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6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY
7 STATE OF WASHINGTON,
8 Plaintiff , )
9 v.
10 JAMES L. COLT, et al . ,NO. 80-2-09783-1
11 Defendants . ) THIRD PARTY COMPLAINT OF
JAMES L. COLT, AMERICAN
12 MEMORIAL SERVICES , INC. AND
JAMES L. COLT, AMERICAN MEMORIAL ) MT. OLIVET CEMETERY COMPANY,
13 SERVICES , INC. and MT. OLIVET INC.
CEMETERY COMPANY , INC. ,
14
Third Party Plaintiffs , )
15
v .
16
KENT-HIGHLANDS , INC. , a
17 Washington corporation;
ENVIRONMENTAL RESEARCH AND
18 DEVELOPMENT CORPORATION, a
Washington corporation ; MONTEREY )
19 TERRACE ASSOCIATES , a Limited
20
Partnership,
Third Party Defendants . )
21
22 COMES NOW defendants and third party plaintiffs James L. Colt,
23
American Memorial Services , Inc . and Mt. Olivet Cemetery Company,
24
Inc . , and make the following third party claim against Kent-
25
Highlands , Inc . , Environmental Research and Development Corporation
26
and Monterey Terrace Associates :
27 I . PARTIES
28
1 . Third Party Plaintiffs . James L. Colt is a resident of
29
King County , Washington . American Memorial Services , Inc . is a
30
Washington corporation with its principal offices in Renton, King
31
County , Washington . American Memorial Services , Inc . is duly
32
Third Party Complaint - 1 THEODORE H.GATHE,P.S.
Attorney at Lav+
4111 East Madison Street
Seattle,Washington 98112
206/328.2204
i
1 licensed to do business in the State of Washington. Mt. Olivet
2 Cemetery Company, Inc . is a Washington corporation with its
3 principal offices in Renton, King County, Washington. Mt. Olivet
4 Cemetery Company, Inc . is duly licensed to do business in the State
5 of Washington.
6 2. Third Party Defendants . Kent-Highlands , Inc . , is a
7 Washington corporation with its principal offices in Renton, King
8 County, Washington. Environmental Research and Development
9 Corporation is a Washington corporation with its principal place of
10 business in Seattle, King County, Washington. Monterey Terrace
11 Associates is a Washington limited partnership doing business in
12 King County, Washington, whose general partner is Environmental
13 Research and Development Company, a Washington corporation.
14 II. CLAIM FOR RELIEF
15 3 . James L. Colt, American Memorial Services , Inc . and Mt.
16 Olivet Cemetery Company, Inc . are several of the defendants in an
17 action brought by the .State of Washington alleging, in part,
18 violations of the Washington State Consumer Protection Act . Para-
19 graph 8 of the Fifth Cause of Action of said lawsuit reads as
20 fellows :
21 48. In the regular course of business , defendants
James L. Colt, AMS, ODC, and Mt. Olivet have sold unde-
22 veloped cemetery property and mausoleum space and have
23
represented to consumers , directly and by implication,
that such properties would be developed or construction
24
commenced by a certain date . In truth and in fact, such
properties were not developed and construction was not
25 commenced by the dates stated or within a reasonable
time thereafter.
26
49. The conduct described above constitutes unfair
and deceptive acts and practices and an unfair method of27competitioninviolationofRCW19.86 .020."
28
4. In approximately 1978, American Memorial Services (here-
29
inafter "AMS") entered into an agreement with Kent-Highlands , Inc .
30
wherein AMS granted an easement to Kent-Highlands across certain
31
32 Third Party Complaint - 2
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
1 property owned by. AMS and Mt. Olivet Cemetery Company, Inc. , in
2 exchange for an agreement to construct a road on the perimeter of
3 said cemetery property, which would in turn permit a filling opera-
4 tion and the eventual construction of a mausoleum, which had been
5 scheduled to be constructed on Mt. Olivet Cemetery property . There-
6 after, Kent-Highlands , Inc . conveyed said easement rights to
7 Environmental Research and Development Corporation and to Monterey
8 Terrace Associates , a Washington limited partnership, who were the
9 owners of property adjacent to Mt. Olivet Cemetery .
10 5 . Despite repeated demands , Kent-Highlands , Inc . and
11 Environmental Research and Development Corporation and Monterey
12 Terrace Associates have failed and/or refused to construct the
13 roadway described herein, which has directly resulted in the
14 inability of AMS and Mt. Olivet Cemetery to construct and complete
15 the New Dawn Mausoleum project.
16 6. Third party plaintiffs allege that the failure of third
17 party defendants to complete the roadway in accordance with the
18 terms of the parties agreement have directly resulted in the
19 bringing of the Fifth Cause of Action of the above-encaptioned
20 1pwsuit against third party plaintiffs , and that in the event
21 judgment is entered against third party plaintiffs named herein,
22 third party plaintiffs 'are entitled to contribution and/or indemni-
23 fication from third party defendants jointly and severally.
24 III. PRAYER FOR RELIEF
25 WHEREFORE, third party plaintiffs pray for relief as follows :
26
1 . In the event judgment is entered against third party
27
plaintiffs , then third party plaintiffs shall be awarded judgment
28 over and against third party defendants jointly and severally by
29
way of contribution and/or indemnification.
30
2. Third party plaintiffs be awarded attorney' s fees , costs
31
and disbursements incurred in defending this action.
32
Third Party Complaint 3 THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328.2204
1 3 . For such other and further relief as the court deems
2 appropriate in this action.
3 DATED this )L 77' day of ac4,-(.. 1983 .
4 THEODORE H. GATHE, P.S.
6 By l.e4
Theodore H Gathe
7 Attorney- for Third Party Plaintiffs
8 STATE OF WASHINGTON )
ss .
9 COUNTY OF KING
10 JAMES L. COLT,, being first duly sworn on oath, deposes and
11 says :
12 I am one of the third party plaintiffs in the above-
encaptioned matter ; I have read the foregoing Third Party Complaint
14 of James L. Colt, American Memorial Services , Inc . and Mt. Olivet
15 Cemetery Company, Inc . , know the contents thereof , and believe the
16 same to be true .
r17
18 Vidi..r1/rir
19
James L. Co t
20
SUBSCRIBED AND SWORN to be 'oreime this 2-7" day of
21 Z C i.._.198 . f
22 y/.7)Pt
23 NOTARY PUBLIC in d for the State
24
of Washington re ding at
25
26
27
28
29
30
31 .
32 Third Party Complaint - 4
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
ZENliat
2 Ig u ;;_ ''b ` F)AlS
3 L M IY 1 9 1983
4 q.1 !': :• D E'°T.
5
6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY
7 MT. OLIVET CEMETERY,
a Washington corporation,
NO.8
Appellant, )
9
vs. NOTICE OF APPEAL
10 Writ of Review)
CITY OF RENTON,
11
Appellee.
12
13
14 COMES NOW, the Appellant, MT. OLIVET CEMETERY, by and
15 through its attorney, WILLIAM F. BULCHIS, of BULCHIS & GARRISON,
16 and gives this Notice of Appeal of the above-entitled case to
17 the Superior Court of the State of Washington for King County.
18 Appellant, pursuant' to the revised and compiled ordinance
19 of the 'City of Renton, Section 4-3011 (B)5 respectfully seeks from
20 the above-captioned Court a review of the City of Renton ' s hearing
21 examiner ' s denial of the Appellant 's appeal' concerning the issue
22 as to whether Appellant was obligated to dedicate a roadway ease-
23 ment to the City of Renton.
24 The attorney for the City of Renton is believed to be
25 LAWRENCE J. WARREN, City Attorney, 100 South Second, Renton,
26 Washington, telephone number, 255-8678, the Attorney for the
27
BULCHIS & GARRISON
NOTICE OF APPEAL -1 ATTORNEYS AT JAW
AIRPORT PLAZA BUILDING.a404
19415 PACIFIC HWY.SO.
SEATTLE,WASHINGTON
98188
206)878-1890
206)292-9357
0
1 Appellant is WILLIAM F. BULCHIS, of BULCHIS & GARRISON, Suite 404 ,
2 Airport Plaza Building, 19415 Pacific Highway South, Seattle,
3 Washington 98188 , telephone number : 878-1890
4
y j
5 DATED this / T day of May, 1983 .
6
7
8SAL- 12TirCel
WILLIAM F. BULCHIS•
9 of BULCHIS & GARRISON
10
11
12
13
14
15
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BULCHIS & GARRISON
NOTICE OF APPEAL -2 ATTORNEYS AT I.AW
AIRPORT PLAZA BUILDING.4404
19415 PACIFIC HWY.SO.
SEATTLE,WASHINGTON
98188
12081 878.1890
OF R4,
OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
O
POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678
Z O
LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY
DAVID M. DEAN, ASSISTANT CITY ATTORNEY
o9.1 E
Q
MARK E. BARBE 3;j-T t $I Tn1;•• 2Y ATTORNEYFpSEPl
E5,-,s,:s nr1 _
ZANETTA L:r:fr iq) 4 Isgr Nr `li y WrT'' RrYEv
January 17, 1983 n< "`= '?'
F. i< i.? ,
Mr. Roger Blaylock,
i
JAi 18 198.3
Zoning Administrator
City of Renton
Municipal Bldg.
Renton, WA 98055
Re: Mt. Olivet Cemetery, Inc.
Dear Roger:
I thought that you should be aware that the trial in the
declaratory judgment action brought by Mt. Olivet against
the City of Renton has been continued to the date of
April 25 , 1983. The case will undoubtedly not go to trial
since the subject zoning on the Eradco parcel lapses according
to its terms on February 1, 1983. However, I will keep you
informed as to whether or not the case will go to trial.
I wanted to inform you that your decision as to whether or
not the zoning has truly lapsed on February 1st should be
made without regard to this lawsuit. The law presumes that
our ordinance is valid until a court tell us that it is invalid.
There will be no such decision as .of the time that you need to
make your decision about the reversion of the zoning. I would
also suggest that after you have made your decision, that the
matter be referred to the City Council for adoption of a
formal ordinance. Since the matter has come about because
of restrictive covenants voluntarily signed by the owners of
the property, I do not think there is a necessity for a public
hearing.
If you have any questions about this , please let me know. If
you have any problems at all with the timing I would suggest
you give me a call sometime before February 1st and inform me.
This letter is a confidential attorney-client correspondence
and need not be put in the zoning file.
V y truly , •• rs ,
Lawrence Jt./Warren
LJW: ds
cc : Messrs Kautaimy Clemens , Trimm
cc: Mayor Shinpoch
OF I?
y THE CITY OF RENTON0MUNICIPALBUILDING200MILLAVE. SO. RENTON, WASH. 98055
o BARBARA Y. SHINPOCH, MAYOR • LAND USE HEARING EXAMINER
AO P FRED J. KAUFMAN, 235-25939
TF0 SEP100
n City of Redd 711May5, 1983 I I !! Building&Zoning Dept.
Mr. James Colt
P. O. Box 547
MAY 9 198S
Renton, WA 98057
Re: AAD-027-63: Dismissal
Dear Mr. Colt:
After a thorough review of the files in this matter, as well as the additional input at thePublicHearingonMay3, 1983, I find that this office had no choice but to dismiss theappealasimprovidentlygranted.
The record demonstrates that any administrative determination that might have grantedthisofficejurisdictionoccurredmorethan14dayspriortothefilingoftheappeal. The
appeal was not timely perfected, and therefore this office had no proper jurisdiction in the
matter and no ability to hear the appeal.
Very truly yours,
Fred J. Kaufman
Land Use Hearing Examiner
FJK:se
cc: Mayor
City Attorney
City Clerk
Building & Zonings
William Bulchis, Attorney
CITY OF RENTON
LAND USE HEARING EXAMINER
PUBLIC HEARING
MAY 3, 1983
AGENDA
COMMENCING AT 9:00 A.M.:
COUNCIL CHAMBERS, SECOND FLOOR, RENTON MUNICIPAL BUILDING
The applications listed are in order of application number only and not necessarily the
order in which they will be heard. Items will be called for hearing at the discretion of the
Hearing Examiner.
COLT/MT. OLIVET APPEAL
Appeal by James Colt, President, Mt. Olivet Cemetery Co., Inc., file
AAD-027-83, of an enforcement decision of the Building and Zoning
Director to require the dedication of the sixty (60) foot right-of-way along
the easterly boundary of Mt. Olivet Cemetery as required under special
permit, file SP-047-80, prior renewal of annual grading license; located
north and east of the existing platted cemetery, east of N.E. 3rd Street, in
the vicinity of 100 Blaine Avenue N.E. and the powerline right-of-way.
Ug f%t.
1
2
3 MAY 3 1983
4
5 IN RE THE APPEAL OF MT. OLIVET )
AAD - 026-83 BRIEF OF CITY DISCUSSING
6 LEGAL ISSUES
7
8
FACTUAL SUMMARY
9
A synopsis of the facts in this appeal has been prepared
10
and tendered to the Examiner separately in a document entitled
11
Memorandum in Support of City' s Motion to Dismiss Appeal .
12
References to documents in this brief will be to the numbered
13
exhibits in that memorandum .
14
This appeal was started by letter of Mt . Olivet Cemetary
15
Co . , Inc . , dated March 28, 1983 ( Exhibit 27) . That letter
16
consists of an extensive argument , rather than a statement of
17
an appeal and then includes , in part , the followinng statement
18
in its last sentence :
19
Your clarification , based on the record , or the
20 granting of a public hearing based on our appeal of
this new administrative decision is required to
21 resolve this matter . . ."
22 Therefore , this proceeding is an attempt to clarify Examiner ' s
23 decision of March 13, 1981 but also serves as an appeal .
24 Unfortunately , the letter does not address what administrative
25 decision is being appealed and when that administrative
26 decision was made . This brief will attempt to explore the
27 factual record and the law to determine what administrative
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 1 100
ATTORNEYS AT LAW
SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 decision is being appealed and whether the Examiner now has
2 jurisdiction to consider this appeal .
3 ISSUES
4 1 . Does the Examiner have jurisdiction to clarify his
5 decision of March 13, 1981?
6 2 . If this appeal is truly an appeal from an
7 administrative decision , when was the administrative decision
8 made and was the appeal timely filed?
9 3 . What is Appellant' s burden of proof in this appeal ,
10 and has Appellant met its burden?
11 4 . Is the refusal by an administrative officer to grant
12 a permit until all of the conditions for that permit have been
13 met an appealable administrative decision?
14
15 DOES THE EXAMINER HAVE JURISDICTION TO CLARIFY HIS DECISION OF
16 MARCH 13 , 1981 ?
17
18 As previously mentioned Appellant , in its appeal letter ,
19 ( Exhibit 27) , states that it wishes a "clarification based on
20 the record" . Appellant does not state what it wishes
21 clarified but a review of the letter shows extensive
22 discussions and quotations from the Hearing Examiner ' s
23 decision of March 13, 1981 . Since the Appellant seeks a
24 clarification from the Examiner and the Examiner ' s last
25 official decision on this file is the Examiner' s decision cf
26 March 13, 1981 it may be presumed that this is the decision
27 the Appellant wishes clarified . Such a request is not timely
28 and should be rejected by the Examiner .
BRIEF OF CITY DISCUSSING WARREN& KELLOGG,P.S.
LEGAL ISSUES PAGE 2 100 SO.SECOND T.,
ATTORN
ST.,P.O.P.
AW
BOX 626
RF^.1ON,WASHINGTON 98057
255-8678
1 The request for "clarification" would be a motion for
2 reconsideration under City Code . City Code Section 4-3015
3 states in relevant part :
4 RECONSIDERATION: Any interested person feeling that
the decision of the Examiner is based on an
5 erroneous procedure , errors of law or fact , error in
judgment , or the discovery of new evidence which
6 could not be reasonably available at the prior
hearing , may make a written application for review
7 by the Examiner within fourteen ( 14) days after the
written decision of the Examiner has been rendered .
8 The application shall set forth the specific errors
relied upon by such appellant . . .
9
Renton City Code Section 4-3016 sets forth the applicable time
10
limits for an appeal . That section states in relevant part :
11
APPEAL: Unless an ordinance providing for review of
12 decision of . the Examiner requires review thereof by
the Superior Court , any interested party aggrieved
13 by the Examiner's written decision or recommendation
may submit a Notice of Appeal to the City Clerk upon
14 a form furnished by the. City Clerk , within fourteen
14) calendar days from the date of the Examiner ' s
15 written report . . . ."
16 It should be remembered that Appellant utilized this
17 section of the City Code and appealed the Examiner' s original
18 decision (Exhibit 4) . The City Council heard the appeal and
19 slightly modified the Hearing Examiner' s decision (Exhibit 5) .
20 Appellant did not raise the questions now being raised in the
21 appeal and therefore this decision is final .
