HomeMy WebLinkAbout05-14-2025 - Improper Appeal Letter to Jill Ding - CSD AttorneysCSD ATTORNEYS
AT LAW
May 14, 2025
VIA ELECTRONIC MAIL,
REGULAR U.S. MAIL,
AND CERTIFIED U.S. MAIL,
RETURN RECEIPT REQUESTED
City of Renton
Planning Department
Attn: Jill Ding
1055 S Grady Way
Renton, WA 98057
Re: Improper Appeal Against WinCo Foods, LLC Building Permit #1324004855
Permit No.:
Applicant:
Ms. Ding,
B24004855
WinCo Foods, LLC
Timothy D. Schermetzler
Attorney
tschermetzler@csdlaw.com
d. 360.306.3011
We write on behalf of our client, the above -identified Applicant, WinCo Foods, LLC ("WinCo"), whose
building permit #1324004855 ("Permit") is the subject of a purported appeal filed on behalf of Lake
Washington Working Families ("LWWF"). This purported appeal is not proper under Renton Municipal
Code ("RMC" or "City Code"), and the City of Renton (the "City") must not permit an administrative
appeal to go forward.
The City made a final determination on WinCo's Permit on March 27, 2025, when the City
electronically transmitted and posted notice that the Permit was moved to "Approved" status. On April
8, 2025 the appeal by LWWF was received by the City.
Pursuant to RMC 4-8-110:
The Hearing Examiner may dismiss an appeal to the Hearing Examiner, without
hearing, when it is determined by the Hearing Examiner to be untimely, without merit on
its face, incomplete, or frivolous.
1. LWWF Lacks Standing.
First, LWWF has no standing.
LWWF is not a legal entity and thus not an entity capable of attaining standing for the purposes of an
administrative appeal under the City Code, or otherwise under Washington law. In order to achieve
standing in an administrative appeal under City Code, LWWF must satisfy the requirements in RMC
4-8-110.C.1, which provides:
1500 Railroad Avenue, Bellingham, WA 98225 1 360.671.1796 1 www.csdlaw.com
CSD I ATTORNEYS
AT LAW
Only the applicant, City or a person who has been made a party of record prior to the
issuance of a decision may appeal the decision. In order to appeal, the person shall be
aggrieved or affected by the decision pursuant to RCW 36.70C.060.
A "person" is defined within the City Code as:
Any person, individual, public or private corporation, firm, association, joint venture,
partnership, municipality, government agency, political subdivision, public officer, owner,
lessee, tenant, other legal entity, or any other entity whatsoever or any combination of
such, jointly or severally.'
LWWF is not an entity of any kind and therefore does not meet the definition of "person".
Furthermore, the incorporation of the Land Use Petition Act ("LUPA") standing requirements in RCW
36.70C.060 in the second sentence of the City's code for standing is significant here because LWWF
cannot demonstrate it has standing to appear in superior court under LUPA.
"Standing" in a general sense refers to a party's right to sue or be sued. While citizen groups often file
administrative and superior court appeals, they do so as either a public or private organization lawfully
established as a non-profit corporation. Washington courts have recognized that a citizen group that
commences a lawsuit as a non-profit entity is an organization capable of establishing standing, in part,
because a duly formed non-profit corporation has the statutory power to sue, to be sued, to complain,
and to defend in its name.
Here, LWWF has identified itself as "a coalition of King County residents, activists and organizations
that support sustainable growth and good jobs in King County." A search of the Washington
Secretary of State database reveals that LWWF is not a non-profit entity or any other entity conferring
upon it under state law the power to sue and be sued. Indeed, LWWF does not appear to be a legal
entity formed under the laws of the State of Washington, nor registered to do business in the State of
Washington as a foreign corporation. Other than LWWF's attorney, no person or valid legal entity has
associated itself as a member of this "coalition."' LWWF's lack of legal entity status is particularly
problematic because, should this dispute end up in superior court, LWWF does not have a registered
agent or person capable of receiving service of process, and its lack of legal existence renders any
court order against LWWF meaningless and unenforceable. LUPA mandates that a petitioner be an
individual, partnership, corporation, association, public or private organization, or government entity or
agency, which LWWF is not.' Given that LWWF is not an entity capable of suing or being sued —and
would be essentially judgment -proof— this appeal must be dismissed for lack of standing.
2. SEPA Exempt Determinations Are Not Subject to Appeal.
Second, this appeal should be dismissed because it is outside of the Hearing Examiner's jurisdiction
pursuant to RMC 4-9-070, which concerns the City's State Environmental Policy Act ("SEPA") review
procedures, Section G.2.:
' RMC 4-11-160.FF.
2 Note that even if LWWF could establish itself as a legal entity, it still has not established that it is aggrieved or
identified a member of the coalition as a representative aggrieved person or entity necessary to establish
organizational standing.
