HomeMy WebLinkAboutLand Use Petition & LUPA Appeal Under RCW 36.70C FILED
2025 MAR 26 09:46 AM
KING COUNTY
SUPERIOR COURT CLERK
E-FILED
CASE #: 25-2-09551-7 SEA
IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
JAMES COLT; MT. OLIVET CEMETERY
CO. INC; CASE NO.
Petitioners LAND USE PETITION AND LUPA
APPEAL UNDER RCW 36.70C
v.
CITY OF RENTON; MARVIN F. POER
2 AND COMPANY LLC.
3
Respondents.
4
5
6 James Colt and Mt. Olivet Cemetery Co., Inc. ("Petitioners") by and through their
7 undersigned counsel, petition this Court for review of a final land use decision by the City of
8 Renton. Petitioners allege as follows:
9 I. PARTIES
'° 1.1 Petitioners are James Colt and Mt. Olivet Cemetery. Petitioners address is 100
Blaine Avenue NE, Renton, WA, 98056. Petitioners are represented by the undersigned lawyer,
'2 Julie M. Pendleton of Lasher Holzapfel Sperry & Ebberson PLLC. Ms. Pendleton's mailing
address is:
'4 Julie M. Pendleton
Lasher Holzapfel Sperry&Ebberson PLLC
'5 601 Union Street Suite 2600
'6 Seattle,WA 98101
ATTORNEYS AT LAW
L A S H E R 2600 Two UNION SQUARE
H O L Z A P F E L 601 UNION STREET
S P E R R Y & SEATTLE WA 98101.4000
E B B E R S O N TELEPHONE 206 624-1230
LAND USE PETITION AND LUPA APPEAL- 1 Fax 206 340-2563
1.2 The owner of the property at issue as identified by the local jurisdiction's written
decision is Marvin F. Poer and Company,LLC. The landowner's mailing address is:
13155 Noel Road, Suite 100
Three Galleria Tower
Dallas, TX 75240
1.3 The local jurisdiction whose land use is at issue is the City of Renton. Phil A.
Olbrects was the City of Renton Hearing Examiner who signed the final land use decision that
Petitioners are appealing. The mailing address for the City of Renton is 1055 South Grady Way,
Renton,WA 98057.
o II. JURISDICTION,VENUE,AND STANDING
2.1 This Court has jurisdiction over this petition and appeal pursuant to the Land Use
2 Petition Act("LUPA"), RCW 36.370C.030.
2.2 Venue is proper because the land use decision at issue was made by the City of
a Renton and concerns real property located within King County, Washington.
5 2.3 Petitioners have standing pursuant to RCW 36.70C.060(2) because they would be
6 aggrieved or adversely affected by the land use decision being challenged herein; their asserted
7 interests are among those that the local jurisdiction were required to consider when it made the
8 land use decision; a judgment in favor of the Petitioners would substantially eliminate or redress
9 the prejudice to them caused by the land use decision; and Petitioners have exhausted their
!o administrative remedies.
!I
III. STATEMENT OF FACTS
!2
,3 3.1 Petitioners reallege the foregoing paragraphs as though fully set forth herein.
'4 3.2 On May 6,2024,the City of Renton issued a Notice of Violation against Petitioners
15 for violation of Renton Municipal Code ("RMC") 4-4-130 D.2, Tree Removal or Vegetation
!6 Management Without the Required Permit. Exhibit A. On May 13, 2024, Petitioners contacted
ATTORNEYS AT LAW
L A S H E R 2600 TWO UNION SQUARE
H O L Z A P F E L 601 UNION STREET
S P E R R Y & SEATTLE WA 98101-4000
E B B E R S O N TELEPHONE 206 624-1230
LAND USE PETITION AND LUPA APPEAL-2 Fax 206 340-2563
the undersigned's office and believed that the undersigned's firm was handling appealing the
Notice of Violation.
3.3 However,there was a miscommunication at the undersigned's office and the Notice
of Violation was not appealed within the 15-day requirement. As soon as the error was discovered,
the Notice of Appeal was filed, on October 29, 2024.
3.4 The City of Renton moved to dismiss the appeal as untimely. The Renton City
Hearing Examiner, after considering briefing on the matter, agreed. Petitioners' appeal was
dismissed as untimely via final written decision on March 6,2025. Exhibit B. This appeal follows
pursuant to LUPA.
