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HomeMy WebLinkAbout06-10-2025 - Admin Appeal -- Winco1 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 Administrative Appeal - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Wincoe Building Permit Appeal B24004855 ) ) ) ) ) ) ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION Overview The appeal is denied and approval of building permit B24004855 upheld. The Appellant lacks standing to litigate this appeal. The Appellant lacks associational standing because the Appellant has not demonstrated that the member it presented as injured by the building permit decision has any control over the Appellant’s organization. The Appellant lacks institutional standing because it hasn’t demonstrated any harm to its organization other then implicating general societal concerns. Even if Appellant did have standing, the Appellant has not presented any grounds for reversal of the approval of the Winco building permit approval. SEPA exempt building permits are not subject to site plan review. Large scale development exceptions to the SEPA exempt exemption must be based upon newly proposed construction as opposed to existing development. Evidence Relied Upon 1. City Response Memo to Appeal dated 5/19/25 2. Original Site Plan, p. 5.1 1 At the hearing in response to Examiner questions the Appellant responded that their exhibits had not been distributed in advance to the parties. Tr. 5. Near the end of the hearing it became apparent that Ex. 3-5 had been distributed to 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 Administrative Appeal - 2 CAO VARIANCE - 2 3. Revised 4/29/24 site plan, p. C1 4. Revised 9/16/24 site plan, A1.3B 5. Landscape Plan, LS01 6. 11/22 Photo of Project Access Point 7. 9/20/24 Architectural plans (2 pages) 8. Appellant Response to Applicant Motion to Dismiss dated 5/21/25 9. Applicant’s Motion to Dismiss 10. April 8, 2025 Appeal 11. Applicant’s Reply Findings of Fact 1. Appellant. Lake Washington Working Families (LWWF) legally represented by Karl Anuta,735 SW First Ave., 2nd Floor, Portland, OR 97204. 2. Hearing. A hearing was held on the appeal on May 27, 2025. A computer generated transcript of the hearing is provided as Appendix A. References to the transcript are made by “Tr. x,” with x the transcript page number. The transcript just serves as a rough approximation of hearing testimony and should only be used to help find the location of actual testimony as recorded by the City. The city planning department can make copies of the hearing recording available upon request and payment of any applicable fees. 3. Winco Development. The appeal is over the approval of Building Permit B24004855 for the re-use of an existing vacant 151,480 square foot commercial building located at 800 Garden Ave N, Renton, WA 98057. The project site currently accommodates 708 parking stalls. The building formerly housed a Frye’s Electronics store. External improvements are limited to addition of an external compactor area, a reduction in the number of parking stalls, the elimination of a vehicle access side entrance and the addition of micropiles. The compactor area will be composed of a 1000 square foot area composed of a concrete slab continuous with the building foundation with grade beams poured to support new screening walls for the compactor area. Excerpt of Exhibit # 5 to Ex. 8, P_Architectural Plans_20240923_ v1.pdf. The external compactor area is screened from view by a masonry screen wall that is not connected to the main building and is located on the western side of the compactor area, separating the compactor area from view on the internal western drive aisle and Garden Ave N further west. Tr. 13, 34:01-35:59(shared screen of mason walls). One of three vehicular entrances to the project site will be closed off with landscaping. The entrance is located along the southwestern side of the project site along Garden Ave N, along the side of the building that is away from the parking area. Ex. 5, Tr. 17. The proposal includes the removal of 24 spaces for the new compactor deck on the west side and the removal of 34 spaces for cart corals. Ex. the parties as exhibits to the Appellants’ response brief, Ex. 8. Consequently, Ex. 3-5 are redundant of exhibits attached to Ex. 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 Administrative Appeal - 3 CAO VARIANCE - 3 1, p.1. A total of 650 parking spaces would remain. Parking stalls eliminated by the proposal will be replaced with landscaping. Tr. 24-25. Underground improvements include the addition of 294 micropiles to support an interior slab and 107 micropiles to provide additional support for perimeter wall footings. Ex. 4 to Ex. 8. 