HomeMy WebLinkAbout05-23-2025 - Applicant's Reply ISO Applicant's Motion to Dismiss
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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.
APPLICANT’S REPLY IN SUPPORT OF
APPLICANT’S MOTION TO DISMISS
I. REPLY
In this improper appeal, Appellant Lake Washington Working Families (“LWWF” or
“Appellant”) aims to prevent WinCo Foods, LLC’s (“WinCo” or “Applicant”) from moving forward
with its State Environmental Policy Act (“SEPA”)-exempt building permit (the “Project”). Despite
LWWF’s concession that SEPA exempt determinations are not appealable, LWWF still seeks to
backdoor SEPA review through an appeal of the Site Plan Review process. All of Appellant’s
claims are SEPA issues—allegations of increases in noise, water pollution, and air pollution—and
these issues are not addressed as part of Site Plan Review. The Hearing Examiner should not
allow Appellant to bootstrap an impermissible SEPA appeal with Site Plan Review. This is plainly
an attempt by Appellant to circumvent the clear requirements of City code.1 The Hearing
Examiner should dismiss this appeal because: (1) Appellant admits that the Hearing Examiner
does not have jurisdiction to hear appeals to SEPA exempt project determinations; (2) WinCo’s
1 As defined below.
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
SEPA exempt internal improvements are not subject to Site Plan Review; and (3) LWWF does not
have standing to appeal.
1. Appellant Concedes That Their SEPA Arguments Are Not Subject to Administrative
Appeal.
Pursuant to Renton Municipal Code (“City code” or “RMC”) 4-9-070, which concerns the
City’s administration of SEPA review procedures, Section G.2. states, “The department’s
determination that a proposal is exempt shall be final and not subject to administrative review.”2
The City planning department determined that WinCo’s building permit was SEPA exempt
pursuant to Washington Administrative Code (“WAC”) 197-11-800, which exempts repair,
remodeling and maintenance activities.3 The SEPA exemption determination for this Project was
communicated to Appellant’s attorney back in October 31, 2024.4 According to a plain reading of
City code, this determination is final and not administratively appealable.5 In its response,
Appellant concedes that the Hearing Examiner has no jurisdiction to overturn the City’s SEPA
determination.
2. SEPA Exempt Projects Are Not Subject to Site Plan Review.
LWWF’s argument that WinCo’s building permit triggers Site Plan Review is clearly without
merit on its face. Projects that are exempt from SEPA are also exempt from Site Plan Review
pursuant to RMC 4-9-200.C.2.b., regardless of whether or not they meet the definition of
“development” under RMC 4-9-200.B.2.a. There is no dispute that the conversion of the Project
site from a former retail store into a WinCo grocery store constitutes “development” as defined in
2 Emphasis added.
3 WAC 197-11-800(3) states, in relevant part:
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 . . . .
4 See City Response to Applicant’s Motion of Dismissal, Exhibit A.
5 Washington case law provides that SEPA exempt determinations that are not administratively appealable
must be appealed directly to the superior court. Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 376,
223 P.3d 1172, 1176 (2009), as amended (Dec. 8, 2009).
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
RMC 4.11.040(U); however, SEPA exempt projects are nonetheless exempt from Site Plan Review
with very few exceptions, none of which apply in this case.6
Appellant also clearly misunderstands the purpose of Site Plan Review and seeks to
impermissibly shoehorn SEPA review into Site Plan Review despite the City’s clear determination
that the Project is SEPA exempt and that such a decision is not administratively appealable. As
the City rightly points out, RMC 4-9-200.A.2.b. provides the purpose of Site Plan Review, which is:
[T]o analyze the detailed arrangement of project elements to mitigate negative
impacts where necessary to ensure project compatibility with the physical
characteristics of a site and with the surrounding area. Site plan review ensures
quality development consistent with City goals and policies. Site plan review
analyzes elements including, but not limited to, site layout, building orientation and
design, pedestrian and vehicular environment, landscaping, natural features of the
site, screening and buffering, parking and loading facilities, and illumination to
ensure compatibility with potential future development.