IV. STATEMENT OF ERRORS
4.1 Petitioners reallege the foregoing paragraphs as though fully set forth herein.
4.2 Error 1: holding that equitable tolling was not available to Petitioners in this
3 circumstance. The Hearing Examiner found that that in LUPA appeals, the only example of
4 equitable tolling that could extend the timeline to file an appeal of a land use decision was when
the untimeliness was attributable to misdirection from the decisions-making county or city. In
other situations where the client exercises diligence and the attorney misses an appeal deadline,
Courts have exercised equitable tolling to extend the statute of limitations on filing deadlines. See
e.g.Matter of Fowler, 197 Wn.2d 46, 50,479 P.3d 1164(2021). Here,Petitioners timely tendered
of the appeal to counsel was diligent, and they relied on counsel to file the appeal timely.
9
Moreover, CR 60 is available to instruct Court's in LUPA proceedings and under the `excusable
:0
neglect' standard of CR 60, missing the filing deadline due to Petitioners reasonable reliance on
counsel would be grounds to allow the appeal to move forward. The Hearing Examiner erred by
not applying equitable tolling and allowing the appeal of the Notice of Violation to be heard on
the merits.
,4
4.3 Error 2: dismissing Petitioners' appeal as untimely. The Hearing Examiner
dismissed Petitioners' appeal of the Notice of Violation as untimely because the appeal was not
6 filed within 15 days. As more fully stated herein, Petitioners failure to timely file the appeal of
ATTORNEYS AT LAW
LA S H E R 2600 Two UNION SQUARE
HOLZAPFEL 601 UNION STREET
S P E R R Y & SEATTLE WA 98101-4000
E B B E R S O N TELEPHONE 206 624-1230
LAND USE PETITION AND LUPA APPEAL-3 Fax 206 340-2563
the Notice of Violation was through no fault of their own. They timely turned over the Notice of
Violation to counsel, and through miscommunication as the undersigned's office, the appeal was
not filed until October 29, 2024. The Hearing Examiner erred by not applying equitable tolling
and/or the excusable neglect standard from CR 60 and finding that the deadline being missed did
not bar that Hearing Examiner from considering the appeal's merits.
V. RELIEF REQUESTED
Petitioners request the following relief:
1. That this Court grants its LUPA appeal,reverses the Order Dismissing Petitioners'
appeal of the Notice of Violation, and allows Petitioners appeal of the Notice of Violation to
0
proceed on the merits;
2. For an award of attorneys' fees and costs both in law and equity;
2 3. For the judgment to conform to the pleadings.
4. For other relief as this Court deems just and equitable.
4
5 DATED this 26th day of March, 2025.
6 LASHER HOLZAPFEL
SPERRY& EBBERSON PLLC
7
y ,
eVAA ek."1/91
Julie M. Pendleton,WSBA No. 52882
Attorney for James Colt,Mt. Olivet Cemetery
Co, Inc.
12
:3
'4
'5
'6
ATTORNEYS AT LAW
LASHER 2600 TWO UNION SQUARE
HOLZAPFEL 601 UNION STREET
SPERRY & SEATTLE WA 98101-4000
EBBERSON TELEPHONE 206 624-1230
LAND USE PETITION AND LUPA APPEAL-4 Fax 206 340-2563
EXHIBIT A
Notice of Violation
and Order to Correct Armondo Pavone Mayor •
E
Community&Economic Development Brianne Bannwarth, Interim Administrator
Issued To: Date: 5/6/2024
Code Case No: CODE24-000261
James Colt Owner(Tax-Payer): MARVIN F POER AND
Mt Olivet Cemetery Co Inc COMPANY
Po Box 547 Violation Address:
Renton. WA 98057 300 Vuemont PI NE
Renton, WA 98056-3808
An inspection of the above premises on 05/06/2024 by a Code Compliance Inspector revealed violation(s) of the
City of Renton Municipal Code and Ordinances listed below Compliance or corrective action must be completed
by 5/22/2024.