22 It is beyond the scope of this brief to discuss the
23 judicial and quasi-judicial power of the Hearing Examiner and
24 the large body of case law holding Hearing Examiner decisions
25 binding unless timely appealed to a court of competent
26
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE
ATTORNEYS AT LAW
3 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 jurisdiction. As stated in Wright v . Woodward , 83 Wn 2d 378 ,
2 518 P. 2d 718 ( 1974 ) :
3 It is the general rule that when an adequate
administrative remedy is provided , it must be
4 exhausted before the courts will intervene . State
ex rel Ass' n of Wash. Indus . v . Johnson , 56 Wn . 2d
5 407 , 353 P . 2d 881 (1960) ; Sunny Brook Farms v .
6
Omdahl , 42 Wn . 2d 788, 259 P.2d 383 ." '
Suffice it to say that the Examiner made a decision in
7
March of 1981 which was slightly amended by the City Council .
8
No further action was taken to amend , alter or appeal that
9
decision until this motion for clarification. What makes this
10
request most vexing is that the Appellant has sought
11
clarification after clarification from the City' s
12
administrative officers and has offered to accomplish the
13
condition that it now seeks to clarify , but in each
14
instantance conditioned its performance on matters outside of
15
the record and beyond the scope of the Examiner' s decision .
16
17
IF THIS APPEAL IS TRULY AN APPEAL FROM AN ADMINISTRATIVE
18
DECISION , WHEN WAS THE ADMINISTRATIVE DECISION MADE AND WAS
19
THE APPEAL TIMELY FILED?
20
21
Examiner ' s decision .
22
3
Appellant states that it seeks an appeal from the new
administrative determination concerning its permit and
24
license . The "new" determination is not new at all , but
25
rather is a long standing City position .For example ,
26
Appellant' s license expired according to its terms on August
27
16, 1982.Appellant chooses to ignore that fact and to
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 4 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 further ignore the fact that it has no right to operate under
2 a Fill and Grade Permit without the license. As discussed ,
3 Appellant' s license cannot be renewed because of at least
4 three factors :
5 1 . Failure to dedicate the sixty feet required by
6 Examiner decision Paragraph 6 .
7 2. Failure to post the bond detailed in Examiner ' s
8 decision Paragraphs 2 and 5 .
9 3. Failure to maintain the temporary erosion-siltation
10 control facilities required as a condition of a declaration of
11 non-significance from the Environmental Review Committee .
12 The Examiner was most careful to state in his decision of
13 . March 3 , . 1981 (Exhibit 1 ) as follows :
14 No annual license shall be issued without prior
special permit approval and without prior
15 satisfaction of all conditions enumerated below ."
16 From the prior discussion it is abundantly clear that not all
17 of the conditions listed below have been met and that at least
18 conditions 2, 5 and 6 have not been met .
19 As previously stated Appellant seeks review of the "new"
20 administrative determination . That "new" administrative
21 determination was made no later than August 31 , 1982 (Exhibit
22 14) . Appellant does not point to the date of this "new"
23 administrative determination nor does Appellant state from
24 what portion of this "new" administrative determination it
25 appeals . Appellant does not state how it wishes the "new"
26 administrative determination modified nor does Appellant point
27 to the powers of the Examiner to grant the relief it requests .
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 5
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
9SS_A67A
1 Therefore , it is necessary to review the Examiner' s powers
2 vis-a-vis this appeal .
3
4 Examiner ' s appeal powers .
5 Appellant' s request to the Examiner from the "new"
6 administrative determination is apparently made under City
7 Code Section 4-3011 (B) which states in relevant part :
8 Appeals from. the administrative determinations of
the City ' s land use regulation codes and from
9 environmental determinations required by the Renton
Environmental Ordinance may be taken to the Hearing
10 Examiner by any person aggrieved . . .
11 ' 1 . Any such appeal shall be filed in writing with
the Examiner within the following time limits :
12 a) Appeals of a final environmental
determination under the Renton Environmental
13 Ordinance shall be filled within fourteen ( 14) days
of publication of notice of such determination .
14 b) Appeals from an administrative decision
pursuant to this chapter shall be. filed within
15 fourteen ( 14) days of the date that the action was
taken ." ( emphasis added)
16
Even . a cursory review of the quoted section will show
17
that the appeal must be from the "land use regulation codes"
18
and any administrative decision appealed may have been made
19
pursuant to this chapter" , meaning Chapter 30 entitled Land
20
Use Hearing Examiner of the Renton City Code . Appeals from
21
administrative determinations from the City' s . Land Use
22
Regulation Codes are also covered but are not relevant to this
23
appeal .
24
25
Appeal analysis.
26
From what then , does Mt . Olivet appeal? That is nearly
27
impossible to determine because of the extremely vague nature
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE G SECON ST.,P. .B100SO.SECONDST.,P.O.BOX626
RENTON,WASHINGTON 98057
255-8678
1 of the appeal letter and because of Mt . Olivet' s continual
2 conditioning of its demands and refusals to acknowledge and
3 respond to the City' s concerns . It is clear , however , that
4 Appellant wishes its license reinstated so that it can
5 continue. to fill .That license for purpose of this
6 administrative appeal is the subject of Hearing Examiner' s
7 action and not the City' s land use regulation codes . No code
8 sections are cited by Appellant as a basis for this appeal .
9 To claim that refusal to renew the license is an
10 administrative determination pursuant "to this chapter" is in
11 error , however , because the Examiner' s decision . of March 13,
12 1981 (Exhibit 1) contains the statement :
13 No- annual license shall be issued without prior
special permit approval and without prior satisfac-
14 tion of all conditions enumerated below."
15
16 Administrative determination .
17 As previously mentioned , the applicant was notified by
18 letter dated August 31 , 1982. (Exhibit. 14) that its annual
19 license had lapsed, according to its terms . This decision was
20 not appealed . Whereafter , Mt . Olivet was reminded 'that it did-
21 not have an active license by letter dated December 21 , 1982
22 ( Exhibit 16 ) .The bonding required by the Examiner ' s
23 decisions subsequently expired on October 8 , 1982 (Exhibit 23)
24. and other bonds required by the Examiner needed to be posted
25 or increased .The City so notified Appellant' s bonding
26 company on January 12, 1983 ( Exhibit 24) . No appeal has been
27 taken from any of these administrative determinations , if such
28 they can be called .That being the case , each of the
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE ' 7
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 administrative decisions stands as a final adminstrative
2 determination . Appellant is in violation of three (3) .Of the
3 conditions of its special permit , under the Hearing Examiner' s
4 decision of March 13, 1981 , and according to Paragraph 1 of
5 the decision the annual license cannot be issued because all
6 conditions of the Examiner' s decision have not been satisfied .
7 Appellant may claim that the Building Official ' s action
8 in his letter of August 31 , 1982 (Exhibit 14) was not a final
9 action . However , that exact point was dealt with in Bock v .
10 Pilotage Commissioners ,. 9.1 Wn . 2d 94, 99 ,586 P.2d 1173 (1978) .
11 In that case it was alleged that a letter informing the
12 Plaintiff that he had failed a pilotage test did not
13 constitute a final decision . However , the Court held :
14 It . may be argued that this letter was too informal
to constitute proper notice of a final- decision of
15 the Board . Certainly it would be preferable to
issue a formal denial of .a license or other
16 appropriate order to remove any doubt regarding the
significance of a Board communication .In this
17 case , however , the absence of such procedural
niceties was harmless , and in holding the letter was
18 a final decision we do not impose an unduly harsh
result on Appellant ."
19
In our case , a formal notification of the nullity of the
20
permit was mailed and received and responded to . Therefore ,
21
it is clear that that was a final decision ..
22
23
WHAT IS APPELLANT ' S BURDEN OF PROOF IN THIS APPEAL , AND HAS
24
r..
APPELLANT MET ITS BURDEN?
25
26
If the Examiner should decide that he can hear this
27.
appeal then Appellant bears a very strong burden of proof. It
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE $
ATTORNEYS AT LAW
100 SO.SECONDST.,P.O.BOX626
RENTON,WASHINGTON 98057
255-8678
1 must prove that the administrative decision was arbitrary and
2 capricious . There is much case law that analyzes_ that •burden
3 of proof beginning with the case of Lillions v . Gibbs , 47 Wn .
4 2d 629, 633, 289, P.2d . 203 ( 1955 ) :
5 Arbitrary and capricious action of administrative
bodies means willful and unreasoning action , without
6 consideration and in disregard of facts or
circumstances .Where there is room for two
7 opinions , action is not arbitrary or capricious when
exercised honestly and upon due consideration , even
8 though it may be believed that an erroneous
conclusion has been reached ."
9
See also State ex rel Kadow v . Board of Adjustment , 77 Wn . 2d .
10
587, 592, 464 P.2d 418 ( 1970 ) :
11
And , we are satisfied the board did not act
12 arbitrarily and capriciously, or unreasonably in
granting the exception . The record before us
13 indicates that the board heard without undue
limitation the evidence and arguments presented for
14 and against the application at two public hearings ;
called for and received staff study and recommenda-
15 tions concerning the proposal and its compliance
with applicable setback , height , bulk , coverage ,
16 traffic , and density requirements as well as its
potential effect upon surrounding properties ; gave
17 careful consideration to all factors involved and
reached a decision upon a question about which
18 reasonable minds could differ . Arbitrary
unreasoning or capricious action cannot , under these
19 circumstances , be attributed to the board ."
20 Unquestionably , the decisions reached by the City' s
21 administrative authorities are supported by facts and
22 circumstances . At worst , there is room for two opinions .
23 The Examiner must also give great weight to the
24 administrative decision . Generally speaking , the construction
25 or interpretation of a rule by the agency which promulgated it
26 is entitled to great weight .Liquor Control Board v .
27 Personnel Board , 88 Wn . 2d 368 , 379 , '561 P.2d 195 ( 1977) . See
28 also , Kimmel]. v . Crowley Maritime Corp. , 23 Wn . App . 78 , 82.,
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE . 9
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 596, P.2d 1069 (1979) review denied 92 Wn . 2d 1926. The rule
2 applies in zoning cases . East v . King County, 22 Wn". App .
3 247, 255, 589 P .2d 805 (1978) .
4
5 IS THE REFUSAL BY AN ADMINISTRATIVE OFFICER TO GRANT A PERMIT
6 UNTIL ALL OF THE CONDITIONS FOR THAT PERMIT HAVE BEEN MET AN
7 APPEALABLE ADMINISTRATIVE DECISION?
8
9 The City has previously quoted from the Code section
10 authorizing administrative appeals and noted that the appeals
11 authorized by the Code are from administrative determination
12 of the City' s land use regulation codes and from
13 administrative decisions rendered pursuant to the Hearing
14 Examiner' s Ordinance . When one applies that test to the
15 decisions of the City, it is clear that there has been no
16 appealable decision made .
17 The City has previously discussed in some detail how the
18 Appellant is seeking a late review of the Hearing Examiner' s
19 decision , and not seeking review of any administrative
20 determination . In this particular instance the right of the
21 City to issue a license and permit to fill and grade amounts
22 to little more than a ministerial act , at least to those
3 issues touched upon by this appeal . The Examiner ' s decision
24 set forth the conditions that had to be met before the City
25 could. issue a license or permit . It is not argued that the
26 administrative officers of the City have the right to modify
27 the- Examiner ' s decision. That is simply not the case . The
28 administrative officers are bound by the Examiner' s decision .
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 10
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 That being the case , no. discretion can be involved in applying
2 the Examiner' s conditions to the issuance of the permit , at
3 least as it is relevant to this appeal . As the , courts have
4 stated :
5 The acts of administering a zoning ordinance do not
go back to the questions of policy and discretion
6 which were settled at the time of the adoption of
the ordinance . Administrative authorities are
7 properly concerned with questions of compliance with
the ordinance , not with its wisdom ." East Lake
8 Community Council v. Roanoke Associates , 82 Wn . 2d
9
I 475, 483, 513 P.2d 36 (1973) ( emphasis added) .
The administrative duty to act in this case is . strictly
10
ministerial and involving no discretion . The decision being
11
enforced is the Hearing Examiner' s decision of March 13, 1981 .
12
While some discretion may have been involved in determining
13
that the conditions outlined by the Hearing Examiner had not
14
been met , Appellant did not timely appeal any of those
15
administrative determinations and they must stand as facts .
16
Once those facts, are established it is abundantly clear that
17
Appellant has violated the Hearing Examiner' s conditions and
18
the City could not issue the requested permits according to
19
the Examiner' s decision .
20
CONCLUSION
21
Mt . Olivet is seeking a reconsideration of a' two-year old
22
I
Examiner ' s decision. While it has been termed an
23
administrative appeal there has been no administrative
24
decision within the appeal period . Even, if there had been an
25
administrative action within that time period , such action
26
would involve only the implementation of the Examiner ' s
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 11
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 decision and would not constitute an appealable decision .
2 Such an appeal would be a collateral attack on the Examiner' s
3 decision , after the appeal period had run .Even if the
4 decision is appealable the administrative action is not
5 arbitrary and capricious .
6
7 Re s ctful submitted ,
8
9 LAWRENCE J. WARREN
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S. ~ =
LEGAL ISSUES PAGE 12
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
Ty of con
ouddirg&Zow3 C'pt. II
1 m1MU 7
2
3
MAY 3 1983
4
5 IN RE THE APPEAL OF MT. OLIVET .)
AAD - 026-83 BRIEF OF CITY DISCUSSING
6 LEGAL ISSUES
7
8
FACTUAL SUMMARY
9
A synopsis of the facts in this appeal has been prepared
10
and tendered to the Examiner separately in a document entitled
11
Memorandum in Support of City's Motion to Dismiss Appeal .
12
References to. documents in this brief will be to the numbered
13
exhibits in that memorandum .
14
This appeal was started by letter of Mt . Olivet Cemetery
15
Co . , Inc . , dated March 28, 1983 ( Exhibit 27) . That letter
16
consists of an extensive argument , rather than a statement of
17
an appeal and then includes , in part , the followinng statement
18
in its last sentence :
19
Your clarification , based on the record , or the
20 granting of a public hearing based on our appeal of
this new administrative decision is required to
21 resolve this matter . . ."
22 . Therefore , this proceeding is an attempt to clarify Examiner ' s
23 decision of March 13, 1981 but also serves as an appeal .
24 Unfortunately , the letter does not address what administrative
25 decision is being appealed and when that administrative
26 decision was made . This brief will attempt to explore the
27 factual record and the law to determine what administrative
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
ATTORNEYS AT LAW
LEGAL ISSUES PAGE 1 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
1 decision is being appealed and whether the Examiner now has
2 jurisdiction to consider this appeal .
3 ISSUES
4 1 . Does the Examiner have jurisdiction to clarify his
5 decision of March 13, 1981?
6 2 . If this appeal is truly an appeal from an
7 administrative decision , when was the administrative decision
8 made and was the appeal timely filed?
9 3 . What is Appellant's burden of proof in this appeal ,
10 and has Appellant met its burden?
11 4 . Is the refusal by an administrative officer to grant
12 a permit until all of the conditions for that permit have been
13 met an appealable administrative decision?
14
15 DOES THE EXAMINER HAVE JURISDICTION TO CLARIFY HIS DECISION OF
16 MARCH 13 , 1981 ?
17
18 As previously mentioned Appellant , in its appeal letter ,
19 ( Exhibit 27) , states that it wishes a "clarification based on
20 the record" . ' Appellant does not state what it wishes
21 clarified but a review of the letter shows extensive
22 discussions and quotations from the Hearing Examiner ' s
23 decision of March 13, 1981 . Since the Appellant seeks a
24 clarification from the Examiner and the Examiner ' s last
25 official decision on this file is the Examiner' s decision of
26 March 13, 1981 it may be presumed that this is the decision
27 the Appellant wishes clarified . Such a request is not timely
28 and should be rejected by the Examiner .
BRIEF OF CITY DISCUSSING WARREN&-KELLOGG,-P.S.
LEGAL ISSUES PAGE 2
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.Q.BOX 626
I I N1ON,WASHINGTON 98057
255-8678
1 The request for "clarification". would be a motion for
2 ;reconsideration under City Code. City Code Section .4-3015
3 states in relevant part :
4 RECONSIDERATION: Any interested person feeling that
the decision of the Examiner is based on an
5 erroneous procedure , errors of law or fact , error in
judgment , or the discovery• of new evidence which
6 could not be reasonably available at the prior
hearing , may make a written application for review
7 by the Examiner within fourteen (14) days after the
written decision of the Examiner has been rendered .
8 The application shall set forth the specific errors
relied upon by such appellant . . .
9
Renton City Code Section 4-3016 sets forth the applicable time
10
limits for an appeal. That section states in relevant part :
11
APPEAL: Unless an ordinance providing for review of
12 decision of the Examiner requires review thereof by
the Superior Court , any interested party aggrieved
13 by the Examiner's written decision or recommendation
may submit a Notice of Appeal to the City Clerk upon
14 a form furnished by the City Clerk, within fourteen
14) calendar days from the date of the Examiner' s
15 written report . . . ."
16 It should be remembered that Appellant. utilized this
17 section of the City Code and appealed the Examiner' s original
18 decision (Exhibit 4) . The City Council heard the appeal and
19 slightly modified the Hearing Examiner' s decision (Exhibit 5) .