3 See RCW 36.70C.060 and .020(4).
K
CSD I AT LAW ATTORNEYS
Each department within the City that receives an application for a license ... shall
determine whether the license and/or the proposal is exempt. The department's
determination that a proposal is exempt shall be final and not subject to administrative
review.°
In this case, the planning department determined that WinCo's proposal was SEPA exempt. This
determination is final and not administratively appealable based on a plain reading of the RMC.
Accordingly, the Hearing Examiner does not have the authority to hear an appeal on this
determination. No basis exists in City Code to hear a SEPA exempt determination appeal and, in fact,
such an appeal is explicitly barred. Thus, this appeal must be dismissed.
3. SEPA Exempt Projects Are Not Subject to Site Plan Review.
This appeal should be dismissed because SEPA exempt projects are not subject to Site Plan Review
under RMC 4-9-200.C.2.b. The City should not humor LWWF's attempt to bootstrap a SEPA appeal
through a challenge to the Site Plan Review on a clearly exempt project.
LWWF's attorney claims that under RMC 4-9-200(B)(2)(a), Site Plan Review is required for "all
development" to include "conversion," "structural alteration," and "construction.115 Yet LWWF appears
to have missed RMC 4-9-200.C.2.b., which provides that "SEPA Exempt Development" is also
categorically exempt from Site Plan Review.
LWWF's attorney claims that Site Plan Review should be required because City staff previously
indicated Site Plan Review would be necessary at the pre -application review stage. LWWF fails to
recognize that Applicant's proposed improvements were revised in conversation with the City
following the pre -application review so as to avoid triggering Site Plan Review. This is despite the fact
that the City explained this to the LWWF's attorney in e-mail correspondence attached as Exhibit A
after the Appellant submitted initial comments.
Even if, arguendo, the appeal was allowed to go forward, it could only be allowed on the issue of Site
Plan Review, and the Hearing Examiner should find that LWWF's argument that Site Plan Review is
triggered is clearly without merit on its face. LWWF claims that the Permit triggers Site Plan Review
under RMC 4-9-200.D.2.b.v. because the existing site has more than three hundred (300) existing
parking stalls and thus exceeds the threshold for large project scale.
However, WinCo's improvements do not involve constructing a three hundred (300) parking stall -lot.
The lot is already existing. WinCo has proposed no structural changes to the exterior of the building,
aside from fagade changes to align with WinCo store design. None of the other bases for large
project scale are triggered either. WinCo has proposed no changes to the existing parking lot. As
LWWF's attorney rightly points out, the proposed improvement is a remodel of an electronics store to
a grocery store. This remodel is akin to tenant improvements, as City staff acknowledged when the
LWWF's attorney previously commented on the Permit to City planning staff outlined in Exhibit A. In
their email response, City staff explained:
"[A]pplications that are exempt from SEPA are also exempt from Site Plan review in
accordance with Renton Municipal Code (RMC) 4-9-200C.2.b, unless the proposed
4 Emphasis added.
5 See Appeal of Administrative Decision Approving Building Permit B24004855.
3
CSD I ATTORNEYS
AT LAW
development exceeds the threshold of large project scale per RMC 4-2-200D.2.b. .. .
the proposed project does not include the construction of a surface parking lot with three
hundred (300) parking stalls .... As the proposed improvements do not meet the
threshold for large project scale, the proposed project would be exempt from both Site
Plan Review and SEPA Review. However, a Building Permit (B24004855) is required for
the proposed tenant improvements.116
If, for example, every tenant improvement project in the City (specifically —those with greater than
three hundred [300] parking stalls —such as the remodel of any store in any mall within City limits)
were required to undergo Site Plan Review, rather than simply obtaining a building permit, this would
lead to nearly every tenant improvement project requiring Site Plan Review, which is an absurd and
administratively burdensome result. Moreover, the City is entitled to discretion when applying its own
code and pursuant to RMC 4-8-110.EA. a.:
The procedural determination by ... City staff shall carry substantial weight in any appeal
proceeding. The Hearing Examiner shall give substantial weight to any discretionary
decision of the City rendered pursuant to this Chapter/Title.
The reasoning outlined in Exhibit A provides the Hearing Examiner all necessary information related
to the City's determination that Site Plan Review is not required in this case.
Accordingly, this appeal must be dismissed without a hearing because it is outside of the Hearing
Examiner's jurisdiction and without merit on its face. Should an appeal go forward, it must not include
a challenge to the City's determination that this project is SEPA exempt.
4. City Appeal Processin
As discussed above, the letter initiating this appeal was received by the City on April 8, 2025.