The violation(s) listed below are deemed a Class 1 Civil Infraction pursuant to Chapter 7.80 RCW, and any such
person shall be assessed a monetary penalty of up to two hundred fifty dollars($250.00) per violation. Each day or
portion of a day the violation(s) remain shall constitute a separate offense
If voluntary compliance is not achieved, a Criminal Citation MAY be issued [RMC1-10-3.E]. The penalty for a
criminal Citation, upon a finding of guilt shall have a mandatory minimum sentence of five (5)days in jail without
the option of electronic home detention. and the minimum penalty for the first violation shall be five hundred
dollars ($500). the second criminal violation shall have a mandatory minimum sentence of fifteen (15) days in jail
without the option of electronic home detention. and the minimum penalty for the second violation shall be six
hundred twenty five dollars ($625). the third criminal violation for any individual shall have a mandatory minimum
sentence of thirty (30) days in jail without the option of electronic home detention, and the minimum penalty for
the third violation shall be seven hundred fifty dollars ($750) [RMC1-10-7.A.2].
Page 1 of 4
VIOLATION 1: RMC 4-4-130 D Tree Retention
Reported Date Issued Date Latest Investigation Date
5/7/24 5/7/24 5/6/24
Violation Note: Total. Base violation notice $250 +$2000.00 per tree fine$48,250.00
Code Cited: RMC 4-4-130 D.2. Tree Removal or Vegetation Management Without the Required Permit
a Tree removal in excess of the limits established in RMC 4-4-130 C.9, Minor Tree Removal
Activities, is prohibited unless a routine vegetation management permit or land development
permit has been granted
b Routine vegetation management on an undeveloped property without a routine vegetation
management permit is prohibited
c Removal of a landmark tree. as defined in RMC 4-11-200, Definitions T, is prohibited unless
routine vegetation management permit or land development permit has been granted
Code Text: Tree replacement and mitigation shall be conducted in accordance with the following
requirements (RMC 4-4-130J 4)
a Tree Mitigation Fee The Administrator may impose a mitigation fee of up to two
thousand dollars ($2,000 00) per tree or per violation, plus the installation of replacement
trees and/or paying a fee in lieu, pursuant to subsection c. and e. below, for the equivalent
credit value of the tree(s) removed.
b. Tree Violation Measurement. If a tree has been removed and only the stump remains, the
size of the tree shall be determined by the diameter of the top of the stump. unless prior
documented record from an ISA certified arborist was completed within one year of the date
of violation
c Tree Replacement Quantity. For each tree that was improperly cut in violation of code,
replacement planting shall occur at a rate based on the credit value of the tree(s) removed
pursuant to RMC 4-4-130H 1 b.v
d. Tree Replacement Standards: The Administrator shall have the authority to approve,
deny, or restrict the tree species for proposed replacement trees. Replacement trees shall
be planted with a minimum size of two-inch (2")caliper, or evergreen trees with a minimum
size of six feet(6') tall. The City may require a bond to ensure the survival of replacement
trees
e Tree Replacement Fee in Lieu: If tree replacement is infeasible on site. payment into the
City's Urban Forestry Program fund may be approved based on the current market value of
the replacement trees and the labor to install them The City shall determine the value of
replacement trees
Page 2 of 4
•
Corrective Action: On Wednesday April 24th, 2024, the Inspecting Arborist received a phone call from
Engineering Specialist Piero DAmore about a contractor cutting down trees in a greenbelt
between Blaine Ave NE and NE 3rd St The City of Renton Inspecting Arborist Gabriella
Golzarian arrived within 10 minutes and found AJ&J Tree Service and Landscaping in the act
of cutting trees down
Given the severity of the damage. that the work was done in critical areas (both steep
slopes and wetlands) . a $2000 fine per tree should be levied as a starting point. Given the
complication of trying to force the violator to plant trees on property which isn't even his. the
recommendation is that replanting not even be offered as an option
Total' Base violation notice $250 +$2000 00 per tree fine $48,250.00.
Contact Urban Forestry's Ian Gray at 425-430-6601 for further question.