20 Appellant did not raise the questions now being raised in the
21 appeal and therefore this decision is final .
22 It is beyond the scope of this brief to discuss the
23 judicial and quasi-judicial power of the Hearing Examiner and
24 the large body of case law holding Hearing Examiner decisions
25 binding unless timely appealed to a court of competent
26
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE
ATTORNEYS AT LAW
3 100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 .jurisdiction . As stated in Wright v . Woodward , 83 Wn 2d 378,
2 518 P. 2d 718 (1974) :
3 It is the general rule that when an adequate
administrative remedy is provided , it must be
4 exhausted before the courts will intervene . State
ex rel Ass' n of Wash. Indus. v . Johnson, 56 Wn;2d
5 407 , 353 P . 2d 881 (1960) ; Sunny Brook Farms v .
6
Omdahl , 42 Wn . 2d. 788, 259 11.2d 383 .' '
Suffice it to say that the Examiner made a decision in
7
March of 1981 which was slightly amended by the City Council .
8
No further action was taken to amend , alter or appeal that
9
decision until this motion for clarification. What makes this
10
request most vexing is that the Appellant has sought
11
clarification after clarification from the City' s
12
administrative officers and has offered to accomplish the
13
condition that it now seeks to clarify , but in each
14
instantance conditioned its performance on matters outside of
15
16
the record and beyond the scope of the Examiner' s decision .
17
IF THIS APPEAL IS TRULY AN APPEAL FROM AN ADMINISTRATIVE
18
DECISION , WHEN WAS THE ADMINISTRATIVE DECISION MADE AND WAS
19
THE APPEAL TIMELY FILED?
20
21
Examiner ' s decision .
22
Appellant states that it seeks an appeal from the new
23
administrative determination concerning its permit and
24
1
license . The "new" determination is not new at all , but
25
rather is a long standing City position .For example ,
26
27
Ap,pellant' s license expired according to its terms on August
16, 1982.Appellant chooses to ignore that fact and to
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LE1GAL ISSUES PAGE 4 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 further ignore the fact that it has no right to operate under
2 a Fill and Grade Permit without the license. As discussed ,
3 Appellant' s license cannot be renewed because of at least
4 three factors :
5 1 . Failure to dedicate . the sixty feet required by
6 Examiner decision Paragraph 6.
7 2. Failure to post the bond detailed in Examiner' s
8 decision Paragraphs 2 and 5.
9 3. Failure to maintain the temporary erosion-siltation
10 control facilities required as a condition of a declaration of
11 non-significance from the Environmental Review Committee .
12 The Examiner was most careful to state in his decision of
13 . M rch 3, 1981 (Exhibit 1 ) as follows :
14 No annual license shall be issued without prior
special permit approval and without prior
15 satisfaction of all conditions enumerated below ."
16 From the prior discussion it is abundantly clear that not all
17 of the conditions listed below have been met and that at least
18 conditions 2, 5 and 6 have not been met.
19 As previously stated Appellant seeks review of the "new"
20 administrative determination . That "new" administrative
21 determination was made no later than August 31 , 1982 (Exhibit
22 14) . Appellant does not point to the date of this "new"
23 administrative determination nior does Appellant state from
24 what portion of this "new" administrative determination it
25 appeals. Appellant does not state how it wishes the "new"
26 administrative determination modified nor does Appellant point
27 to the powers of the Examiner to gran-t the relief it requests .
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.-
LEGAL ISSUES PAGE 5 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
7SS-0A7A
1 Therefore , it is necessary to review the Examiner' s powers
2 vi!s-a-vis this appeal .
3
4 Exlaminer ' s appeal powers .
5 Appellant' s request to the Examiner from the "new"
6 administrative determination is apparently made under City
7 Code Section 4-3011 (B) which states in relevant part :
8 Appeals from the administrative determinations of
the City ' s land use regulation codes and from
9 environmental determinations required by the Renton
Environmental Ordinance may be taken to the Hearing
10 1 Examiner by any person aggrieved . . .
11 1 . Any such appeal shall be filed in writing with
the Examiner within the following time limits :
12 a) Appeals of a final environmental
determination under the Renton Environmental
13. 1 Ordinance shall be filled within fourteen (14) days
of publication of notice of such determination .
14 b) Appeals from an administrative decision
pursuant to this chapter shall be filed within
15 1 fourteen ( 14) days of the date that the action was
taken ." ( emphasis added)
16
Even a cursory review of the quoted section will show
17 1
18
that the appeal must be from the "landuse regulation codes"
and any administrative decision appealed may have been made
19
pursuant to this chapter" , meaning Chapter 30 entitled Land
20
21
Use Hearing Examiner of the Renton City Code . Appeals from
administrative determinations from the City' s Land Use
22
Regulation Codes are also covered but are not relevant to this
23
appeal .
24
25
26
Appeal analysis .
27
From what then , does Mt . Olivet appeal? That is nearly
impossible to determine because of the extremely vague nature
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGGrP.S.
LEGAL ISSUES PAGE 6
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 of the appeal letter and because of Mt . Ol ivet' s continual
2 conditioning of its demands and refusals to acknowledge. and
3 respond to the City' s concerns. It is clear , however., that
4 Appellant wishes its license reinstated so that it can
5 continue to fill . 'That license for purpose of this
6 aillministrative appeal is the subject of Hearing Examiner' s
7 action and not the City' s land use regulation codes . No code
8 sections are cited by Appellant as a basis for . this appeal .
9 To claim that refusal to renew the license is an
10 administrative determination pursuant "to this chapter" is in
11 error , however , because the Examiner' s decision . of March 13,
12 1981 (Exhibit 1) contains the statement :
13 No- annual license shall be issued without prior
special permit approval and without prior satisfac-
14 tion of all conditions enumerated below."
15
16 Administrative determination .
17 As previously mentioned , the applicant was notified by
18 letter dated August 31 , 1982 (Exhibit. 14) that its annual
19 license had lapsed, according to its terms. This decision was
20 not appealed . .Whereafter , Mt . Olivet was reminded -that it did-
21 not have an active license_ by letter dated December 21 , 1982
22 ( Exhibit 16) .The bonding required by the Examiner ' s
23 decisions subsequently expired on October 8 , 1982 (Exhibit 23)
24 and other bonds required by the Examiner needed to be posted
25 or increased .The City so notified Appellant' s bonding
26 company on January 12, 1983 ( Exhibit 24) . No appeal has been
27 taken from any of these administrative determinations , if such
28 they can be called .That being the case , each of the
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 7
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 administrative decisions stands as a final adminstrative
2 determination. Appellant is in violation of three. (3) .-of the
3 conditions of its special permit , under the Hearing Examiner' s
4 decision of March 13, 1981 , and according to Paragraph 1 of
5 the decision the annual license cannot be issued because all
6 conditions of the Examiner' s decision have not been satisfied .
7 Appellant may claim that the Building Official ' s action
8 in his letter of August 31 , 1982 (Exhibit 14) was not a final
9 action . However , that exact point was dealt with in Bock v.
10 Pilotage Commissioners , 9.1 Wn . 2d 94, 99,586 P.2d 1173 ( 1978) .
11 In that case it was alleged that a letter informing the
12 Plaintiff that he had failed a pilotage test did not
13 constitute a final decision . However , the Court held :
14 It may be argued that this letter was too informal
to constitute proper notice of a final decision of
15 the Board . Certainly it would be preferable to
issue a formal . denial of .a license or other
16 appropriate order to remove any doubt regarding the
significance of a Board communication .In this
17 case , however , the absence of such procedural
18
niceties was harmless , and in holding the letter was
a final decision we do not impose an unduly harsh
result on Appellant ."
19
In our case , a formal notification of the nullity of the20
permit was mailed and received and responded to . Therefore ,
21
it is clear that that was a final decision .
22
23
WHAT IS APPELLANT ' S BURDEN OF PROOF IN THIS APPEAL , AND HAS
24
APPELLANT MET ITS BURDEN?
25
26
If the Examiner should decide that he can hear this
27
appeal then Appellant bears a very strong burden of proof. It
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.-
LEGAL ISSUES PAGE S
100
ATTORNEYS AT LAW
SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
I
1 must prove that the administrative decision was arbitrary and
2 capricious. There is much case law that analyzes_ that •burden
3 of proof beginning with the case of Lillions v. Gibbs, 47 Wn .
4 2d 629, 633, 289, P.2d . 203 (1955) :
5 Arbitrary and capricious action of administrative
bodies means willful and unreasoning action , without
6 consideration and in disregard of facts or
circumstances .Where there is room for two
7 opinions , action is not arbitrary or capricious when
exercised honestly and upon due consideration , even
8 though it may be believed that an erroneous
conclusion has been reached ."
9
See also State ex rel Kadow v. Board of Adjustment , 77 Wn . 2d .
10
11
587, 592, 464 P.2d 418 ( 1970) :
And , we are satisfied the board did not act
12 arbitrarily and capriciously, or unreasonably in
granting the exception . The record before us
13 indicates that the board heard without undue
limitation the evidence and arguments presented for
14 and against the application at two public hearings ;
called for and received staff study and recommenda-
15 tions concerning the proposal and its compliance
with applicable setback, height , bulk, coverage ,
16 I traffic , ' and density requirements as well as its
potential effect upon surrounding properties; gave
17 careful consideration to all factors involved and
reached a decision upon a question about which
18 reasonable minds could differ . Arbitrary
unreasoning or capricious action cannot , under these
19 circumstances , be attributed to the board ."
20 Unquestionably , the decisions reached by the City' s
21 administrative authorities are supported by facts and
22 circumstances. At worst , there is room for two opinions .
3 The Examiner must also give great weight to the
24 administrative decision . Generally speaking , the construction
5 or interpretation of a rule by the agency which promulgated it
26 isj entitled to great weight .Liquor Control Board v .
27 Personnel Board , 88 Wn . 2d 368, 379, 561 P.2d 195 ( 1977) . See
28 also, Kimmell v. Crowley Maritime Corp. , 23 Wn . App. 78 , 82,
BRIEF OF CITY, DISCUSSING WARREN&KELLOGG,P.S."
LEGAL ISSUES PAGE 9 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.80X 626
RENTON,WASHINGTON 98057
1 596, P.2d 1069 (1979) review denied 92 Wn . 2d 1926. The rule
2 applies in zoning cases . East v . King County, 22 Wn'. App .
3 247, 255, 589 P.2d 805 (1978) .
4
5 IS THE REFUSAL BY AN ADMINISTRATIVE OFFICER TO GRANT A PERMIT
6 UNjTIL ALL OF THE CONDITIONS FOR THAT PERMIT HAVE BEEN MET AN
7 APPEALABLE ADMINISTRATIVE DECISION?
8
9 The City has previously quoted from the Code section
10 authorizing administrative appeals and noted that the appeals
11 authorized by the Code are from administrative determination
12 of the City' s land use regulation codes and from
13 administrative decisions rendered pursuant to the Hearing
14 Examiner' s Ordinance . When one applies that test to the
15 decisions of the City, it is clear that there has been no
16 appealable decision made .
17 The City has previously discussed in some detail how the
18 Appellant is seeking a late review of the Hearing Examiner' s
19 decision , and not seeking review of any administrative
20 determination . In this particular instance the right of the
21 City to issue a license and permit to fill and grade amounts
22 to little more than a ministerial act , at least to those
3 issues touched upon by this appeal . The Examiner' s decision
24 set forth the conditions that had to be met before the City
25 could issue a license or permit . It is not argued that the
26 administrative officers of the City have the right to modify
27 the Examiner' s decision . That is simply not the case . The
28 administrative officers are bound by the Examiner' s decision .
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEdAL ISSUES PAGE 10
ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
1 That being the case , no discretion can be involved in applying
2 the Examiner' s conditions to the issuance of the permit, at
3 least as it is relevant to this appeal . As the . courts have
4 stated :
5 The acts of administering a zoning ordinance do not
go back to the questions of policy and discretion
6 which were settled at the time of the adoption of
the ordinance . Administrative authorities are
7 properly concerned with questions of compliance with
the ordinance , not with its wisdom ." East Lake
8 Community Council v. Roanoke Associates , 82 Wn . 2d
475, 483, 513 P.2d 36 (1973) Cemphasis added) .
9
The administrative duty to act in this case is strictly
10
ministerial and involving no discretion . The decision being
11
enforced is the Hearing Examiner' s decision of March 13, 1981 .
12
While some discretion may have been involved in determining
13
that the conditions outlined by the Hearing Examiner had not
14
been met, Appellant did not timely appeal any of those
15
administrative determinations and they must stand as facts .
16
Once those facts are established it is abundantly clear that
17
Appellant has violated the Hearing Examiner' s conditions and .
18
the City could not issue the requested permits according to
19
the Examiner' s decision .
20
CONCLUSION
21
Mt. Olivet is seeking a reconsideration of a two-year old
22
Examiner ' s decision . While it has been termed an
23
administrative appeal there has been no administrative
24
decision within the appeal period . Even if there had been an
25
administrative action within that time period , such action
26
would involve only the implementation of the Examiner ' s
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 11 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
1 decision and would not constitute an appealable decision .
2 Such an appeal would be a collateral attack on the Examiner' s
3 decision , after the appeal period had run .Even if the
4 decision is appealable the administrative action is not
5 arbitrary and capricious .
6
7 Res ctful submitted ,
8 9
9 LAWRENCE J. WARREN
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BRIEF OF CITY DISCUSSING WARREN&KELLOGG,P.S.
LEGAL ISSUES PAGE 12 ATTORNEYS AT LAW
100 SO.SECOND ST.,P.O.BOX 626
RENTON,WASHINGTON 98057
255-8678
d4
2
3
MAY .2 1983 n-
5 IN RE THE APPEAL OF MT. OLIVET
AAD - 026-83 MOTION TO DISMISS APPEAL
6
7
8
9 COMES NOW the City of Renton, by and through. its City Attorney,
10 Lawrence J. Warren, and moves the Hearing Examiner to dismiss this
11 appeal for the following reasons :
12 1 . The appeal is not timely made in that the Hearing Examiner ' s'
13 Decision that is the basis of the appeal -is dated March 13 , 1981 ,
14 and the appeal letter is dated March 28 , 1983 , over two years later.
15 2. The appellant has previously moved for reconsideration,
16 and appealed from this very decision without raising this point .
17 An unappealed finding or conclusion is therefor the law of the case
18 and may not be appealed the second time. .
19 3.. The appellant has previously requested administrative
20 determinations concerning the subject matter of this appeal , which
21 have been rendered: However, appellant has not appealed from those .
22 administrative determinations and is therefore 'estopped to appeal
23 at this point .
24 4. The issue is moot in that appellant has violated other
25 conditions of the special permit and license , the license has lapsed
26 wituout renewal , and the permit is therefore void.
27 Dated April 27 , 1983 .
L ence J. War en
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
100 50. SECOND ST.. P. O. BOY. 626
RENTON. NrASHINGTON 98057
255.3673
1
2
s
3
4
5 IN ' THE APPEAL OF MT. OLIVET )MEMORANDUM IN SUPPORT OF
CITY' S MOTION TO DISMISS
6 AAD -026-83 APPEAL
7
8 This Memorandum is submitted to support the City' s Motion to
9 dismiss the appeal and is intended to be factual in nature. Another
10 legal memorandum will be submitted discussing the applicable sections
11 of the City Code and State law.
12 PERMIT HISTORY
13 Mt. Olivet Cemetery . Company, Inc. . made an application to the
14 City of Renton for a special permit to fill and grade on a site of
15 appyroximately eleven acres . A public hearing was held on March
16 3 , 1981 which resulted in a Hearing Examiner' s decision March 13 ,
17 1981, a copy of which is attached hereto , as Exhibit "1" . This
18 decision will be referred to again in this Memorandum under the
19 Section entitled "Violated Conditions of Permit" .
20 Immediately upon receiving the Hearing Examiner ' s decision
21 the attorney for Mt. Olivet , Mr. Theodore Gathe, filed a request '
22 for reconsideration- which request for reconsideration is attached
23 hereto as Exhibit "2" . The request for reconsideration was limited
24 to arguments concerning conclusions No . 5 and Conditions No . 8
25 and 10 . Each of those conditions related to the contents of the
26 fill to be used on the property or the way in which the fill
27 was to be distributed on the property. No mention was made of
28 condition No . 6 requiring dedication of a 60 foot right of way .
MEMORANDUM 1 WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST.. P. 0. BOX 626
RENTON. WASHINGTON 98C57
255.8678
1 The Examiner reconsidered his decision, but denied the request
2 to modify the decision. See Exhibit "3" attached hereto . Subsequently
3 the a was an appeal taken to the City Council by letter dated April
4 4" hereto . The appeal was referred to8, 1981 . See .Exhibit P
5 the Planning. and Development Committee. of the Renton City Council .