Pursuant to RMC 4-8-110C.8, the City Clerk shall notify all parties of record of an appeal within five
(5) calendar days via regular U.S. mail or on the date the appeal was filed if email notifications had
been previously agreed to by the parties. A hearing is also required to be set within twenty-one (21)
days of receipt of the appeal. The City failed to notify WinCo of this appeal within five (5) days.
Rather, the City sat on this appeal until May 7, 2025. In the meantime, relying on the City's final
determination, WinCo put the project out for bid, secured a contractor, and entered into contracts that
are now being impacted by the City's failure to timely notify WinCo of the appeal as required by City
Code. WinCo reserves all rights and remedies in law and equity, including without limitation pursuing
damages against the City pursuant to Ch. 64.40 RCW for the City's failure to follow its own code in
processing this purported appeal.
5. Notice of Appearance and Hearina Examiner Rules.
Without waiving objection to the jurisdiction of the Hearing Examiner to hear this purported appeal,
please find attached as Exhibit B our Notice of Appearance. Additionally, please provide a copy of
the City's Hearing Examiner Rules and Procedures, as well as any instructions needed to appear on
behalf of our client in any upcoming proceedings.
6 Emphasis added.
CSDATTORNEYS
AT LAW
Given the impending appeal hearing date of May 27, 2025 and its associated briefing schedule,
please respond to this letter by acknowledging receipt and providing an update regarding the City's
dismissal of this improper appeal by Monday, May 19, 2025.
Sincerely,
CSD TTORNEYS AT LAW P.S.
P OV//*/ �
Timothy D. Schermetzler
Megan D. Holmes
MDH/TDS/jmb
Encl.
CC: Client
Attorney for LWWF, Karl G. Anuta
City Clerk of the City of Renton, Jason A. Seth
1500 Railroad Avenue, Bellingham, WA 98225 1 360.671.1796 1 www.csdlaw.com
EXHIBIT A
From: ]ill Dina
To: kga0lokaa.net
Cc: Clark Close: Matthew Herrera
Subject: RE: WinCo Development at 800 Garden Ave N, Renton
Good Morning,
I am confirming receipt of your email. Our regulations governing appeals can be found in the Renton
Municipal Code, Title 4 Development Regulations, Chapter 8 Permits — General and Appeals.
Thanks,
JILL DING, Senior Planner
City of Renton H Planning
Virtual Permit Center Online Applications and Inspections
office 425-430-6598
NOTICE OF PUBLIC DISCLOSURE: This message complies with Washington State's Public Records Act — RCW 42.56
From: kiza(@Iokga.net <Ua(@lokga.net>
Sent: Friday, November 1, 2024 3:56 PM
To: Jill Ding <JDing(@Rentonwa.Ro >
Cc: Clark Close <CClose(@Rentonwa.gov>; Matthew Herrera <M Herrera(@ Rentonwa.gov>
Subject: RE: WinCo Development at 800 Garden Ave N, Renton
CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open
attachments unless you know the content is safe.
Hi Jill:
Thank you for responding.
We disagree with your analysis. As outlined in our comment letter we think both Site Plan review
and SEPA are triggered, given what the application drawings and information show.
Please advise on the decision and appeal process that the City plans to use on this matter, both as to
the decision NOT to apply SEPA and Site Plan Review, and also on the Building Permit if one is
ultimately issued.
Karl G. Anuta
503-827-0320 (office)
From: Jill Ding <JDingl@Rentonwa.gov>
Sent: Thursday, October 31, 2024 12:03 PM
To: kgaiylokga.net
Cc: Clark Close <CClosel@Rentonwa.eov>; Matthew Herrera <MHerrera (@Rentonwa gov>
Subject: WinCo Development at 800 Garden Ave N, Renton
Mr. Anuta,
On October 30, 204, the city received your October 22, 2024 letter titled "Re: WinCo Application to
Convert and Develop 800 Garden Ave. N" regarding the proposed tenant improvements at 800
Garden Ave N for WinCo Foods No. 177. A pre -application meeting (PRE24-000139) was held on May
23, 2024 for the proposed store. The pre -application submittal from the applicant, WinCo Foods,
included a reuse of an existing building and a small building addition (176 sq. ft.) for access to a new
compactor dock.
The State Environmental Policy Act (SEPA) rules and categorical exemptions (WAC 197-11-800)
specify the following:
(3) Repair, remodeling and maintenance activities. The following activities shall be
categorically exempt: The repair, remodeling, maintenance, or minor alteration of existing private or
public structures, facilities or equipment, including utilities, recreation, and transportation facilities
involving no material expansions or changes in use beyond that previously existing; except that,
where undertaken wholly or in part on lands covered by water, only minor repair or replacement of
structures may be exempt (examples include repair or replacement of piling, ramps, floats, or
mooring buoys, or minor repair, alteration, or maintenance of docks). The following maintenance
activities shall not be considered exempt under this subsection:
(a) Dredging of over 50 cubic yards of material,
(b) Reconstruction or maintenance of groins and similar shoreline protection structures,
(c) Replacement of utility cables that must be buried under the surface of the bedlands; or
(d) Repair/rebuilding of major dams, dikes, and reservoirs shall also not be considered
exempt under this subsection.