Fees: Description Amount
CODE - First Violation -Trees Removed $48,250.00
Violation 1 Subtotal. $48.250.00
Total Amount Due: $48.250.00
Payment of$48,250 00 must be made within fifteen (15)days of the date of this Notice of Violation All city codes
listed on this Notice of Violation must be brought into compliance within fifteen (15) days of the date of this Notice
of Violation Invoice to follow
I certify under penalty of perjury under the laws of the State of Washington that I have issued this Notice of Violation
on this date and at the location stated above I certify that I believe by a preponderance of the evidence that the
violator committed the above violation(s)
Signed tLG /)1316Date 05-07-24
Issued By:Eric Petzold
Code Compliance Inspector
425-430-7277
epetzold@rentonwa gov
Page 3 of 4
Code Case No: CODE24-000261 Date: 5/6/2024
Violation Address: Total Amount Due: $48,250.00
300 Vuemont PI NE
NOTICE OF RENTON MUNICIPAL CODE VIOLATION
The City has elected to establish a non-judicial hearing and determination system to enforce Renton Municipal Codes(RMC)
civil code violations_ Therefore a code violation penalty, consistent with RMC 1-3-2.P is imposed. not including any costs,
fees or assessments You may respond in the following manner
I deny creating, permitting to exist, maintaining or failing to eliminate the violation(s)and I am requesting a hearing to
contest this Notice of Violation. Appeal requests must be received by the Renton City Clerk's office within 15 days of the
date of this Notice of Violation Please send me a hearing date I promise to appear on that date The administrator must
prove by a preponderance of the evidence that I committed the violation I understand that under RMC 1-3-2.G that the
administrator shall decide whether the opportunity to be heard will be only in writing or in person, or both. The city is not
required to call witnesses to testify at the hearing. Pursuant to RMC 1-3-2 K,failure to attend the scheduled hearing
makes the Notice of Violation final,and I may be subject to additional costs if I fail to withdraw or resolve my appeal prior
to the hearing date I also understand that the city has not waived any rights or remedies under the law.
Appeals should be mailed to City of Renton
Attention: City Clerk
1055 S Grady Way
Renton,WA 98057
El I admit that I have created. permitted to exist, maintained or failed to eliminate the violations)and do not need or want any
kind of hearing As a result. I have enclosed a check or money order(do not send cash)in the amount of$
understand I am required to bring the property into compliance with City of Renton Municipal Code. I also understand that
if compliance is not achieved I may be issued additional Notice of Violation with increasing penalties,and or criminally
prosecuted NSF checks will be treated as failure to respond
Payment should be made to City of Renton
Attention: 1st Floor Finance
1055 S Grady Way
Renton,WA 98057
Complete information below (PLEASE PRINT
Name
Street or P O. Box:
City State: _ Zip.
Telephone: Home. Work.
Email'
Signature of Violator. Date
Page 4 of 4
EXHIBIT B
1
2
3 THE HEARING EXAMINER OF THE CITY OF RENTON
4
IN RE: Code No. CODE-24-000261
5
6 James Colt; Mt. Olivet Cemetery Co. Inc.
7 ORDER DISMISSING APPEAL AS
Administrative Appeal of Notice of UNTIMELY
8 Violation
9
10
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12
13
14
15 Mr. Colt's appeal of a Notice of Violation (NOV) issued for CODE-24-000261 is
16 dismissed as untimely.
17 Evidence Relied Upon
18
1. November 13, 2024 letter to Mr. Colt from Jason Seth dated November 13, 2024
19 along with 28 pages of attachments.
20
21 2. December 3, 2024 email from Elizabeth Luksetich with six pages of
attachments.
22
23 3. December 6, 2024 email from Patrice Kent with 7 attachments.
24 Findings of Fact
25
1. The City of Renton (City) issue four NOVs against James Colt and Mt. Olivet
26 Cemetery Co. Inc. under the same file number for the same tree cutting
27 violations on May 7, 2024, June 12, 2024, August 13, 2024, and finally on
28 September 4, 2024.
29 2. Mr. Colt filed an appeal of one of the NOV on October 29, 2024.
30
Order of Dismissal
PAGE 1
3. On November 7, 2024 the City emailed a request to the examiner to have the
2 appeal dismissed as untimely. This request was forwarded to Mr. Colt on or
about November 13, 2024.
3
4 4. Mr. Colt's attorney,Julie Pendleton, submitted a letter response on December 3,
2024. Ms. Pendleton explained that the appeal was only untimely due to a
5 miscommunication in her office as to which attorney would be handling the
6 appeal. Ms. Pendleton noted that Mr. Colt had asked her office to handle the
7 appeal on May 13, 2024 but that through no fault of Mr. Colt the appeal was
filed late.
8
9 Discussion
0 Mr. Colt asserts that his untimely appeal should be accepted because it was untimely
11 due to excusable neglect under CR 60. CR 60 is not found to apply to untimely land
use appeals.