4. Appeal. Appellants filed their appeal on April 8, 2025. The Appeal asserts that the Winco improvements should be subject to site plan review and challenges the finding that the proposal is exempt from SEPA2 review. The Appellants withdrew their SEPA challenge in their response to the Applicant’s motion to dismiss. Ex. 8, p. 7. Conclusions of Law 1. Authority. RMC 4-8-080G classifies building permits as Type I decisions subject to appeal to the hearing examiner, which in turn is appealable to superior court. 2. LFFW Has No Standing or this Appeal. LFFW has failed to meet its burden to establish standing. LFFW has argued both associational standing and institutional standing, LFFW fails to establish associational standing through its members because it has not established that the member it presents has any control over LFFW activities. LFFW fails to establish institutional standing because it hasn’t identified any concrete injury beyond impairing broad social goals. The party bringing a land use appeal under the Land Use Petition Act (LUPA, Chapter 36.70C RCW) has the burden to show all the required conditions of standing are satisfied. Behind the Badge Found. v. City of Olympia, 12 Wash. App. 2d 1009 (2020)(Unpublished). Given that this decision is subject to LUPA review, placing the burden of proof on the Appellants appears to be appropriate. This is also consistent with the Administrative Procedures Act, Chapter 34.04 RCW, which also places the burden of proof to establish standing on the person challenging agency action. Benton Cnty. Water Conservancy Bd. v. Washington State Dep't of Ecology, 25 Wash. App. 2d 717, 724, 524 P.3d 1075, 1079, review granted in part, 532 P.3d 154 (Wash. 2023), and aff'd, 546 P.3d 394 (Wash. 2024). The evidence presented by LFFW on its associational standing claim is further exacerbated by the fact that it was based solely upon one declaration where the declarant was not made available for cross- examination. Parties have a right of cross-examination in local adversarial and technical land use proceedings. Chrobuck v. Snohomish Cnty., 78 Wash. 2d 858, 870, 480 P.2d 489, 496 (1971). Winco had a right to cross-examination the author of the standing declaration. Winco forfeited the right by failure to object to admission of the declaration3. Nonetheless, as shall be discussed, the declaration fails to identify crucial facts to properly assess standing. Since LFFW has the burden of proof, the 2 SEPA is the State Environmental Policy Act, Chapter 43.21C RCW. 3 Had Winco objected, its objection would likely have been resolved by continuing the hearing if necessary to make the declarant available for cross-examination. Winco very well could have strategically not objected to avoid the added delay. 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 Administrative Appeal - 4 CAO VARIANCE - 4 failure to properly establish standing is fatal to its appeal. Associational Standing It is uncontested that the Appellants are an association of individuals that have not registered with the Secretary of State as any recognized legal entity such as a corporation or legal partnership. In response to the Applicant’s motion to dismiss, Appellants produced a declaration from Daisy Hennelore alleging that she is a member of the Appellant. Ex. 2 to Ex. 8. The declaration provides no information on Ms. Hennelore’s role or control of the Appellant organization. Further, no information is provided on the organizational structure of LFFW or how members such as Ms. Hennelore have any influence over how the organization operates. In asserting standing through one of its members, LFFW is trying to establish associational standing, i.e. establishing standing through the interests of one of its members. LFFW hasn’t met its burden of proof on this issue because it hasn’t established whether Ms. Hennelore has any control over the activities of the LFFW. An association basing standing on injury to its members must be designed to represent the interests of those members. As stated in one associational standing case: …one principal undergirding the standing doctrine is that “the decision to seek review must be placed ‘in the hands of those who have a direct stake in the outcome,’…not …in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” American Legal Foundation v. FCC, 808 F.2d 84, 91 (1986). Associational standing is premised on the fact that an association is representing the interests of its members, which can only be accomplished through member control over association activities. See Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1209 (2002) (“such a right [for association to sue on behalf of members] requires the representational right to be a strong one, in order to ensure the fidelity of the organization to those for whom it claims to speak”). The American Legal Foundation asserted in its case that television viewers constituted its members in a case against the Federal Communications Commission. The Friends of Tilden Park in its case asserted that neighborhood residents were members by virtue of their proximity to a development project that the organization contested. The courts in both