As the proposal that was submitted for the pre -application meeting included a building addition or
material expansion of the building, it was communicated to the applicant that SEPA and Site Plan
Review would be required.
After the pre -application meeting, the applicant revised their proposal to remove the small building
addition from their proposal and now the trash compactors are proposed to be located outside of
the existing building and no building addition or material expansion of the building is proposed. As
the proposal does not include a change of use or material expansion of the building, the proposed
remodeling activities for the proposed WinCo Foods store would no longer the subject to the SEPA
process.
In addition, applications that are exempt from SEPA are also exempt from Site Plan review in
accordance with Renton Municipal Code (RMC) 4-9-200C.2.b, unless the proposed development
exceeds the threshold of large project scale per RMC 4-2-200D.2.b. The proposed project does not
include the development of one hundred (100) attached residential units; the proposed project does
not result in the construction of one hundred thousand (100,000) square feet of gross floor area
(nonresidential) in the IL or CO zones or other zones in the Employment Area (EA) land use
designation; the proposed project does not result in the construction of twenty-five thousand
(25,000) square feet of gross floor area (nonresidential) in the CN, CD, CA, CV, or CO zones outside
the Employment Area (EA) land use designation; the proposed project does not include the
construction of a building that is four (4) stories or sixty feet (60') in height; the proposed project
does not include the construction of a surface parking lot with three hundred (300) parking stalls;
and the proposed project does not create a new parcel that is ten (10) acres in size of project area.
As the proposed improvements do not meet the threshold for large project scale, the proposed
project would be exempt from both Site Plan Review and SEPA Review. However, a Building Permit
(B24004855) is required for the proposed tenant improvements.
Please contact me if you have any questions.
JILL DING, Senior Planner
City of Renton H Planning
Virtual Permit Center Online Apolications and Inspections
office 425-430-6598
NOTICE OF PUBLIC DISCLOSURE: This message complies with Washington State's Public Records Act — RCW 42.56
EXHIBIT B
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BEFORE THE HEARING EXAMINER FOR
THE CITY OF RENTON
Re: WINCO FOODS NO. 177
AT 800 GARDEN AVE N;
Building Permit Appeal
Permit No. B24004855
No.
NOTICE OF APPEARANCE
TO: THE HEARING EXAMINER FOR THE CITY OF RENTON
AND TO: ALL PARTIES OF RECORD
PLEASE TAKE NOTICE that WINCO FOODS, LLC hereby appears in this matter by and
through its attorneys, Timothy D. Schermetzler and Megan D. Holmes of CSD Attorneys at Law.
DATED this 141h day of May, 2025.
CSD ATTORNEYS AT LAW P.S.
In4titlty D. §fchermetzler, WSBA #49737
egan D. H Imes, WSBA #61251
Attorneys for WinCo Foods, LLC, Applicant
NOTICE OF APPEARANCE - 1
CSDI ATTORNEYS
AT LAW
1500 Railroad Avenue, Bellingham, WA 98225
tel 360.671.1796 • fax 360.671.3781
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DECLARATION OF SERVICE
The undersigned certifies that under penalty of perjury under the laws of the State of
Washington, that on May 14, 2025, 1 caused the delivery of a true and correct copy of the Notice
of Appearance to the parties listed below:
City of Renton
Jason A. Seth, City Clerk
Renton City Hall
1055 South Grady Way
Renton, WA 98057
iseth @rentonwa. aov
citvclerk@rentonwa. aov
[X] Via Electronic Mail
[X] Via Regular U.S. Mail
Citv of Renton Planning Department
Jill Ding, Senior Planner
Renton City Hall
1055 South Grady Way
Renton, WA 98057
idina @rentonwa. aov
[X] Via Electronic Mail
[X] Via Regular U.S. Mail
Attornev_for Lake Washinqton Working Families
Karl G. Anuta
735 SW First Avenue, 2"d Floor
Portland, OR 97204
&ga@lokca.net
corevOlokaamet
[X] Via Electronic Mail
[X] Via Regular U.S. Mail
DATED this 14'h day of May, 2025 at Bellingham, Washington.
CSD ATTORNEYS AT LAW P.S.
06;7� A�J-01
Jon M. Becker, Legal Assistant
NOTICE OF APPEARANCE - 2
CSD I ATTORNEYS
AT LAW
1500 Railroad Avenue, Bellingham, WA 98225
tel 360.671.1796 • fax 360.671.3781