext 102 Office
www.LarsAndersen.com