12
13 Mr. Colt relies upon a couple CR 60 cases in which default judgments are overturned
14 due to the excusable neglect of counsel. Civil rules can provide guidance in resolving
procedural issues in administrative land use appeals. However it's highly questionable
15 whether CR 60 by its own terms applies to the timely filing of complaints or appeals. If
16 its terms are met, CR 60b authorizes a court to "...relieve a party or the party s legal
representative from a final judgment, order, or proceeding.." In this case Mr. Colt is
17 not requesting that he be relieved any such judgment, order or proceeding. He is asking
18 relief from an obligation to file a timely appeal.
19 Although civil rules can serve as a useful source of procedural guidance in the absence
20 of anything more direct, in this case the Land Use Petition Act(LUPA), Chapter 36.70C
21 RCW, is more directly applicable. Code enforcement decisions qualify as land use
decision under LUPA. See RCW 36.70C.020(2)(c). The filing of LUPA appeals for
22 land use decisions is governed by RCW 36.70C.040(2). That statute provides that a
23 "land use petition is barred, and the court may not grant review, unless the petition is
timely filed..." The City's NOV appeal filing requirement reflects this language in
24 providing that "[a]ny request for a hearing that is not timely filed with the City.." shall
25 be denied. RMC 1-10-5B 1.
26 Washington courts have consistently held that the procedural requirements of LUPA
27 must be strictly met before the superior court's jurisdiction may be properly invoked.
28 See, e.g., Durland v. San Juan County, 182 Wn.2d 55, 67, 340 P.3d 191 (2014) ("[W]e
require strict compliance with LUPA's bar against untimely or improperly served
29 petitions.");RST P'ship v. Chelan County, 9 Wn.App. 2d 169, 175, 442 P.3d 623 (2019)
30 ("The petitioner must strictly meet the procedural LUPA requirements before properly
Order of Dismissal
PAGE 2
1 invoking a trial court's appellate jurisdiction under the act."); Citizens to Pres. Pioneer
2 Park, LLC v. City of Mercer Island, 106 Wn.App. 461, 467, 24 P.3d 1079 (2001) ("The
procedural requirements of the Land Use Petition Act (LUPA) have to be strictly met
3 before a trial court's appellate jurisdiction under the Act is properly invoked.").
4
LUPA case law also makes clear that its strict construction only applies to jurisdictional
5 requirements such as filing deadlines. "While courts have strictly construed the timing
6 and parties that must be served in a LUPA proceeding, the courts have not elevated
other procedural requirements to a jurisdictional threshold.'Prosser Hill Coalition v.
Spokane County, 176 Wash. App. 280 (Wash. Ct. App. 2013). This distinction further
8 supports the conclusion that principles of excusable neglect under CR 60 may apply to
9 other portions of a LUPA proceeding, but they do not apply to appeal filing deadlines
because they are jurisdictional.
10
11 Like the timing requirements for the filing of LUPA appeals, the timing requirements
for administrative appeals of NOVs are jurisdictional and must be strictly construed.
12 No LUPA case law has ever recognized an exception for excusable neglect or anything
13 similar to CR 60 grounds for relief The only potential grounds for relief from filing
14 deadlines that's been recognized under LUPA has been equitable tolling where
untimeliness is essentially attributable to misdirection from the decision-making county
15 or city. Nickum v. City of Bainbridge Island, 153 Wn. App. 366 (2009).
16
Mr. Colt filed failed to file his appeal within 15 days of the NOV under appeal as
17 required by RMC 1-10-5B1. Excusable neglect or any other grounds under CR 60 that
18 doesn't qualify as equitable tolling is not grounds for extending the deadline. The
appeal must be dismissed as untimely.
19
20 Order
21 Mr. Colt's appeal of the NOV for the above-captioned matter is dismissed as untimely
22 for failing to meet the appeal deadline set by RMC 1-10-5(B)(1).
23
24 ORDERED this 5th day of March 2025.
25
26
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28 it A.Olbrects
City of Renton Hearing Examiner
29
30
Order of Dismissal
PAGE 3
•
2 Appeal Right
3 This order is a final decision and is appealable to superior court within 21 days of the
4 issuance of this order as governed by the Washington State Land Use Petition Act,
Chapter 36.70C RCW.
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Order of Dismissal
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