6 That Council Committee heard the appeal , recommended modifications
7 of the Hearing Examiner' s . decision. which modifications were duly
8 adopted by. the City Council at its meeting on May 11 , 1981. See
9 Exhibit "5" hereto .
10 PRIOR ADMINISTRATIVE DETERMINATIONS
11 . On the strength. of the City Council ' s modification ,to the
12 Hearing Examiner' s decision, the Building Department issued the
13 requested full. and grade. permit to Mt. Olivet Cemetery. Despite
14 knowing that Mt. Olivet was required to dedicate 60 feet of land
15 for a roadway, Mt. Olivet Cemeteries never delivered that deed.
16 :The ' City of Renton became aware of that fact in April of 1982 and
17 addressed a letter to Mt . Olivet Cemetery dated April 29 , 1982 .
18 See Exhibit "6 Rather than delivering the long overdue dedication
19 Mt . Olivet instead attempted to appeal to the Hearing Examiner a
20 lon . standing requirement of dedication. See Exhibit "7" . ,This
21appealwas filed e i e .the fact that the dedication was a conditionfddspt
22 of the. original grant , that an appeal had been filed challenging
23 certain of the conditions , but not this condition and the exercise
24 of he permit for a substantial period of time . : Mt. Olivet appealed
25 this notification that a condition of the original permit had not
26 been met by letter dated May 13 , 1982 . See Exhibit ' 7" . This letter
N7 terms the notice an administrative determination and indicates that
28 Mt. Olivet sought clarification or alternatively , sought to appeal .
MEMORANDUM - 2
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
100 SO. SECOND ST., P. O. SOX 628
RENTON, WASHINGTON 98057
259-8678
1 Mt. Olivet then toilowed-.that letter with a iecter dated July 15 ,
I
2 1982. . See Exhibit "8" . The Examiner refused to consider these two
3 letters ' appeals , terming them- an appeal to the Examinerdecision
4 of March 13 , 1981. See Exhibit "9" . Mt. Olivet apparently abandoned
5 any lattempt to further urge that this was an administrative appeal
6 but 'rcontinued to operate on what was now. a void permit.
7 The City of Renton continued to attempt to obtain the dedication.
8 See ',Exhibit "10" , letter of June 16 , 1982 , and Exhibit "11" , letter
9 dated July 1, 1982. Mt. Olivet ignored these items of correspondence
10 except to answer by telephone. Th.erefore', on August 4, 1982 , the •
I .
11
City sent another letter (Exhibit "12") . reaffirming its position. •
12 At or about this time, Mt.. Olivet changed its tactics and tried to
13 condition .its grant of 'the right of way .to the City 'of Renton.
14 Mt.. Olivet tried to require that the City guarantee a volume of •
15
water to Mt. Olivet for its irrigation purposes (See second paragraph.
16
of Exhibit "12") and for the first time claiming• that the Hearing
17 Examiner' s decision could be conditioned upon the. agreement of Mt.
18
Olivet. This last contention was contained in a letter of August
19
16 , 1_982 , attached as Exhibit "13" . This. letter also contained an
20
additional condition, that is - that the City vacate to American
21
Memorial the: Blaine Avenue entrance to Mt . -Olivet Cemeteries . The
22
City responded by' letter dated August .31 , 1982 (See Exhibit "14")
23
rejecting any conditions on what wa-s a clear requirement set forth
24
in the Hearing Examiner' s -decision. Exhibit "14" also notified
25
Mt . Olivet that its annual license had expired and that all require-
26
ments for the granting of the license and special permit must be
27
metiimmediately. No responsive correspondence was received from
28
Mt . 'I0livet for several months and no correspondence addressed
WARREN & KELLOGG. P.S.
MEMORANDUM - 3 ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. BOX 626
RENTON, WASHINGTON 9.730757
255-E$73
1 th administrative determination that the license was expired.
2 This for the first time was an administrative determination which
3 cold be appealed. There was no appeal from this administrative
4 determination and therefore, the administrative determination stands .
5 VIOLATIONS 'OF PERMIT OR LICENSE
6 Almost from the start the City of Renton had trouble with Mt .
7 Olivet Cemeteries misusing its license and/or .permit . On March 1,
8 1982, the •City found, it necessary to inform Mt. Olivet that it, was
9
not to remove materials from the site. See Exhibit "15" . Apparently,
10 there was no disagreement about this fact as there is no further
11
correspondence nor any appeal . However, the City did find it
12
necessary on December 21, 1982 to again notify Mt . Olivet that no
13
material was to be hauled from 'the site. See Exhibit "16" . That
14
Exhibit also reminded Mt. Olivet that there was no license to haul
15
material onto the site..'
16
The City' s problems with Mt. Olivet were not. limited to
17
removal of materials from the site. or _the lapsed license. The
18
erosion control facilities that Mt . .Olivet had to install were
19
not installed or maintained correctly. The City so notified Mt .
20
Olivet by letter dated July 19, 1982 (Exhibit "17") . Plans
21
submitted to obtain the initial permit were not properly implemented
22
resulting in sediment blocking the existing drainage facilities .
23
See Memo to file dated September 15 , 1982 , Exhibit "18" . The
24
information contained in Exhibit "18" was forwarded to Mt. Olivet
25
Cemeteries by letter dated October 25 , 1982 (Exhibit "19") .
26
Rather than answer any of the City' s concerns , Mt . Olivet once
27`
again attempted to condition the grant of the dedication to the
28
City , this time upon the condition that the City guarantee that
WARREN & KELLOGG, P.S.
ATTORNEYS AT LAW
MEMORANDUM - u too SO. SECOND ST.. P. O. BOX 626
RENTON, WASHINGTON 98057
255-8678
1 a building permit be issued to actually construct a road on the -
2 dedicated right-of-way. (See Exhibit "20") . Siltation has remained
3 a problem at the site as can be seen from the photos attached as
4 Exhibit "21" and the Memorandum .to Dick Houghton from the Engineering
5 Department' dated April 4, 1983 , attached hereto as Exhibit "22" .
6 1 In the meantime, a new breach of the permit had occurred.
7 Mt. Olivet was required to post with the City a bond. or' letter of
8 credit to serve as security for funds for cleaning the City streets .
9 (See conditions of Permit., Exhibit "1", Condition No . 5) . . An'
10 irrevocable letter of credit was submitted to. the City which was
11 good sixty days after the deferral date of August 8 , 1982 . See
12 Exhibit "23" . .Approximately October 8 , 1982, that letter of credit
13 expired by its terms and has not. been replaced with another letter
14 of credit. Additionally, further bonds were necessary under
15 Condition No . 2 of the Hearing Examiner' s decision. Those bonds ,
16 in adequate amount have not been posted with the City. See City ' s
17 letter of January 12 , 1983 , Exhibit "24". At no time did Mt.
18 Olivet attempt to resolve the problem, but rather blamed the
19 pro'plem on the City, adjoining developers , ERADCO and Kent Highlands ,
20 or on Segale Company. See Mt . Olivet letter of January 13 , 1983 ,
21 Exhibit "25" . .
22 . Despite several warnings to Mt . Olivet that it was operating
23 without an appropriate permit , Mt . Olivet continued to operate a
24 filland grade operation. Not only did • it operate a fill and grade
25 operation, it continued to violate the permit, operating without
26 a blond, N. E.and tracking dirt .onto N. E Third. The City. found it
27 necessary to issue a stop work order dated March 1 , 1983 , a copy
28 of .which is attached as Exhibit "26" .
WARREN & KELLOGG, P.S.
7 T q
ATTORNEYS AT LAW
MEMOP.ANDlfN - 5 100 SO. SECOND ST.. P. O. BOX 626
RENTON. WASHINGTON 98057
255-8678
1
1 1 For some unknown reason Mt. Olivet now files what can only
2 be called a request for clarification of the original Hearing
3 Examiner' s Decision. See three page letter dated March 28 , 1983 ,
4 Exhibit "27". However, Mt. Olivet claims that the letter is
5 an appeal from an administrative determination, I.t does not refer •
6 to any City administrative action, but rather to the totality of
7 events beginning with the Hearing_ Examiner' s decision of March 13 ,
8 1981 . (Exhibit "1") .
9
I SUMMARY OF FACTS
I
10 1 The document which is being treated as the Notice of Appeal
11 constitutes nothing more than a request for reconsideration of
12 the Examiner' s decision of March 13 , 1981. Mt. Olivet has operated
13' in. violation. of the conditions of the permit and license for over
14 two; years . The project is not currently bonded, has inadequate
15 or destroyed temporary erosion control facilities and has not
16 ded'cated the sixty foot piece of land originally required by the
17 Examiner. While estensibly claiming that it wishes to dedicate
18 sixty feet, Mt. Olivet also appears to claim that it does not have
19 thel title to the property any longer, while at the same time promising
20 the dedication if the City will meet an ever growing list of pre-
21 conditions to that grant. Factually, Mt . Olivet is in violation of
22 a number of conditions of its permit . Mt . Olivet now disingenuously
23 claims that there was some administrative determination which. affects
24 itslnon-existent lapsed, voided permit . The facts state otherwise;
25 Dated April 28 , 1983 .
26 Re ctfull ibmitted,
27 t'W, —
28
awrence J. Warren, City Attorney
MEMORANDUM - 6
WARREN & KELLOGG. P.S.
ATTORNEYS AT LAW.
100 SO. SECOND ST., P. O. BOX 626
RENTON. WASHINGTON 93057
255-8678
LiLtkAl.0
March 13, 81
OFFICE OF THE LAND USE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION;
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APPLICANT: Mt. Olivet Cemetery Co.,, Inc: FILENO. .SP=047-80
LOCATION:Property located north and east of the existing platted
cemetery, east of N.E. 3rd Street, in the vicinity of 100
Blaine Avenue N.E. and the powerline right-of-way.
SUMMARY OF REQUEST: The applicant seeks special permit approval for fill and grade
of an +11 acre site.
SUMMARY OF ACTION: . PLanning Department Recommendation: Approval with conditions.
Hearing Examiner Decision: Approval with conditions.
PLANNING DEPARTMENT The Planning Department preliminary report was received by the
REPORT: Examiner on February 25, 1981 .
PUBLIC HEARING: After reviewing the Planning Department report, examining
available information on file with the application, and field
checking the property and surrounding area, the Examiner
conducted a public hearing on the subject as follows:
The hearing was opened on March 3, 1981 at 9:00 a•.m. in the Council Chambers of the
Renton Municipal Building.
Parties wishing to testify were affirmed by the Examiner.
It was reported that the Hearing Examiner and the applicant had received and reviewed the
Planning Department preliminary report. Roger Blaylock, Associate Planner, presented the
report , and entered the following exhibits into the record:
Exhibit #l : Application File containing Planning Department
report and other pertinent documents
Exhibit #2: Site Plan with Finished Elevations
Exhibit #3: Vicinity Map
The Examiner inquired regarding the proposed quantity of fill material and the number of
potential truck trips generated by the project. Mr. Blaylock indicated that the subject
had not been addressed.
The Examiner requested testimony by the applicant. Responding was:
Ted Gathe
Attorney at Law
4111 E. Madison
Seattle, WA 98112
Mr. Gathe advised that the Planning Department recommendations had been reviewed by the
applicant and although there are no objections to the conditions, clarification is
required on certain items by the applicant.
Responding was:
James Colt
P.O. Box 547
Renton, WA 98057
Mr. Colt, the applicant, requested clarification of Condition No. 4 of the report which
pertains to submission of interim drainage plans. He advised that drainage plans were
included with plans for road construction filed previously on numerous occasions. He
also indicated that Stoneway Concrete Co. had constructed the roadway and had agreed to
correct any drainage problems which currently exist. Referencing Condition No. 11 , hours
of operation, Mr. Colt indicated concurrence with the recommended hours as stated in the
report. Regarding Condition No. 10, which recommends that the 60-foot easement granted
to ERADCO by Mt. Olivet be dedicated to the City of Renton for public street purposes,
Mr. Colt stated agreement to the dedication only upon completion of the roadway, noting
that upon completion, the existing access on the western portion of the cemetery to
t
ar-047-80 Page Two
Blaine Avenue N.E. would be closed. He requested that as a consideration of the
dedication, the city vacate that strip of roadway from Blaine across the cemetery
property.
Responding to Mr. Blaylock's inquiry regarding the proposed quantity of fill material ,
Mr. Colt advised that in the original application 25,000 cubic yards of fill had been
anticipated; however, due to the phasing procedure, the remaining figure is unknown. •
The Examiner requested testimony in support or opposition to the application. There was
no response. He then invited final comments from the Planning Department staff. Mr.
Blaylock indicated the opinion of the department that dedication of the roadway would
be necessary only if the ERADCO property is allowed to develop. Responding to Mr.
Blaylock's comments regarding the Planning Department recommendation for vacation of
Blaine Avenue N.E. , the Examiner advised that authority for approval of street vacations
rests with the City Council .
The Examiner requested further comments. Since none were offered, the hearing regarding
File No. SP-047-80 was closed by the Examiner at 9:30 a.m.
FINDINGS, CONCLUSIONS & DECISION: Having reviewed the record in this matter, the Examiner
now makes and enters the following:
FINDINGS:
1 . The request is for approval of a special permit to fill and grade an approximately +11
acre s;i te.
2. The application file containing the application, SEPA documentation, the Planning
Department report, and other pertinent documents was entered into the record as
Exhibit #1 .
3. Pursuant to the City of Renton's Environmental Ordinance and the State Environmental
Policy! Act of 1971 , R.C.W. 43.21 .C. , as amended, a Declaration of Non-Significance
conditioned on hours of operation has been issued for the subject proposal by the
Environmental Review Committee, responsible official.
4. Plans for the proposal have been reviewed by all city departments affected •by the
impact of this development.
5. The subject property is located north and east of the existing Mt. Olivet Cemetery
on the' south side of N.E. 3rd Street and east of Blaine Avenue N.E. Access to the
cemetery is via Blaine Avenue N.E. through a residential area. Access to the grading
site will be via a southerly extension of Edmonds Avenue N.E.
6. The cemetery has been in operation for many years. The area of the proposed fill
and grade project was formerly a surface mining operation. A special permit to
fill a'nd grade the subject property was issued on March 25, 1977, and that permit
has since expired. The applicant did not complete the fill and grade, and has applied
for a new permit to continue the operation pursuant to Section 4-722(B) and 4-2301 (3) (A
The applicant has also constructed an access to the northwest corner of the site.
7. The Comprehensive Plan designates the area in which the subject site is located as
suitable for the development of public and quasi-public uses.
8. The subject property is zoned GS-1 (General ; Single Family Residential ; Minimum lot
size -i35,000 square feet) .
9. The applicant, the Mt. Olivet Cemetery, proposes expanding the cemetery to encompass
the subject property after it is graded and filled. A conditional use permit to
allow a cemetery will be required to permit such expansion in the GS-1 zone (Section
4-722(F) (2) (a)) . .
10. To the west are four single family homes and beyond those the Monterey Terrace
Subdivision. East of the site is the Puget Power transmission line corridor.
Easterly of the powerline is the Edwards/Rainier Sand and Gravel operation (See •
Special Permit File No. SP-099-80) . Other existing and former quarry operations :are
located south and east of the site. The proposed ERADCO development is located
south of the subject site and the Homecraft development is proposed north of the site.
11 . Mt. Olivet Cemetery has granteda 60-foot wide easement along the eastern boundary
of the subject site to service the proposed ERADCO development. The city has
recommended that this right-of-way be dedicated to the city for the eventual purpose
of extending Edmonds Avenue along this alignment. The applicant has agreed to so
dedicate the property.
SF 7-80 Page Three
12. No information was available on the amount of fill material which will be necessary.
to accomplish the work, and, therefore, no estimate can be made on the number of
truck trips required to complete the work. This information should be presented in
order to fully evaluate the impact of the operation on noise and traffic congestion.
Section 4-2307(3) requires the submission of such information as part of the
application.
13. The finished grade of the subject site will approach the finished grade of the
existing cemetery, that is, approximately 285 feet. The grade to the north will
approach this grade by a gradual increase from about 250 feet. The grade on the
east will be raised approximately 20 to 35 feet above the level of the former surface
mining pit.
14. Stabilization of the various filled slopes will be necessary as well as rehabilitation
of the site consisting of both landscaping and hydroseeding. Landscaping will be
required to buffer the cemetery from the residential uses to the west of the site
and landscaping will be required on the northern property line. The applicant
agreed to provide a 50-foot buffer in each of these locations.
The Planning Department indicated that the calculated cost of providing assurance
of these requirements will be approximately 50 cents per square foot for the buffer
and about four cents per square foot for the rehabilitation along the other filled
portions of the site.
CONCLUSIONS:'
1 . The applicant's proposal to reclaim the former mining site for use as a cemetery
appears 'to serve the public use and interest, and, therefore, subject to the
conditions listed below, should be approved.
2. The approximately 11 acre site is characteristic of a former surface'mining
operation with cut raw slopes. The applicant intends to restore the contours of ,
the site and raise the level of the site to match the elevations of the existing
cemetery.
The pit level is currently about 20 to 35 feet below the proposed finished grade.
There will have to be a transitional slope between the new grade and the adjacent
property to the east. The Public Works Department will have to approve the slope
angle. In addition, the area will have to be stabilized by reforestation and
hydroseeding.