Site Plan Review does not, despite LWWF’s argument, account for “air pollution, water quality
impacts, noise, or greenhouse gas emissions.”7 Appellant claims that these alleged impacts “need
to be identified, and measures imposed to limit, eliminate, and mitigate for them required of the
developer.”8
Appellant claims that the “only reasonable way to accomplish this (short of SEPA review,
which the City has chosen not to engage in) is through Site Plan Review.”9 However, these
considerations are clearly far outside the scope of Site Plan Review. Site Plan Review, as
described above, analyzes site layout, building orientation and design, parking and loading
facilities, among other elements. Site Plan Review is primarily about the layout of the elements of
the site and its configuration with neighboring elements, such as City streets. Moreover,
Appellant’s argument ignores the fact that this project is occurring on an existing developed site
that was previously used in a similar manner to the proposed grocery store. As the City explained
in its materials, the Project site has a Site Plan already on file with the City, filed under LUA01-052
6 RMC 4-9-200-D.2.b.
7 Appellant’s Response to WinCo’s Motion to Dismiss, dated May 21, 2025 (“LWWF Response”), 12.
8 LWWF Response, 12.
9 LWWF Response, 12.
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
for the construction of the existing building, surface parking lot, and associated frontage
improvements (“2001 Site Plan”). All of these improvements will remain in place at the Project site,
and all of the required details were addressed in the 2001 Site Plan. Simply because the Project
site has been vacant since the former retail store closed does not make this project equivalent to a
new development, and to claim as much is clearly without merit.
A review of the SEPA checklist, which is required for projects undergoing SEPA review,10
shows that Appellant is attempting to retrofit Site Plan Review as SEPA review to address its
alleged concerns. The SEPA checklist addresses impacts to air in Section 2. Question 2.a. of the
SEPA checklist asks, “What types of emissions to the air would result from the proposal during
construction, operation, and maintenance when the project is completed?” The SEPA Checklist
addresses impacts on water in Section 3. Question 3.a. asks, “Describe the source of runoff
(including storm water) and method of collection and disposal, if any (include quantities, if known).”
The SEPA Checklist also addresses noise in Section 7. Question 7.b.2. asks, “What types and
levels of noise would be created by or associated with the project on a short-term or a long-term
basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come
from the site)?” The Hearing Examiner should not allow SEPA review masked as Site Plan Review
to go forward.
Finally, LWWF claims that the building 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, the threshold for large projects is
based on the actual development proposed in the project. WinCo’s improvements do not involve
constructing a three hundred (300) parking stall-lot. The parking lot already exists and WinCo is
not proposing any substantial changes to it. As discussed above, there is already a Site Plan in
place for the Project site, which went through Site Plan Review. WinCo has proposed no structural
changes to the exterior of the building, aside from façade changes to align with WinCo store
10 RMC 4-9-070I.1.
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
design. No other bases for large project scale are triggered. For these reasons, the City correctly
determined that Site Plan review was not required for this Project, and the City staff communicated
this to Appellant’s attorney on October 31, 2024. The City’s interpretation of its code to classify
WinCo’s improvements as exempt from Site Plan Review for not exceeding the threshold for large
project scale under 4-9-200.D.2.b is entitled to substantial weight.11 Nothing that the Appellant
presents in this appeal overcomes the deference afforded to City staff in making the determination
that this Project was exempt from Site Plan review.
3. LWWF Does Not Have Standing to Appeal.
a. LWWF Is Not a “Person” And Does Not Have the Power to Sue or Be Sued.
RMC 4-8-110.C.1 limits appeals to the applicant, City, or a person who has been made a
party of record prior to the issuance of a decision. For an appeal to go forward, the party of record
must be: (1) a person and (2) aggrieved or affected by the decision pursuant to RCW
36.70C.060.12
A “person” is defined in City code to include:
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.13
LWWF claimed first that it was a “coalition” and later an “association.” However, as Appellant
points out, an association is defined as a “group of people who work together in an organization for
a particular purpose.”14 While LWWF claims to represent King County residents, LWWF’s
comments and statement of appeal did not mention a single King County resident by name until
the issue of standing was presented in WinCo’s Motion to Dismiss. LWWF also cannot meet the
definition of “any other entity whatsoever,” which it attempts to broaden to an unworkable degree
11 RMC 4-8-110.E.4.a.; State v. Numrich, 197 Wash.2d 1, 18-19, 480 P.3d 376 (2021) (“This court accords
substantial weight to an agency's interpretation within its area of expertise and upholds that interpretation if it
reflects a plausible construction of the regulation and is not contrary to legislative intent.”).