3. The area west of the site provides the current access via Blaine Avenue N.E. This
residential area should not be used to provide access for the large trucks, conveying
the fill material to the site. The access road from Blaine to the existing cemetery
should be phased out with the construction of Edmonds Avenue N.E.
4. The hours of operation should be limited to minimize interference, with the peak
hour traffic on N.E. 3rd Street. The hours of operation should be limited to the
weekdays of Monday through Friday between the hours of 8:00 a.m. and 3:30 p.m.
Also to minimize the impact of the fill operation on traffic and city roads, a cash
bond in the amount of $2,000 should be posted with the city to provide that city
crews can clear the streets of debris generated by the subject operation as necessary
if that cleaning is not immediately accomplished by the applicant.
5. The site is not to be utilized as a solid waste dump, and, therefore, only naturally
occuring materials such as earth, rock and gravel may be used to fill the site.
6. The permit should be issued for aperiod not to exceed three years. Any additional
time increment shall be again subject to a public hearing and shall be applied for
six months prior to the expiration of the current special permit. No annual license.
shall be issued without issuance of the special permit.
7. The applicant will be required to dedicate to the city for road purposes a 60-foot
wide right-of-way which shall be subject to the determination of the City of Renton
but such right-of-way shall be in or close to an alignment with a southerly
extension of Edmonds Avenue N.E.
8. In order to buffer the residential uses west of the site and generally screen the
cemetery use, a 50-foot landscape buffer shall be maintained along the north and
west property lines. A bond in the amount of 50 cents per square foot should be
posted to assure that the condition is complied with by the applicant.
SP-047-80 Page ;Four
9. The slope stability may be accomplished by a combination of methods subject to the
approval of the Planning and Public Works Departments. Hydroseeding efforts and
a bond to assure rehabilitation are calculated. to cost four cents per square foot
and a bond in this amount shall be posted.
10. The permit is issued solely for the purpose of bringing fill to the site from
outsider sources and no on-site removal or redistribution of material is permitted
under this permit.
11 . The temporary access road which has been constructed at the northwest corner of the
site is to be closed and adequate safety provisions made at this location.
12. The applicant will have to submit sufficient data to allow the estimation of the
number of vehicle trips, and this data may be used by the Public Works Department
to determine what additional traffic control measures may need to be instituted
subject to further review by the Hearing Examiner.
DECISION:
The special permit to fill and grade the subject site is approved for a period not to
exceed three years subject to the following conditions:
1 . The applicant will apply for a renewal of the special permit six months prior to
the expiration of this special permit if additional time is required. No annual
license shall be issued without prior special permit approval and without prior
satisfaction of all conditions enumerated below.
2. The posting of a bond in an amount sufficient to cover the. costs of both landscaping
the 501 foot buffers and rehabilitation and hydroseeding the subject site. The costs
of such operations are 50 cents per square foot and four cents per square foot,
respectively.
3. The hours of operation shall be limited to Monday through Friday, 8:00 a.m. to 3:30 p.m.
4. No access by trucks shall be permitted via Blaine Avenue N.E. Both the primary
cemetery access and the supplementary access on the northwest corner of the subject
property shall be closed as determined by the Planning and Public Works Departments
and provision made to provide safe closures of both roadways.
5. A cash bond in the amount of $2,000 shall be posted with the city to permit the
city crews to keep the city streets clear of debris generated by the subject fill
operation.
6. The dedication of a 60-foot wide right-of-way to the city for the southerly extension
of Edmonds Avenue N.E.
7. The prolvision and maintenance of a 50-foot landscape buffer along• the northern and
western property lines of the subject site.
8. All fill material shall consist of natural materials such as earth, rock and gravel .
9. Submission of information containing an estimate of the amount of fill material
involved in the operation per city requirements, such information shall be subject
to review of the Public Works Department and shall be used to determine.what
additional traffic control measures are necessary subject to further review of the
Hearing Examiner.
ORDERED THIS 13th day of March, 1981 .
7L-715 \65.4.%
Fred J. K fman
Land Use ring Examiner
TRANSMITTED THIS 13th day of March, 1981 by Affidavit of Mailing to the parties
of record:
Ted Gathe, Attorney at Law, 4111 E•. Madison, Seattle,
WA 98112
James Colt, P.O. Box 547, Renton, WA 98057
I
RECEIVED
1 CITY OF RENTON Q
HEARING EX•,M •47q 1_
2 MF F: 25 iS<;,1
AM f?•9
3 71R191100h121712:2. ry
4
5
6 OFFICE OF THE LAND USE HEARING EXAMINER
CITY OF RENTON
7
In re Application of
8 File No. SP-047-80
MT. OLIVET CEMETERY CO. , INC.
9 for a special permit REQUEST FOR RECONSIDERATION
10
11 Comes now Mt. Olivet Cemetery Company, Inc. by and through its
12 attorney Theodore H. Gathe and requests the hearing examiner for
13 the City, of Renton to reconsider and modify the following items.
14 1 . Applicant requests that the hearing examiner reconsider
15 Conclusion No. 5 of the Hearing Examiner ' s Report and Recommen-
16 dation which states as follows:
17 5 . The site is not to be utilized as a
solid waste dump, and, therefore , only naturally
18 occurring materials such as earth, rock and gravel
may be used to fill the site.
19
2 . Applicant requests that the hearing examiner reconsider
20
and modify Condition No. 8 in the Hearing Examiner ' s Report and
21
Recommendation which reads as follows:
22
8 . All fill materials shall consist of
23 natural materials such as earth, rock and gravel.
24 3 . The applicant requests that the Hearing Examiner recon-
25 sider Conclusion 10 which reads as follows:
26
Conclusion 10: The permit is issued solely
27 for the purpose of bringing fill to the site
from outside sources and no non-site removal or
28 redistribution of material is permitted under
this permit.
29
ARGUMENT:
30
As the hearing examiner pointed out in Finding No. 6 in the
31
32 Request for Reconsideration -1
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
1 •
eport and Recommendation, a special permit to fill and grade the
2 ubject property was issued in 1977 and subsequently expired in
3 1980 . The city permitted an interim filling use on the property in
4 iew of the ongoing operation and the fact that the fill and grade
5. .lan had not yet been completed.
6 In a preliminary report to the Hearing Examiner dated April 12,
7 977 (a copy of which is attached hereto) the applicant, Mt. Olivet .
8 emetery Co. , Inc. requested a special permit for a., fill and grade
9 .peration in order to rehabilitate an abandoned surface mining area
10 and; to include that reclaimed area as part of the Mt. Olivet
11 emetery grounds. Page 1 of the Preliminary Report to Hearing
12 Examiner by the Planning Department indicated that the proposed
13 fill shall consist of solid waste, including broken concrete,
14 bricks, wood and other construction rubble. On Page 3 of the
15 Planning Department ' s Preliminary Report to the Hearing Examiner,
16 Department Analysis No. 3 provided as follows:
17 3 . Fill material will consist of 'construc-
tion rubble layered from fill material 'from the
18 construction site. Each lift or layer of con-
struction material fill will be covered with
19 suitable fill material from the site at the
completion of each work day . . . .
20
On Page 5 of said Preliminary Report, the Planning Department
21
recommended to the Hearing Examiner approval of the special permit
22
for fill and grade subject to certain conditions. Among those con-
23
ditions was the following:
24
6. Sanitary land fill or fill material con-
25 sisting of car bodies, refrigerators, stoves, or
other similar bulk items shall not be permitted
26 on the subject site.
27 ; After a land use hearing on April 12, 1977 the land use Hearing
28 Examiner for the City of Renton recommended approval of the appli-
29
cation on April 22, 1977 . Included among his Findings of Fact,
30 Conclusions and Conditions were the following:
31
32 Request for Reconsideration -2
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
s.
1 Finding No. 2: The area adjacent to the
subject property has been heavily excavated
2 throughout the years leaving large cavities as
remnants of those former operations. The appli-
3 cant is proposing to reclaim one of those existing
cavities by filling, using a variety of fill
4 materials approved and specified by the City's
Mining and Grading Ordinance. (emphasis added)
5
Finding No. 7: The specific types of material
6 that are prohibited are specified in the City's
Mining and Grading Ordinance.
7
The recommendation of the Hearing Examiner was approval subject
8
to the Planning Department's Recommendation Nos. 1 through 14.
9
Included among those 14 conditions proposed by the Planning
10
Department was Condition No. 6 cited herein:
11
6 . Sanitary land fill or fill material
12 consisting of car bodies, refrigerators, stoves,
or other similar bulk items shall not be per-
13 mitted on the subject site.
14 Based on the Recommendation and Report of the Hearing Examiner,
15 Mt. Olivet proceeded to begin its fill and grade operation. In
16 accordance with the earlier recommendation of the Hearing Examiner,
17 Mt. Olivet accepted only construction debris and other itemp per-
18 mitted under solid waste fills. At no time has Mt. Olivet allowed
19 the dumping of any items permitted under the sanitary land fill
20
provisions or any fill material consisting of plastics, car bodies,
21
refrigerators, stoves, or other similar bulk items not permitted on
22 the subject site.
23
On March 3 , 1981 the Planning Department presented a
24 Preliminary Report to the Hearing Examiner with regard to the above
25
mentioned application. Item 10 of the Planning Department's analy-
26
sis provided as follows:
27
10 . Based upon the description of work
28 methods and rehabilitation A-1 submitted by the
applicant, the Planning Department has no concerns
29 except over the type of material used for fill.
The site should not become a sanitary land fill or
30 consist of materials such as car bodies, regriger-
ators, stoves or other bulk items and plastics.
31
32 Request for Reconsideration -3
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
1 Plastics are a non-degradable material and will
remain on the site forever causing unusual ground
2 water patterns.
3 The Planning Department recommended approval of the subject
4 site stating as follows:
5 The Planning Department recommendation is
almost identical with the recommdation submitted
6 to the Hearing Examiner on April 12, 1977 for the
original request. It is recommended by the Depart-
7 ment that the Hearing Examiner approve the special
permit for fill and grade file no. SP-047-80 sub-
8 ject to the following conditions:
9 Among those conditions was the following:
10 Condition 6: Sanitary land fill or fill
material consisting of plastics, car bodies,
11 refrigerators, stoves or other similar bulk
items shall not be permitted on the subject
12 site.
13 As set forth above, the Hearing Examiner in the present appli-
14 cation recommended that the site not be utilized as a solid waste
15 dump and permitted only natural occurring materials such as earth,
16 rock and gravel to be used to fill the site. The applicant has
17 never had any intent to turn the subject site into a sanitary land
18 fill. Its only intent is to reclaim the property in the most effe-
19 cient and timely process. Without the ability to fill the subject
20 area with construction debris which has been the practice in the
21
past under the previous application, and which is a practice which
22
has continued up to the present date, Mt. Olivet does not have the
23
financial resources to complete the fill and grade operation using
24
only earth, rock and gravel. Nor does Mt. Olivet believe that such
25
a filling operation could be completed within the time period
26
allowed under this permit.
27
The applicant is agreeable to any condition restricting the
28
utilization of any materials normally permitted in a solid waste
29
dumping site with the exception of construction debris which has
30
been used to fill the site in the past.
31
32 Request for Reconsideration -4
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
1 The applicant did not address itself to the question of the
2 fill material since it concurred with the staff 's preliminary
3 report to the Hearing Examiner including Item 10 on Page 5 referred
4 to herein. The applicant requests that the Hearing Examiner modify
5 Conclusion No. 5 to correspond with the Planning Department's
6 Preliminary Report as set forth in Item 10, Page 5 as follows:
7 The site should not become a sanitary land
fill or consist of materials such as car bodies,
8 refrigerators, stoves or other bulk items and
plastics.
9
As an alternative to that recommendation, the applicant suggests
10
that the Hearing Examiner permit fill material consisting of
11
construction rubble layered with fill material from the subject
12
site as recommended in the previous application.
13
As described above, under the original application application
14
15
for the fill and grade operation of the subject site, the applicant
16
was using fill material consisting of construction rubble layered
17
with fill material from the subject site. Item 0 of the original
18
Preliminary Report of the Hearing Examiner dated April 12, 1977
19
provided as follows:
20
Each lift or layer of construction material
fill will be covered with suitable fill material
21 from the site at the completion of each work day.
emphasis added )
22
A literal reading of Conclusion 10 of the Hearing Examiner 's
23
decision would restrict redistribution of material necessary to
24
cover each layer of construction material fill. Since the granting
25
of the original permit, Mt. Olivet has back filled the construction
26
material with fill material from its own site. To now require it
27
to obtain fill material from an outside source would be prohibiti
28
vely expensive.
29
SUMMARY:
30
With the exceptions noted herein, the applicant is in full
31
32 Request for Reconsideration -5
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
I
1 agreement with the decision of the Hearing Examiner with regard to
2 this application. If the applicant is permitted to complete the
3 fill and grade operation on the site using the material that has
4 been used heretofore and back filling that material from the sub-
5 ject site, the Mt. Olivet property can be quickly and efficiently
6 reclaimed and -turned into additional cemetery and green space pro-
7 perty. The applicant requests that the Hearing Examiner reconsider
8 the items mentioned herein and make additional findings, conclu-
9 sions and conditions as are appropriate.
10 Respectfully submitted March o2.5- , 1981.
11 THEODORE H. GATHE, P.S.
12
13 B t /aye
Theodore H. Gathe
14 Attorney for Mt. Olivet Cemetery
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32 Request for Reconsideration -6
THEODORE H.GATHE,P.S.
Attorney at Law
4111 East Madison Street
Seattle,Washington 98112
206/328-2204
4.78
of I?
Sm
6-'-eeZ-ts
o THE CITY OF RENTON
MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 98055 j;Z IA ' c
o P. BARBARA.. Y. SHINPOCH. MAYOR • LAND USE HEARING EXAMINER ''-...
pitt,.
Ep SEPIE
Q FRED J. KAUFMAN. 235-2593 i
I
March 26, 1981
Mr. Ted Gathe Vv •
Attorney at Law
4111 E. 'Madison St.
Seattle,' WA 98112
RE: File No. SP-047-80; Mt. Olivet Cemetery Co. , Inc. Special IPermit; Request for Reconsideration. '
Dear Mr. Gathe:
I have reviewed your request for reconsideration and find that there is YI
Ino merit in the request, and, therefore, the request to modify the
decision is denied.
The subject proposal was processed as 'a fill and grade application
and no mention was made that the property was to be utilized as a
solid waste fill site. The Mining, Excavation and Grading Ordinance
distinguishes the two types of operations; fills are, processed
pursuant to Section 4-2316 while solid waste fills are reviewed
pursuant to the procedures of Section 4-2317. Section 4-2316(4)
specifies the type and nature of material permitted, and the
limitation contained within the Examiner's report is therefore
reasonable to provide for the public health, safety and welfare by
providing a stable, compact surface on the subject site.
A new appeal period has now been established for this matter to
expire on April 9, 1981 .
Yours very truly, j
4-144.,(.a.\"-•._..,
Fred J. Kaufman
Hearing Examiner
cc: Parties of Record i.
1.
Ij4 .. LAW OFFICES OFF:.
SETCHELL Si.GATHE .
LarrC Setchell,P.S.
Theodore H.Cathe,P.S.
Seth M.("Kelly")Fulcher, Jr. 64' ,j ''
April 8 , 1981 I)
a, _
0C 1 o a
Ms. Delores A. Mead 0AC`\eytOE •,City Clerk pt EEC
City of Renton c i,'5 ;,L
200 Mill Avenue South
Renton, Washington • 98055 1- = 'J+
Re: Appeal Filed by Mt. Olivet Cemetery,
Appeal of Land Use Examiner' s Decision dated
March 13, 1981, Special Permit; SP047-80
Dear Ms. Mead:
j--.__.--/Pursuant to Title 4, Chapter 30 , Renton City Code,
applicant Mt. Olivet' Cemetery Company, Inc. hereby appeals j
the March 13, 1981 decision of the Land Use, Hearing Examiner
for the City of Renton to the City Council and encloses the
proper filing fee in the amount of $25.00 . Included for the
Council ' s consideration of this appeal are the following:
1 . Mt. Olivet Cemetery Company, Inc. incorporates by
reference each and every item contained in its request for
reconsideration dated March 25, 1981.
2 . Mt. Olivet 'Cemetery Company, Inc. wishes to point
out that contrary to the Hearing Examiner' s finding that the
subject proposal was processed as a fill and grade operation
and not as a solid waste fill site, the Planning
Department ' s Preliminary Report to the Hearing Examiner with
regard to this application cited as .an applicable section of
the Zoning Code, Cnapter 23 , Mining Excavation and Grading
Ordinance. Chapter 23 includes ' the requirements with regard
to solid waste fills. Second, as pointed out in the
attached Request for Reconsideration, the Planning
Department ' s Report consistently referred to the previous
materials that were used as fill at the site under the 1977
permit and reiterated the restriction used in the previous
permit conditions prohibiting'sanitary land fill or fill
material consisting of plastics, car bodies, refrigerators,
and stoves. The applicant believes and the record bears out
that this application was in fact processed under the , solid
waste fill provisions. Had the applicant been aware that
this was in fact an issue at the hearing, or had the appli-
cant been aware that the Hearing Examiner intended to modify
or vary the recommendation by the Planning Department, the
applicant would have produced further testimony with regard
to the economic unviability of the fill and grade operation
Ms. Delores Mead
April 8 , 1981
Page Two
on 'the subject property using only natural materials.