12 RMC 4-8-110.C.1.
13 RMC 4-11-160.FF.
14 Emphasis added.
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
regarding who has the right to appeal. The principles of statutory interpretations, particularly the
principle of ejusdem generis prohibits such an interpretation in this case. Ejusdem generis:
requires that general terms appearing in a statute in connection with specific terms
are to be given meaning and effect only to the extent that the general terms suggest
similar items to those designated by the specific terms.15
Each of the other terms within the definition of “person” are entities with legal standing to sue and
be sued. These include “person, individual, public or private corporation, firm, association, joint
venture, partnership, municipality, government agency, political subdivision, public officer, owner,
lessee, tenant, other legal entity.” Such entities are comprised of either individuals/persons (who
have the ability to sue or be sued in their own capacity) or legal entities (who also have the ability
to sue or be sued) working in concert. The addition of “any other entity whatsoever” is to be given
meaning and effect only to the extent that it suggests similarity to the other specific terms
enumerated in the City code definition of “person.” This does not include a legally nameless and
faceless coalition that is without the capacity to sue or be sued. Moreover, the acceptance of
testimony from “informal organizations”16 has no bearing on the question of standing—because
those testifying need not necessarily have the ability to sue or be sued.
LWWF now brings forward a member of its coalition, Daisy Hannelore (“Hannelore”);
however, Hannelore did not comment at any point prior to the issuance of the building permit
decision and does not meet the code requirements to be a “party of record.” Had Hannelore
commented on the building permit and identified themselves as a member of LWWF, rather than
LWWF solely commenting and later attempting to bring forward Hannelore, Hannelore would have
standing, and LWWF may have associational standing therefrom.17 In fact, Washington case law
provides three criteria a court must assess to determine if an organization has standing to sue:
(1) The members of the organization would otherwise have standing to sue in their
own right;
15 Bass v. City of Edmonds, 199 Wn.2d 403, 414, 508 P.3d 172, 178 (2022)
16 RMC 4-8-200.G.3.g.ii.
17 Riverview Community Group v. Spencer & Livingston, 173 Wn. App. 568, 577, 295 P.3d 258262 (Div. 2
2013) rev’d on other grounds, 181 Wn.2d 888, 337 P.3d 1076 (2014).
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
(2) The interests that the organization seeks to protect are germane to its purpose;
and
(3) Neither claim asserted nor relief requested requires the participation of the
organization’s individual members.18
LWWF clearly fails the first criterion, because its members do not otherwise have standing to sue
in their own right due to their failure to comment prior to the City’s decision on the building permit
and thus to exhaust administrative remedies. Accordingly, without associational standing, LWWF
should not be considered a person with standing to appeal the City’s final determination on
WinCo’s building permit.
Furthermore, permitting LWWF to proceed in this appeal is inconsistent with the appeal
structure laid out in City code because LWWF does not have the legal power to commence
proceedings, including without limitation, a Land Use Petition Act (“LUPA”) proceeding. The
incorporation of the LUPA standing requirements in RCW 36.70C.060 in the second sentence of
the City’s code for standing is significant because LWWF cannot demonstrate it has standing to
appear in superior court under LUPA. Other than LWWF’s attorney, no person or valid legal entity
associated itself as a member of this “coalition” prior to LWWF’s response to WinCo’s motion to
dismiss.19 LUPA mandates that a petitioner be an individual, partnership, corporation,
association, public or private organization, or government entity or agency.20 Implicit in this
definition, and as confirmed by Washington court decisions analyzing standing, an “organization”
capable of bringing suit must be a lawfully established entity (i.e., a non-profit or other legal entity
such as an LLC), or be represented by individuals with standing. LWWF meets none of these
requirements.
The Fifth Circuit United States Court of Appeals addressed a similar issue in the context of
a Louisiana police officer’s attempt to sue “Black Lives Matter”—an unincorporated association—in
18 Id. at 577–78, 295 P.3d at 262–63.
19 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.
20 See RCW 36.70C.060 and .020(4).
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
federal court.21 There, the Court reasoned an unincorporated association “does not come into
existence or commence merely by virtue of the fortuitous creation of a community of interest or the
fact that a number of individuals have simply acted together.”22
Providing a mission statement and declaration from a single member of LWWF after
Appellant’s standing was challenged does not create an entity.23 If the individual identified in
LWWF’s declaration wanted to establish standing, they could—and should—have commented on
the building permit and been individually named as an appellant, or formed an entity (non-profit or
otherwise) registered with the State of Washington.24
Furthermore, there are significant consequences if the Hearing Examiner permits LWWF to
proceed in this action despite its lack of legal existence. LWWF’s status as an entity matters
because a legally nameless and faceless informal organization cannot be sued in a court of law.