Instead, the applicant agreed to all the terms and con-
ditions contained in the Planning Department' s recommen-
dation believing that the same would be adopted by the
Examiner.
3. Mt. Olivet Cemetery, Inc. is prepared to reapply
for special permit specifically under the solid waste fill
ordinance provisions . However, it is believed that this is
a repetitious and wasteful exercise for both the applicant
and the City. The Planning Department and the City have
been well aware of the materials used as fill on the Mt.
Olivet site and specifically approve the use of said
materials under the 1977 permit. Mt. Olivet is agreeable to
any condition restricting the utilization of materials nor-mally permitted in the solid waste dumping site with theexceptionofconstructiondebriswhichhasbeenusedto fill
the site in the past. Without the use of such debris , Mt.
Olivet cannot afford the cost of completing the project with
only natural fill.
The applicant respectfully requests that the City Council
revise the Hearing Examiner' s report and recommendation and
those specific conclusions and conditions as specifically
set forth in the attached request for reconsideration.
Respectfully submitted,
THEODORE H. GATHE, P. S .
By
24-1L
Theodore H . Gat
THG/dag
Enclosure
PLANNING AND DEVELOPMENT COMMITTEE
COMMITTEE REPORT
May 11 , 1981 _ '
APPEAL - MT. OLIVET CEMETERY, INC. SP-047-80 ' (Referred 4/20/81)
The Planning and Development Committee has considered the appeal filed by Mt.
Olivet Cemetery, Inc. from the Hearing Examiner's decision dated March 13, 1981
and, finding that the Hearing Examiner is in error as a matter of law in limit-
ing the fill material to consist only of natural materials instead of materials
as provided in Section 4-2317 of the City Code, the Committee recommends that
the City Council modify the decision as follows:
1 . Conclusion No. 10 should be modified to strike the words
or redistribution".
2. Conclusion No. 5 and Condition No. 8 of the decision should
Ci) I
be modified to read as follows: t
All fill material shall consist of natural materials such
as earth, rock and gravel and man-made construction debris
such as asphalt, brick, cement, wood and stumps and rebar."
3. Condition No. 9 should be modified to add the following language:
The annual license required by Section 4-2308 shall not be issued
until the Public Works Department shall have approved an engineer-
ing report to be provided by the applicant" pursuant to Section
4-2310 in which the Public Works Department is satisfied that the
applicant' s operations are in compliance with Section 4-2317."
ie-
Randy R hill , Chairman
Earl Clymer
John Reed
y ZONING-DEPARTMENTz . -_ tNG
NELSON diR
9 INU1111CIPALBtJILDING '. ZOOrI1MLl`Al/E'SO. :fEi1ON,WASH. 235-2540_'
O P9 A
1
e0 2 9• 19 82MSEti
RB ARA SI HOC
MAYOR
Mr. Jim Colt
Mt. Olivet Cemetery
P.O. Box 547
Renton, Washington
Subject: Special Permi"tom SP-047-80, Mt- Olivet Cemetery
Dear Mr. Colt: .
During our review of the proposed :P.U:D:-'for Monterey Terrace
Associates/ERADCO we reviewed all pendingand.;approved land use
applications in the general area: . It was.::discovered 'that-you. ..
have not complied with theaspecial permit':.requirement .#6 to
dedicate the necessary 60.foot right-of-way for the extension
of Edmonds Avenue N.E.
I!
We also checked the special permit for Rainier,'.Sand & Gravel
concerning the possible deletion of that requirement It '
appears that only that portion of. the-extension within their.
subject property was modified -and did not affect your property.
From the record, your attorney at that times,' Mr, Theodore Gathe,
was present and did not make -any inquiries or:objections to the i
Council action.
Since you accepted the special permit and have continued your
filling operation and did not file an appeal, we will expect you
to comply with all of the conditions and submit the necessarydeedstotheCitybyMay30, .1982. We believe that the situation
is just a simple oversight.
Also, while I was on vacation you made an inquiry as to the need
for permits to expand the cemetery. In the Hearing Examir,.r's
report for SP-047-80 he clearly states that it will be necessary
for you to go approval.h siteplan9 pproval. In addition, all ceme-
teries are required to obtain Conditional Use Permit approval
under Section 4-722(F) (2) (a) .
Sincerely,
Roger J. Blaylock
Zoning Administrator
MT. OLIVET CEMETERY COMPANY, INC.
P.O. BOX 547
RENTON,
WA 98055
206) 255-032:3
iy 13 , 1982
taring Examiner
ty of Renton
10 Mill Avenue , So.
nton, Washington 98055-
ar Mr. Kaufman,
This letter constitutes Mt . Olivet Cemetery ' s formal notice
appeal from any administrative decision determined to be such
the letter of April 29th, 1982 ; a copy of which is attached .
In discussions with Mr. Blaylock there appears to be ques-ons surrounding this letter. We are seeking a clarification
those items cited in his letter that is attached . But to
sure our right of appeal in the event this letter is deter-
ned to be an administrative decision this letter is our formal
quest appealing that decision.
c % y
mes L. Colt
esident
Olivet Cemetery Co: , Inc.
dkc
Roger Blaylock
William Bulchis
SERVING
KING
COUNT)
SINCE
1875
j,
may
1.,
MT. OLIVET`;.CEMETERY COMPANY, INC.
P.O. BOX .547
ti. RENTON,
WA 98055
206) 155-O32:3
July 15 , 1982 •
RECEIVED
CITY OF RENTON
Hearing Examiner • HEARING EXAMINER
City of Renton JUL151982
Municipal Bldg. AM .. PM200MillAve. , So.. 7181911411L121112%3:45546
Renton , WA 98055
Dear Mr . Kaufman,
The City has determined that :, their:Jetter . of. April 29th
is an administrative decision..and .with. regard to .our letter
of May 13, 1982 requesting an appeal of..' that decision, we here-
by request that the Hearing Examiner establish a date for a
hearing with regard to`'the; City 's position that the Cemetery
now dedicate the ERADCO-Kent-Highlands :easemeent to the City
for a public street.
At hearings held by the Planning and Development Commi-
ttee surrounding the new alignment of Edmonds Avenue , N . E . ,
the City determined that the requirement for the dedication
of property, as a matter of' law,:- to extend Edmonds Avenue , is
F
not reasonably related to permit applications and was not
necessary to make the application compatible with the object-
ives of the comprehensive plan.
Further testimony on March 13, 1981 in •file : #SP-047-80 H
indicates that Mt . Olivet agreed to dedicate the ERADCO ease-
ment for public street purposes only upon completion of the Iroadway . Further in Finding #11 , you found that the ease-
ment granted to ERADCO on our easement right-of-way be dedi-
cated for extending Edmonds Avenue ALONG THIS ALIGNMENT . Mr .
Blaylock also testified on paragraph 3 ,y page 2 , para ra h that the ded-
ication ication of the roadway would be necessary ONLY if the ERADCO
property is allowed to develop .
When we attended the Hearing with regard to the appeals
filed under the SP-099-80, for which no transcript was kept ,
the Planning and Development Committee and City departments
concurred that the conditions requiring the dedication of
properties as a matter of law, was not reasonable . They re-
SERVING
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J .THE CITY OF RENTONz-
MUNICIPAL BUILDING .200 MILL AVE.SO. RENTON, WASH. 98055
ma a
o MINNBARBARA':Y: SHINPOCH, MAYOR • LAND USE HEARING EXAMINER;:;.';.
p
om.
FREDO RENTON
J. KAUFMAN. 235-2593
GTY9TF0SEP r7
July 16, 1982
JUL '16 1982
M.
BUILDING/ZONINGMr. James Colt' ZONING DEPT.
Mt. Olivet Cemetery Company, Inc..
P.O. Box 547
Renton, WA 98057
RE: File No. SP-047-80; Mtrd Olivet. Cemetery Company Special Permit;
Appeal of Administrative Determination.
Dear Mr. Colt.
I have reviewed the correspondence and files pertaining to the above
entitled matter, and find that the, letters and facts cannot now be read
to constitute a timely appeal .
The "administrative decision" you are now attempting to appeal is , in
fact, related to a condition 'set forth in a'. decision -issued on March 13,
1981 . In fact, you did then appeal, from certain of, the conditions
required, but not the condition you now challenger: The time to appeal
that decision was within fourteen (14) days of that decision. It would
circumvent the time limits established by ordinance to permit an
administrative" appeal of the imposition of: conditions required by a
decision which had its own time limits for appeal .
If further information is required regarding this matter, you may
contact our office.
Sincerely,
vb-4—.1)f
Fred J . Kaufman
Hearing Examiner
cc: City Clerk
t
Building & Zoning Department
Mayor
City Attorney
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une 16, 1982
t• •..• •
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i
r. Jim Colt
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enton, WA 98055 * .• :.•,.....,;',.,., -*.
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ear Mr. Colt: . * ..• •: -' •...•••:!..:,•:.- -,:-',..•;'::::-.-:,••••:::••?„,
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ening the fulfillment
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lii-iie'd-.-,:itp.:Mt. • I. . :::::::::':;-:,:::‘,_•--::::•;':;,,
F. 7 ••
uiing the last month
if for .filling•:::gr4P.4...,,.- .
or so-,..We... .1.....: - . .diScUssion,:conce, .,...,... ,
d the
quirement No. 6 of the specia •permit:. • --:-.
you returned'-
047-80. Out of all, the general discussions,:.,,
i diiii6i4tioh7,4hat. ,.. . .the,SpeciAic.. 0. _ .. ,-.....:,,,,„,-.. :.
vidJ:,'.:.Still, havent,i
verbal T'.,1-::.4.:', ;e_:!;:fiorri-.just the
1.;.'
reached a finite , ..-.. „...:,::::.•;::::,. ...:.;;;;:,.. ..
ERADC0-," iii•::.197-,?.
lution. We would appreciate, seeing
easement:..10,,st9rie*ay• This
the ::•'..';•-,*::.:•:...,:::;1•.;.';;•'./....:''.
1
operty to Stoneway. or . 7 It :would-,--appear. .
point, that you
Examiner.naylhaliq,,F57.:ii..9e.9-P :::
i,,,iii:66iiic-.411y::: required
s
scussions, at this
as a dedication. The Hearing...
purposes. 'This mean . . ..... ::,,,..,,;‘..,. .:•,:•,, .'
s 1 i
not the same
t.''otiiiVet:•,;to:the:..CIty.,0.
dication of the 60 .feet .
from M....-,:.,,,,,,,,,,,,,,,,,,:•:.,...-,. ..-.-?-:: :......:,!--:,:-_-:,. : • . •
to the City of„Renton.for:roadw4Y•
at the title .would transfer: in.a .deed iforrn
as possible :C::1:Esiq",;• •••••••-"..} :,*•': :'''':.....-'::: . ••
i.-'.'•":'.: ':.. * 1
f Renton. . ,. „ .......,:_...,-.. . ,
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ease help us clarify this situation as soon
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icerely,
er'141 ". C7-78 LI" "
ger J. Blaylock
1
ling Administrator
B:cl
i
1
1
i
L
11 1
I 1*
OF i
0 BUILDING & ZONING DEPARTMENTz
RONALD G. NELSON — DIRECTOR
MUNICIPAL BUILDING 200 MILL.AVE.SO. RENTON, WASH. 98055 • 235-2540
co-
IBARA Y. SHINPOCH
MAYOR
July 1, 1982
Mr. Jim Colt
Mt. Olivet Memorial Cemetery
P.O. BOX 547
Renton, Washington 98055 .
RE: SP-047-80/MT. OLIVET MEMORIAL CEMETERY
Dear Mr. Colt:
Based upon review of the record of File No. SP-047-80, it is evident that Condition
No. 6 has not been complied with by the applicant. It required dedication of a sixty
60) foot right-of-way for a public street along your eastern property line for the
extension of Edmonds Avenue N.E. Unless the City of Renton receives the deed to'
this property in question by August 17, 1982, the Annual Fill License (B-8527) will not
be re-issued and the Special Permit for fill and grade, SP-047-80, will be revoked.
Sincerely,
le 91-1.. L'44
Roger J. Blaylock
Zoning Administrator
RJB:cl
4
August 4, 1982
Mr. Jim Colt
Mt. Olivet Memorial Cemetery
P.O.Box 547
Renton, Washington 98055
Subject: Dedication of Property and Water Rights .
of Mt. Olivet Memorial Cemetery
Dear Mt.. Colt:
In regard to our phone conversation of August 4, 1982,
we first discussed the dedication of the 60' wide'right
of way for the southerly extension of Edmonds Avenue
N.E. , as required by the Hearing Examiner, SP-047-80.
You stated that you would perform said dedication with
the condition that it would be required to be improved
to the city's standards.
The second item was concerning the irrigation water used
by the cemetery. You suggested that participation in an
agreement by the city was necessary, to assure that the
cemetery has a volume of water to equal• 200gpm and also,
that the possibility of a less volume ever happening would I
be unlikely.
The above is my recollection of the conversation. Please
respond with details so that your proposals can be review-
ed by the city staff and hopefully resolve these' pending
problems.
Sincerely, H
if
Ronald G. Nelson
Building & Zoning Director
RGN/plp
t
MT. OLIVET CEMETERY COMPANY, INC.
P.O. BOX 547
RENTON,
WA 98055
2061 255-0 32:3
CITY OF RENTON W
ist 16 , 1982 pr R «
7 of Renton J j
Mill Ave. So. AUG 16 1982
ton, WA 98055
SL LCiN.3,alfg; DE PT.
antion: Mr. Ron Nelson
r Mr. Nelson:
rican Memorial Services agreed that it would dedicate the exist-
alignment of the ERADCO Easement to the City of Renton in 1980,
n. this was to be required of Segale and Mt . Olivet .
that time we stated that we wanted the City to vacate the Blaine
nue entrance to the cemetery running through American Memorial' s
perty. We also agreeCto the dedication of the roadway only
er it was built, to assure that it would actually be constructed
a timely fashion and in accordance with the plans of Hugh Gold-
th which had been filed with the City at that time.
sently, there are several questions surrounding the actual loca-
n of the roadway and requirements as to the actual, construction
the roadway not meeting the original specifications and terms of
easement and other documents .
I stated earlier this month we want to see the roadway constructed
the standards represented. We also would like to see the work
pleted as soon as possible.
h regard to the City and ERADCO ' S dispute over possible ,alignment
h Edmonds Avenue N.E. , Mt . Olivet will agree to dedicate the por-
ns of its existing easement that are necessary to the final
roved alignment , subject to the acceptance of ERADCO and ' Stoneway
hold the existing easements .
Olivet will dedicate the easement when the City has :
1) Vacated to American Memorial, the Blaine Ave. entrance.
2) Completed construction of the easement roadway as
represented.
SERVING
KING
COUNTY
SINCE
1875
t
City of Renton
August 16 , 1982
Page two
We are willing to escrow the proper documents to insure the dedication
of this property when the City and ERADCO. and Stoneway have reached a
final and definite decision regarding alignment and construction.
The second subject which needed to be resolved surrounds the Cemetery ' s
water rights , the rapid urbanization of the watershed area and the City' s
position with regard to enforcement of it ' s ordinances and the protection
of the water rights .
It has been suggested by the Department of Ecology and developers , and
our engineers , that the simplest most direct method to eliminate the con-
fusion, potential liability and damage to the Cemetery' s water would be
for the City to agree that:
1) If the water available to the Cemetery under it ' s water rights
drops below the GPM guaranteed, then the City would offset the
loss by making city water available to the Cemetery, without
cost, to make up the loss .
2) That the cost of serving the Cemetery' s water needs be born by
the City if the water quantity or quality should become unusable
or unavailable.
3) -- That taxes and fees for use of City water on our 20+ acres be
waived by the City.
Assurances and agreements from the City would permit the City to allow
development of the watershed area in any manner they saw fit, with only
that emphasis the City feels is necessary to protect them from future
cost for Cemetery water.
In clearing up future questions between the City and the Cemetery, we
would like to see definite approval and the appropriate acceptance of all
of the Cemetery' s land for the cemetery uses it has always been intended.
If these questions can be resolved, and if the City determines the exact
direction it wishes to take regarding the easement roadway, the water
rights problem and the vacation of the present entrance, and the Cemetery
land as a whole, then we are most willing to sit down and discuss these
issues in a spi t of cooperation.
Very trill yours ,
M . 0 VE ` ' TERY, INC..
i . s es L. Colt, President
C :ks
I
August 31, 1982
Mr. Jim Colt
Mt. Olivet Cemetery Co. , Inc.
100 Blaine Avenue N.E.
Renton, Washington 98056
Subject: Annual License for Fill, B-8527 aiIM_ Water Needs
Dear Mr. Colts
Your letter, dated August 16, 1982, has been reviewed by the
staff and the City Attorney. The conditions, as stipulated
in your letter, for the dedication of the right of way, which
was required by the Hearing Examiner, Permit SP-047-80, and
the subsequent license, are not acceptable. •A specific and
required condition, such as this, is not negotiable.
Your annual license expired on August 16, 1982 but no enforce-
ment action was taken because you were working on a solution to
the problems associated with the renewal of said license. How-
ever, we will not be able to grant any further delays and the
requirements of SP-047-80 as well as those for the license, '
must be met immediately.
As to the second part of your letter on the water needs, the
city cannot participate in an agreement or make assurance as
is in your letter. It has been suggested that such an agree-
ment would be unconstitutional, as this would be donating the
city's credit or property to an individual.
The final item has been discussed with you on several occasions,
both verbally and in writing, that the expansion of the ceme-
tery
II
requires a conditional use permit under Section 4-748 of
the Municipal Code. Approval of a conditional use can be
granted only by the Hearing Examiner after a public hearing.
If you wish to pursue this matter, we will provide you with
the appropriate application forms.
Sincerely,
Ronald G: Nelson
Building & Zoning Director
RGN/plp
cc: Mayor Shinpoch
Larry Warren, City Attorney
March 1, 1982
Mr. James L. Colt
P.O. Box 547
Renton, Washington 98057
Subject: Fill Permit B-8527
Dear Mr. Colt:
1
This letter: is to inform you that your Permit B-8527 j
does not allow for removal of materials from the site.
Further violation of these restrictions imposed by the
subject permit could mean legal action.
Sincerely,
Ronald G. Nelson
Building Director
RGN/RCB/mp II
it
I
Y4
OF R E
BUILDING &:;ZONING;:=:DEPARTMENT
RON D G :NE. N -a_ AL L0 DIRECTOR
O MUNICIPAL BUILDIyNG.- 200 MILL AVER SO ;RENTON,WASH. 980,55 • 235-2540
0 co-
O Q. ,
947. 0 SEPSE •
4RBARA Y. SHINPOCH
MAYOR
ecember 21, 1982
r. James Colt
resident
Olivet Cemetery Co.
Est Office Box 547
nton Washington 98057
7BJECT: Fill and Grade License for 100Blaipe Avenue:Northeast_"'
ar Mr. Colt.
z our meeting of December 16, 1982, we discussed the.'hauZing operations of Bob McCann
ith reference to the subject site. You explained he'.washauling.`a number of loads out .
F the lower fill site to the top of. the site which.would be Used for cover of fill ma-
rial. You also stated there were a number of loads- goingto Bellevue to a construction
ite. I informed you again that there was no approval-for the hauling of materials from
ze site. You indicated you were aware of•this and would be making application immediate-
to the hearing examiner for a permit to do so. I concurred, this was the proper way
proceed.
flowing that meeting, I was informed by my staff that our last correspondence with you
itlining what was necessary to activate your license to fill had not been addressed by
u. We therefore have two problems; (1) hauling out of materials and without permit and
no active license to haul materials into the site. Both of these problems must be
rrected before you can proceed with your present operations. I consider fifteen (15)
sys ample time in which to accomplish at least the reactivation of the fill license. The
rmit to haul front the site will have to be approved by the hearing examiner and will
ake longer. The sooner you make your submittal the sooner we can resolve this problem.
incerely,
7N NELSON
iilding Director
I:mbt
2closure - Copy of October 25, 1982 Letter
July 19, 1982
Certified Mail
115672
Mr. Jim Colt
Mt. Olivet Memorial Cemetery
P.O. Box 547 ,
Renton, Washington 98055
Subject: Erosion Control at 100 Blaine Avenue N.E.
Re: Fill Permit B-8527•
Dear Mr. Colt:
It has been brought to the attention of this office that
the temporary erosion facilities required at this site j ,.
have been completely obliterated. Sediment from the site
is washing down the roadway and into the streams, as well
as mud from the trucks.
If this situation is not corrected to the satisfaction
of the City of Renton Public Works Department by August
1, 1982, this office will attach your bond for this pro- i
ject and will not renew your annual license.
If you have any questions concerning this matter, please
feel free to call.
Sincerely, P
111
Ronald G. Nelson
Building & Zoning Director
RGN/KCB/plp
cc: Richard C. Houghton
Public Works Director
OF R4,4,
A.
P.UBLIC WORKS.:..-DEPARTMENT
DESIGN/UTILITY.; ENGINEERING
Z.
n. MUNICIPAL BUILDING 200 MILL AVE.SO RENTON,WASH.98055
INTER-OFFICE: MEMORANDUM
17-E0 SEPtE
3ARBARA Y. SHINPOCH
MAYOR
September 15, 1982
To: Jim Hanson, Building Department. .
From: Don Monaghan, Design.Engineering
Subiect: Mt. .Olivet Cemetery Fill Permit SP-047-82 .
Before issuing a license renewal for the referenced project, the aooli- :
cant will be required to submit a revised .erosion%sedimentation control
plan. The previous plan was never properly :implemented,' resulting in
sediment blocking the existing drainage facilities and entering the
adjacent stream. Since the topography of the site has been altered
since the first issuance, the site plan should be 'revised• to show the
existing contours, details of proposed sedimentation' ponds, interceptor
ditches and down-stream sedimentation control ::
Because of the concern for maintaining the natural ground water within
the basin contributing to the Mt. Olivet stream, the fill material used
by the applicant should be closely monitored to. assure that the ground
water will not be impeded or contaminated. The material should be free
of any tires, metals, plastics, or asphaltic materials, and ,should be
of sufficient porosity to allow free percolation of the ground water.
oczAllerosion/sedimentation control structures should be inspected and
operational before resuming filling operations. Also, the revised
erosion/sedimentation control , as well as the ultimate drainage for the
area, should be designed so as to maximize the recharging of the under-
lying aquifer.
I
RLB:jft
October 25, 1982
Mr. James Colt
Mt. Olivet Cemetery Co. , Inc.
P.O.Box 547
Renton, Washington 98055
Subject: Fill and Grade License for
100 Blaine Avenue N.E.
Dear Mr. Colt:
Our review of your request for an annual license at. the
above referenced location, has not been approved. The-s'c1_W
following items need to be submitted and approved prior
to issuance:
1. The Public Works Department requires:
a. A revised erosion/sedimentation control
plan be submitted.
b. All erosion/sedimentation control struc-
tures be operational prior to resuming
filling operations.
c. Material used for filling should be of
sufficient porosity to allow free perco-
lation of ground water.
2. The Building &,Zoning Department requires that
the bonds required, which have expired, be
renewed and submitted for approval.
Filling of the site should not continue until a new annual
license- is obtained.
L
Thank you for your co-operation in this matter.
Sincerely,
James C. Hanson
Assistant Building Director
JCH:plp
4
Page 2.
Mr. James C. Hanson
October 25, 1982
Upon completion of construction of this roadway, the. Cemetery
would agree to permit the dedication of this street to the City
of Renton.
If the City will provide the Cemetery with the proper assur-
ances that the building permit will be issued to construct this
private access right-of-way, the Cemetery is prepared to proceed
immediately.
t nerely, ;
an/es L. Colt
Pr sident
M . Olivet Cemetery Co . , Inc.
JLC: dkc
MT° OLIVET
October 25 , 1982
OCT 26 1982
Mr. James C . Hanson
iv u DEPT.
City of Renton G;!} LOi*1:; v' '
Building & Zoning Department
Municipal Building
200 Mill Avenue, So .
Renton, Washington 98055
Dear Mr. Hanson,
When I came into your office today to discuss the necessary
improvements to the private extension of Edmonds Avenue, I was
surprised and pleased to see your letter of this date in the
file regarding the same condition.
In examing the approved plans for our fill and grade,
access road and drainage in your files , I requested (as I have
in the past) that the appropriate permit be issued to permit
Mt . Olivet Cemetery to construct this private access as orig-
inally approved. Over the past three months , we have installed
a variety of measures , which were approved by Mr . Bob Bray in
Engineering and which were temporary solutions at best . We have
further met with Mr . Bray and most recently with Mr . Bob Berg-
strom, to install additional measures as required by various
City Departments , to comply with our permit .
As you are aware, the City is requesting the dedication' of
this right-of-way to the City for construction of a City street .
I don' t know whether the City, upon dedication, is planning to
assume (the responsibility for maintenance and erosion control
along the dedicated right-of-way. (?)
The construction of the private right-of-way in accordance
with the plans designed by Hugh Goldsmith & Associates in the
Mt . Olivet Special Permit file would alleviate the erosion,
drainage and sedimentation problems and the problem of dirt and
mud entering the roadway . If the City will provide the Cemetery
with any additional requirements , i . e . : sidewalks , street lights ,
etc . , the Cemetery is prepared to submit the Goldsmith plans for
competitive bids and to pursue the immediate construction of
this roadway, as required for access to American Memorial and
Mt . Olivet Cemetery property.
The Cemetery would require written assurance that the
permit for construction would be issued by the City in a timely
fashion so that construction could be completed as soon as possible .
Cemetery, Mausoleum, Crematory & Gardens
Box 547 • 100 Blaine Ave. N.E., Renton, WA. 98057 • 206-255-0323
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1111115
OF 1R4,,
o. PUBLIC WORKS DEPARTMENT
U 4$ ® Z
DESIGN/UTILITY ENGINEERING • 235-2631
n a MUNICIPAL BUILDING 200 MILL AVE.SO. RENTON,WASH.98055
04 45,
017'ED SEPS
O
P
BARBARA Y. SHINPOCH
MAYOR
MEMORANDUM
April 4, 1983
TO: Dick Houghton
FROM: Don Monaghan
SUBJECT: Mt. Olivet Cemetery Fill Permit
A field inspection of the referenced site,April 1 , 1983, revealed the
following:
1 . The metal standpipe installed at the upper end of the 48" culvert
under the entrance road was installed too high, causing water to
back up through the closed system to the Segale Pit. This will
eventually cause the upstream system to become silted up.
2. A considerable amount of loose material has been dumped along
the stream bank upstream of the entrance road. The pond created
by installation of the standpipe has silted up and is overflowing
the standpipe.
3. Loose material has been piled along the west shoulder of the
entrance road and is eroding into the stream.
4. The temporary erosion sedimentation pond has failed, plugging
the catch basi.n and culvert at the entrance to the site.
5. No erosion control measures are presently in effect on the site.
Potential is great for a massive movement of material from the
site into the adjacent stream.
BB/ss
I
IRREVOCABLE LETTER OF CREDIT
3
TO: CITY OF RENTON
EVERGREEN Bank does hereby
establish this Irrevocable Letter of Credit in your favor for
the account. of Mt. Olivet Cemetery Co. , Inc.
2,000.00 (Two thousand and 00/100)to the extent of
Dollars , available by your sight draft drawn on this bank, at
Seattle,. Washington, accompanied by the following documents:
Responsible official statement that the improvements -
secured hereby have not been fully and timely installed.
Specifically:
Statement of a balance outstanding & unpaid by Mt. Olivet Cemetery Co. , Inc.
30 days after demand for payment by the City to Cemetery for cleaning of
street as required by SP-047-80, Decision #5.
This credit shall not expire or be revoked until sixty
1
60) days after the end of the deferral date of this project,
60 days after that deferral date being August 8; 1982
Authorized signature:
EVERGREEN BANK
i A.V.P. •
DAN CURTIS
January 12, 1983
Skyway Security Inc.
P.O.Box 1198
Mercer Island, Washington 98040
Attention: Ivars Arnits
Subject: Bonds for Mt. Olivet Fill and Grade SP-047-80
Dear Mr. Arnits:
Enclosed is a copy of the Bearing Examiner's decision
concerning SP-047-80. The bond amount indicated in item
2 has been determined to be $35,000.00. Mt. Olivet has
a bond posted for $25,000.00. A bond must be posted for
an additional $10,000.00, plus the $2,000.00 cash bond for
street cleaning as required in item #5.
For your reference, we have included a copy of our ordinance
section requiring such bonds. Our standard bond form should
be used which we have also enclosed.
We hope this will answer any questions you may have con-
cerning the bonding requirements in order to reestablish
the annual license for Mt. Olivet's permit SP-047-80.
Sincerely,
James C. Hanson
Assistant Building Director
JCH/plo
Enclosures
s
MT0 OLIVET
January 13 , 1983
CBTY OF RENTON
11
City of Renton
ei f?
Building Department JAN 13
200 Mill Avenue So . 1983
Renton, WA 98055
Attention : Mr. Ron Nelson
Dear Mr. Nelson :
Attached herewith is our bond from Bob McCann Enterprises in
the amount of $10 , 000 assuring his performance under our
permit No. SP 047-80 . After discussion in your office with 9
myself and Mr. McCann , I am sure that he is aware of the
1)
terms and conditions of our existing permit.
Our annual license application was accepted by your office
some months ago with our check in the amount of $200 for the
annual fee.
With respect to your letter and our discussions over the past
few months regarding the Kent -Highlands ' easement roadway and
the improvements thereon , the City of Renton on October 31 of
1979 issued a construction permit for this"right-of-way" ,
your permit No . P-2210 . The city further extended this permit
until March 1 , 1980 for the construction according to the
plans of Hugh Goldsmith which were submitted with the applica-
tion . You are aware that the existing roadway runs over land
owned by Puget Power and granted by easement to Kent Highlands
and their successor in interest ERADCO and we have further
provided you with the Deed of Trust and copy of the Easement
Agreement which runs across the eastern boundary of American
Memorial property .
The many problems with water runoff , errosion and siltation
in the right-of-way have been created by the City ' s failure
to require ERADCO or Kent Highlands to comply with the con-
struction permit and plans for this "public right-of-way" .
The City ' s repeated efforts to force American Memorial Services
or Mt . Olivet Cemetery to repair, correct , or maintain this
roadway which they neither constructed nor own , should be more
properly and legally directed at Kent Highlands and ERADCO .
The City ' s failure to require construction of this roadway
according to the plans submitted, has and is causing American
Memorial Services and Mt. Olivet Cemetery considerable
monetary damage . As you are aware , legal action is pending
in King County Superior Court to have this roadway constructed
properly according to the plans that were submitted . I feel
Cemetery, Mausoleum, Crematory & Gardens
Box 547 '• 100 Blaine Ave. N.E.; Renton, WA. 98057 • 206-255-0323
City of Renton Page 2
the City should make an effort to force compliance with
regard to the construction of the roadway under the permit
that wasissued to Kent Highlands and ERADCO, so that the •
problems surrounding. the easement and right-of-way can be
swiftly corrected .
Your recent letter indicating that the roadway .can be con-
structed in accordance with those plans submitted should be
considered in permitting • the'mecessary improvements to bring
this access up to appropriate standards .
Sincerely
Mt. p 'i' e
A
Co . , Inc .
e;. L. Colt , President
JLC/el
Enclosure: Bond
E' 181983 '°'
f o
J. SENDER: Complete items 1.d;and i. Add your,address;in the"RETURN T1 mice on
reverse.
1/The following service is requested(check one).
Show to whom and date delivered i
0 Show to whom,date,and address of delivery..—it
0'RESTRICTED DELIVERY
Show.to whom,and date delivered 4
RESTRICTED DELIVERY.
Show,to whom,date,.and address of delivery.$—I -,`(CONSULT.POSTMASTER FOR FEES) . -
2.'ARTICLE ADDRESSED TO: .-. 01 2
Mt. Olivet, ••Inc: '=:`;`:'`:' w v c0i SI
P.O:Box 547 m
N
994 A
1 Bentnn WAahind"nn 98057 10 d tn
3. ARTICLE'DESCRIPTION:n Uj .00 D 0
I R ERED NO: CERTIFIED NO.
1
INSURED NO. A v 0 .i
115668 03, el A. en PA.
11.4 O N
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PI R7 O1Ihavereceivedthearticledescribedabove. V
7 'SIGNATURE Addressee Authorized agent r-I A m p eau, •.
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I]A0Nd 391rVNi03 13N0'il ISNI ON
MT0 ®ILIVET RECEI VED
CITY OF RENTON
HEARING EXAMINER
MAR 231983March28, 1983 AM
PM
718t9II8,II112r 11213,415,E
Fred J. Kaufman, Hearing Examiner
City of Renton
Municipal Building
200 Mill Avenue South
Renton, Washington 98055
Re: SP-047-$0
Dear Mr. Kaufman:
In reviewing the report and decision of your office dated March 13,
1981 , the following excerpts from the report clearly indicate that the
cemetery intended and agreed to dedicate the 60 ft. easement granted to
Kent Highlands for public street purposes "ONLY UPON COMPLETION OF THE ,
ROADWAY". Testimony in the file by myself states in the final para-
graph on Page 1 ,
Regarding Condition No. 10, which recommends that the 60 ft.
easement granted to ERADCO by Mt. Olivet be dedicated to the
City of Renton for public street purposes, Mr. Colt stated
agreement to the dedication ONLY (emphasis added) upon com-
pletion of the roadway."