For example, should this appeal ultimately end up in superior court, LWWF has no registered
agent or person capable of receiving service of process, which would frustrate any attempt by
WinCo to obtain personal jurisdiction, and leave no one capable of accepting service of pleadings if
LWWF’s attorney were to withdraw and LWWF were to proceed unrepresented.25 Additionally, if
the Court issues sanctions or orders a judgment against LWWF, there is no legal entity for the
WinCo to recover against. For these reasons, among others, this appeal should be dismissed for
lack of standing.
b. LWWF Failed to Allege a Redressable Injury-in-Fact.
In addition to its inability to sue or be sued, LWWF failed to allege that it was aggrieved or
affected by the appealed decision, as required by RCW 36.70C.060 and RMC 4-8-110.C.1. A
person aggrieved or adversely affected by the land use decision has standing under City code and
LUPA only if all the following conditions are present:
21 Doe v. McKesson, 945 F.3d 818, 833-834 (5th Cir. 2019).
22 Id.
23 McKesson, 945 F.3d at 833-834.
24 RCW 36.70C.020(4).
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
(a) The land use decision has prejudiced or is likely to prejudice that person;
(b) That person’s asserted interests are among those that the local jurisdiction was
required to consider when it made the land use decision;
(c) A judgment in favor of that person would substantially eliminate or redress the
prejudice to that person caused or likely to be caused by the land use decision;
and
(d) The petitioner has exhausted his or her administrative remedies to the extent
required by law.
LWWF failed to provide any basis by which it as a consortium or association, or its
individual members, were aggrieved by the City’s decision on the building permit or Site Plan
Review determinations until WinCo filed its Motion to Dismiss. The Hearing Examiner should not
allow LWWF to cure its failure to allege an injury-in-fact, as required under both City code and
LUPA.26
Additionally, even if the Hearing Examiner takes into consideration the statements of the
Hannelore Declaration, the Hearing Examiner should find that a judgment in favor of LWWF would
not “substantially eliminate or redress the prejudice to that person caused or likely to be caused by
the land use decision” because both LWWF and Hannelore seek redress of concerns related to
SEPA review—a non-administratively appealable issue—rather than Site Plan Review.
Accordingly, redress of these concerns is not possible at the administrative appeal level.
DATED this 23rd day of May, 2025.
CSD ATTORNEYS AT LAW P.S.
__________________________________
Timothy D. Schermetzler, WSBA #49737
Megan D. Holmes, WSBA #61251
Attorneys for WinCo Foods, LLC, Applicant
25 Morris v. Palouse River and Coulee City R.R., Inc., 149 Wn. App. 366, 370, 203 P.3d 1069, 1072, review
denied, 166 Wn.2d 1033 (2009) (“Proper service of the summon and complain is essential to invoke personal
jurisdiction.”).
26 RCW 36.70C.060; RMC 4-8-110.C.1.
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
DECLARATION OF SERVICE
The undersigned certifies that under penalty of perjury under the laws of the State of
Washington, that on May 23, 2025, I 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
jseth@rentonwa.gov
cityclerk@rentonwa.gov
[X] Via Electronic Mail
City of Renton Planning Department
Jill Ding, Senior Planner
Renton City Hall
1055 South Grady Way
Renton, WA 98057
jding@rentonwa.gov
[X] Via Electronic Mail
Attorney for Lake Washington Working Families
Karl G. Anuta
735 SW First Avenue, 2nd Floor
Portland, OR 97204
kga@lokga.net
corey@lokga.net
[X] Via Electronic Mail
Attorney for City of Renton
M. Patrice Kent
Senior Assistant City Attorney
1055 South Grady Way
Renton, WA 98507
pkent@rentonwa.gov
[X] Via Electronic Mail
/ /
/ /
APPLICANT’S REPLY ISO
APPLICANT’S MOTION TO DISMISS - 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
DATED this 23th day of May, 2025 at Bellingham, Washington.
CSD ATTORNEYS AT LAW P.S.
_______________________________
Joan M. Becker, Legal Assistant