On Page 2, Para. 3, the Planning Department staff being represented by
Mr. Blaylock testified,
Mr. Blaylock indicated in the opinion of the department that dedica-
tion of the roadway would be necessary ONLY (emphasis added) if the
ERADCO property is allowed to develop.".
Based on this testimony, your findings state in Finding 11 , the last
sentence,.
The applicant has agreed to- so dedicate the property."
Comment: This is a correct statement when. examined in the context of
the above noted testimony, but dedication by the applicant was agreed to
ONLY upon completion of the roadway, and was to be required ONLY if the
ERADCO property is allowed to develop.
In your conclusions, Conclusion No. 7, you state,
The applicant will be required to dedicate to the city for road pur-
poses a 60 ft. wide right-of-way in or close to an
Cemetery, Mausoleum, Crematory & Gardens
Box 547 • 100 Blaine Ave. N.E., Renton, WA. 98057 • 206-255-0323
alignment 1, a southerly extension of Edmc =_ Avenue N.E."
Comments: The only information on which the examiner could base this
conclusion is the preceding testimony cited above regarding dedication
of the completed roadway ONLY upon its completion.
In your Decisions, Decision No. 6,
The dedications of a 60 ft. wide right-of-way to the city for
the southerly extension of Edmonds Avenue N.E."
was made as 'a condition for approval of the SPECIAL PERMIT (emphasis
added) . Your Decision No. 6 must be based upon the testimony referenced
above at the public hearing by both Mr. Blaylock and myself, which testi-
mony relates to the requirement for dedication upon completion of the
construction of the roadway and ONLY if the ERADCO project is permitted
to continue.
The City of Renton has issued an annual license and permitted the
operation under Sp-047-80 for over 2 years from the date of your decision
March 13, 1981 . This is correct and in accordance with all of the testi-
mony taken in the public hearing. The cemetery, the successor in interest
to the land, Kent Highlands, and the successor in interest to the easement,
ERADCO, all are willing to dedicate the appropriate property: 1 ) Mt.
Olivet when the roadway is constructed, 2) Kent Highlands when the road-
way is constructed and 3) ERADCO when and if the city permits their
development and requires the same as a condition of their permit.
As Mr. Blaylock testified, "Dedication of the roadway would be necessary
ONLY if the ERADCO property is allowed to develop." When the entire
record is reviewed, it indicates exactly what Mt. Olivet Cemetery agreed
to. If the city now wishes to change those representations made by the
city •(Mr. Blaylock's testimony) the Mt. Olivet Cemetery is entitled to
appeal this new representation, testimony, or administrative decision.
As you are aware, the ERADCO project presently is not being developed and
development is not permitted in the present zoning. Until ERADCO has
approval by the city for their project and permits are issued for the
same, there is a question as to-whether Kent Highlands or ERADCO will
construct a roadway to their project across the existing easement.
This letter requests that in light of the testimony given in the public
hearing, that you clarify your decision to conform to the record wherein
we agree to dedicate to the city only upon completion of the roadway and
that, according to the city, they require the dedication ONLY if and when
the ERADCO project is allowed to be developed. Any decision or require-
ment other than that based upon the actual testimony is improper and has
no foundation in law.
Fred J. Kaufman
The city has uaiayed since 1977 the reclamation and restoration of the
land adjacent. to Mt. Olivet Cemetery, a project which should have taken
three years has presently taken six. Your clarification, based on the
record, or the granting of a public hearing based on our appeal of this
new administrative decision is required to resolve this matter and. ,
permit the orderly development of this property which is in the best
interests of the general public.
cer
L. Co t, President
MT. OLIVET CEMETERY CO. , INC.
JLC/esl
D
cr;, lCBaildirE, -- !1 i :
Affidavit of Publication
STATE OF WASHINGTON
MAY •5 98
COUNTY OF KING as.
Cindy...Strupp being first duly sworn on
oath,deposes and says that she..is the chief...c.l ex'k of
THE DAILY RECORD CHRONICLE,a newspaper published six(6)times a i. '
week.That said newspaper is a legal newspaper and it is now and has been s• - PUBLIC HEARING,.
for more than six mouths prior to the date of publication referred to, RENTONyLAND USE • •!
printed and published in the English language continually as a newspaper HEARING EXAMINER. ;
published four(4)times a week In Kent,King County,Washington,and it is RENTONr WASHINGTON'•1
now and during all of said time was printed in an office maintained at the A::PUBLIC .HEARING..
aforesaid place of publication of said newspaper.That the Daily Record WILL-BE HELD•BY THE '
Chronicle has been approved as a legal newspaper by order of the Superior RENTON LAND: USE
Court of the County in which it is published,to-wit,King County, HEARING.EXAMINER-:AT:.',
HIS REGULAR MEETING,>
Public Hearin Notice IN THE COUNCIL CHAMB-
Washington.That the annexed is a E RS,':CITY•HALL; RE
t,NTON,WASHINGTON ON
MAY 3;1983,AT 9:00;A.M..r
TO,CONSIDER THE FOL- I
i•LOWING PETITIONS . :i
COLT/MT: 'OLIVET;-as it was published in regular issues(and q
not in supplement form of said newspaper) once each issue for a period Appeal ,by,James,.Cone r'
President,Mt.'OlivetCemet-".#
ery Co:,Inc.,file AAD•027=:'
of
one
consecutive issues,commencing on the 83,of an enforcement deck')1
sion of the -Building•,and
Zoning'Director to'require '2 2 nd day of April 19
83 ,
and ending the l the dedlcatlori'of-the'sixty_'41
I:(60)foot right:of-way along,
the easterly,boundary of Mt.,
Olivet Cemetery as required'1dayof19 ,both dates iunderspecalpermit,fileSP-inclusive, and that such newspaper was regularly distributed to its sub- 047-80,prior renewal of anscribersduringallofsaidperiod. That the full amount of the fee nual grading iicense;located.'
riorth and east ofthe'existing',
charged for the foregoing publication is the sum of S 9. 24 which jplatted Cemetery, etst of
has been paid in full at the rate of per folio of one hundred words for the N.E.3rd Street;in the vicinity
first insertion and per folio of one hundred words for each subsequent of,1.0O,Brine Avenue N.E.1
insertion. and the pcwertine:right-of
way:,.. • ._-'r , , I
0,11.,.... lei
l..
Legal`descriptions.of•the.)
Miles noted above are onfile?i
in the Renton Building and.j
Chief Clerk trig Depaitment:, .:- 'i
i'ALL INTERESTED-PER<'
SONS TO SAID PETITIONS i
Subscribed and sworn to before me this 2 2 nd day of ARE:INViTEO.•TO BE PRE,;j
SENT-AT,.THE- PUBLIC 1
HEARING ON MAY 3,1983;
AP .' l 1983 AT 9:00-A.M.TO EXPRESS j'
THEIROPINIONS: -
7.)?
Ronald 0.Nefeon
Notar ublic and for the State of Washington, i and,1
g ZoningiDirector
residing atg idt,King County. Pubiialted In the Daily Re-a
Pdera1 Way cord.-Ctirs icle.April •22,
1 fitO.Rtf '
Passed by the Legislature,1955,known as Senate Bill 281,effective June
t^ w` "
9th, 1955.
Western Union Telegraph Co. rules for counting words and figures,
adopted by the newspapers of the State.
VN#87 Revised 5432
NOTICE OF PUBLIC HEARING
RENTON LAND USE HEARING EXAMINER
RENTON, WASHINGTON
A PUBLIC HEARING WILL BE HELD BY THE RENTON LAND USE HEARING EXAMINER
AT HIS REGULAR MEETING IN THE COUNCIL CHAMBERS, CITY HALL, RENTON,
WASHINGTON ON MAY 3, 1983, AT 9:00 A.M. TO CONSIDER THE FOLLOWING
PETITIONS:
COLT/MT. OLIVET APPEAL
Appeal by James Colt, President, Mt. Olivet Cemetery Co., Inc., file
AAD-027-83, of an enforcement decision of the Building and Zoning
Director to require the dedication of the sixty (60) foot right-of-way along
the easterly boundary of Mt. Olivet Cemetery as required under special
permit, file SP-047-80, prior renewal of annual grading license; located
north and east of the existing platted cemetery, east of N.E. 3rd Street, in
the vicinity of 100 Blaine Avenue N.E. and the powerline right-of-way.
Legal descriptions of the files noted above are on file in the Renton Building and Zoning
Department.
ALL INTERESTED PERSONS TO SAID PETITIONS ARE INVITED TO BE PRESENT AT
THE PUBLIC HEARING ON MAY 3, 1983, AT 9:00 A.M. TO EXPRESS THEIR OPINIONS.
PUBLISHED : APRIL 22, 1983 Ronald G. Nelson
Building and Zoning Director
CERTIFICATION
I, JERRY LIND, HEREBY CERTIFY THAT THREE COPIES OF THE ABOVE DOCUMENTS
WERE POSTED BY ME IN THREE CONSPICUOUS PLACES ON THE PROPERTY
DESCRIBED ABOVE AS PRESCRIBED BY LAW.
ATTEST: Subscribed and sworn to before me, a
Notary Public, in and for the State of Washington
residing in the King County, on the 22nd day of
A '1, 1983.
114,-0)SIGNED:t,
C.(: ° )
City of Renton
Lill.c . ,
and •Us.e '
HeoE .,,
aring •E_ xaminer
i. .,
will• hold ,a
1)H .r, :.,ii:,,3
1. '
CITY C OUNCIL CHAMBERS ' °',CITY ,HALL;
ON ICY 3. 1983 BEGINNING AT 9:00 A.M. P.M.
CONCERNING: FILE ADD-027-83 •
REZONE , , From T-'' ,. -. o: ;- . . .:.... ': '1' - ,- .. ,. :,..H,',.:',. ,.'!
44,
SPECIAL / CONDITIONAL USE ,PERMI,
s
To4x 41#
SITE •APPROVAL L,
SHORT: PLAT/SUBDIVISION of
PLANNED UNIT DEVELOPMENT . r .4Ta,
LII VARIANCE FROM • ci ' '
fly:
rji m4i
APPEAL BY MT, GENET CE ETERY'C0; INC, OF AN RiFOR DECISION OF . BLD ONIN ' •,:e.
s`,
DIRECTOR TO REQUIRE-TEE DEDICATION OF TFE (60) FT, OF WAY ALa 6 .11t. , BDHY, OF-.v-
GENERAL LOCATIONADDRESS: T'AND O ADDRESS
PROPERTY LOCAILU IN THE VICINITY-OF 100 BLAINE AVEN N',E: & TEE POWERLI'NE RIGHT'.OF:WAY';} ''
1,, '.'
its'
ri}
jr,
LEGAL DESCRIPTION ON FILE IN THE RENTON BUILDING 8 ZONING••DEPARTMENT.; • ,`':, ;
ENVIRONMENTAL, ,DECLARATION 7 'ry`..
0 SIGNIFICANT . DNDN.. SIGNIFICANT;. •. ,
FOR FURTHER INFORMATION'L CALL THE 'CITY O•w"'IH$NTOtii""'"' `±°"''` ``
BUILDING& DEPARTMENT .ZONING:DEPARTEN •i235..2550 u t ,u' .•, <<<
THIS NOTICE NOT TO BE ,REMOVED: 'V11 ITHt {
RPROPEAUTHORRATION, v!
N i- ,• r
of
A
z THE CITY . OF RENTONtb
MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH.98055
o BARBARA' Y. SHINPOCH. MAYOR • LAND USE HEARING EXAMINER
9'O o
FRED J. KAUFMAN. 235-2593
4TcD SEPO'
P
D Building
City of Renton
nS
Zoning Dept.
DATE: April 1, 1983 J ll M[M[]W[
TO: Ron Nelson, Building Official
FROM: Fred J. Kaufman, Land Use Hearing Examiner APR 1 1983
SUBJECT: COLT/MT. OLIVET APPEAL: AAD-02.-83
Attached is an appeal received by this office regarding the above referenced matter. A ,
public hearing has been scheduled for Tuesday, May 3, 1983 at 9:00 a.m. in the Council
Chambers. Testimony from City staff concerning this matter may be required.
Please forward to this office not later than 5:00 p.m. April 15, 1983, all pertinent
information, including applications and correspondence.
FJK se
Attachment
0070E
cc: Mayor
City Attorney
City Clerk
Roger Blaylock, Zoning Administrator
r
MT0 OLIVET RECEIVED
CITY OF RENTON
HEARING EXAMINER
A74MA•
I8 lliI2
R 2
811 19832,3 4 5 6
March 28, 1983
8 9
Fred J. Kaufman, Hearing Examiner
City of Renton
Municipal Building
200 Mill Avenue South
Renton, Washington 98055
Re: SP-047-$0
Dear Mr. Kaufman:
In reviewing the report and decision of your office dated March 13,
1981 , the following excerpts from the report clearly indicate that the
cemetery intended and agreed to dedicate the 60 ft. easement granted to
Kent Highlands for public street purposes "ONLY UPON COMPLETION OF THE
ROADWAY". Testimony in the file by myself states in the final para-
graph on Page 1 ,
Regarding Condition No. 10, which recommends that the 60 ft.
easement granted to ERADCO by Mt. Olivet be dedicated to the
City of Renton for public street purposes, Mr. Colt stated
agreement to the dedication ONLY (emphasis added) upon com-
pletion of the roadway."
On Page 2, Para. 3, the Planning Department staff being represented by
Mr. Blaylock testified,
ti
Mr. Blaylock indicated in the opinion of the department that dedica-
tion of the roadway would be necessary ONLY (emphasis added) if the
ERADCO property is allowed to develop."
Based on this testimony, your findings state in Finding 11 , the last
sentence,
The applicant has agreed to. so dedicate the property."
Comment: This is a correct statement when. examined in the context of
the above noted testimony, but dedication by the applicant was agreed to
ONLY upon completion of the roadway, and was to be required ONLY if the
ERADCO property is allowed to develop.
In your conclusions, Conclusion No. 7, you state,
The applicant will be required to dedicate to the city for road pur-
poses a 60 ft. wide right-of-way in or close to an
Cemetery, Mausoleum, Crematory & Gardens
Box 547 • 100 Blaine Ave. N.E., Renton, WA. 98057 • 206-255-0323
Fred J. Kaufman Page 2
alignment with a southerly extension of Edmonds Avenue N.E."
Comments: The only information on which the examiner could base this
conclusion is the preceding testimony cited above regarding dedication
of the completed roadway ONLY upon its completion.
In your Decisions, Decision No. 6,
The dedications of a 60 ft. wide right-of-way to the city for
the southerly extension of Edmonds Avenue N.E."
was made as 'a condition for approval of the SPECIAL PERMIT (emphasis
added) . Your Decision No. 6 must be based upon the testimony referenced
above at the public hearing by both Mr. Blaylock and myself, which testi-
mony relates to the requirement for dedication upon completion of the
construction of the roadway and ONLY if the ERADCO project is permitted
to continue.
The City of Renton has issued an annual license and permitted the
operation under Sp-047-80 for over 2 years from the date of your decision
March 13, 1981 . This is correct and in accordance with all of the testi-
mony taken in the public hearing. The cemetery, the successor in interest
to the land, Kent Highlands, and the successor in interest to the easement,
ERADCO, all are willing to dedicate the appropriate property: 1 ) Mt.
Olivet when the roadway is constructed, 2) Kent Highlands when the road-
way is constructed and 3) ERADCO when and if the city permits their
development and requires the same as a condition of their permit.
As Mr. Blaylock testified, "Dedication of the roadway would be necessary
ONLY if the ERADCO property is allowed to develop." When the entire
record is reviewed, it indicates exactly what Mt. Olivet Cemetery agreed
to. If the city now wishes to change those representations made by the
city (Mr. Blaylock's testimony) the Mt. Olivet Cemetery is entitled to
appeal this new representation, testimony, or administrative decision.
As you are aware, the ERADCO project presently is not being developed and
development is not permitted in the present zoning. Until ERADCO has
approval by the city for their project and permits are issued for the
same, there is a question as to-whether Kent Highlands or ERADCO will
construct a roadway to their project across the existing easement.
This letter requests that in light of the testimony given in the public
hearing, that you clarify your decision to conform to the record wherein
we agree to dedicate to the city only upon completion of the roadway and
that, according to the city, they require the dedication ONLY if and when
the ERADCO project is allowed to be developed. Any decision or require-
ment other than that based upon the actual testimony is improper and has
no foundation in law.
Fred J. Kaufman Page 2
The city has delayed since 1977 the reclamation and restoration of the
land adjacent. to Mt. Olivet Cemetery, a project which should have taken
three years has presently taken six. Your clarification, based on the
record, or the granting of a public hearing based on our appeal of this
new administrative decision is required to resolve this matter and
permit the orderly development of this property which is in the best
interests of the general publi .
i cer y
J L. Colt, President
MT. OLIVET CEMETERY CO., INC.
JLC/esl
k
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