cases readily threw those arguments out in part on the basis that the “members” had no control over the selection of association leadership, activities or financing – they largely just acted as bystanders. In this case LFFW provided no information regarding Ms. Hennelore’s control over Appellant’s activities. Ms. Hennelore wasn’t even identified until after the Applicant made their motion to dismiss. LFFW identifies itself as “a coalition of King County residents, working families, environmental advocates, labor unions, and local merchants united in opposition to unchecked urban sprawl and overdevelopment.” Ex. 1 to Ex. 8. There is no information provided on managerial structure of Appellant’s organization or the voting or other control rights of its members. There is nothing to suggest that Ms. Hennelore is anything more than a bystander in the organization who receives an occasional 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 Administrative Appeal - 5 CAO VARIANCE - 5 newsletter. There is no basis to conclude that Ms. Hennelore has any control over the activities of the Appellant to the extent that Appellant would be construed as representing her interests. Institutional Standing Appellants have not established institutional standing because they have not identified any specific harm to its organization. To satisfy the LUPA prejudice requirement for standing, a petitioner must show that he or she would suffer an injury-in-fact as a result of the land use decision. Knight v. City of Yelm, 173 Wash. 2d 325, 267 P.3d 973 (2011). For an organization to establish “injury in fact” for standing, the allegation must be more than a setback to its abstract social interests. Havens Realty Corp. v. Coleman, 455 US 363, 379 (1982). For example, the mere assertion of a “special”, longstanding interest in conserving the beauty and majesty of the Sierra Nevada mountains does not constitute a sufficient “injury in fact” to confer standing to the Sierra Club. Sierra Club v. Morton, 405 US 727 (1972). Injury must be concrete, such as the refusal to rezone property to enable an affordable housing organization to build an affordable housing complex. See Village of Arlington Heights v. Metropolitan Development Corp., 429 US 252 (1977). As noted in the American Legal Foundation case, for an association to establish “injury in fact” it must assert an interest greater than “seeing” the law obeyed or a social goal furthered. Rather, the organization must allege that discrete programmatic concerns are being directly and adversely affected by the defendant’s actions. 808 F.2d at 92. The Appellants have not identified any specific programmatic activity that is adversely affected by the Winco permit approval. Its interests are limited to abstract social concerns that are not by themselves sufficient to confer standing. 3. Site Plan Review. Site plan review is not required for this project. RMC 4-9-200B2a requires site plan review for all development located in th e UC-2 zoning district. The proposal is located in the UC-2 zoning district and thus site plan review is generally required. However, RMC 4-9-200C2b exempts SEPA exempt projects from site plan review with a couple exceptions. One of those two exceptions exempts development that exceeds the threshold for large project scale development identified in RMC 4-9-200D2b. One of those large scale development exceptions per RMC 4-9-200D2bv is development with parking that exceeds 300 parking stalls. The Appellant asserts that the proposal involves more than 300 parking stalls and thus is not exempt from site plan review under RMC 4-9-200D2bv. It is clear, however, that the large scale development that triggers site plan review under RMC 4-9-200D2b only applies to new development, not existing development. The code language creating exceptions to site plan review provides as follows: C. EXEMPTIONS: 1. Development Exempt from Master Plan Review: The following are exempt from the master plan review: 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 Administrative Appeal - 6 CAO VARIANCE - 6 … c. SEPA Exempt Development: All development categorically exempt from review under RMC 4-9-070G, Environmental Review Procedures; or (emphasis added) As highlighted in the bolded text above, the exceptions only apply to “development.” Development is defined by RMC 4-11-040U as “the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any structure.” The “development” definition is focused upon actions, not existing conditions. The Applicant is not proposing the construction etc. of 300 parking stalls. The exceptions quoted above clearly don’t apply to existing development. As noted by the Applicant, if the exceptions did apply to existing development then any tenant improvement no matter how small to an existing commercial development with more than 300 stalls would trigger site plan review. No reasonable purpose would be served by such an interpretation. The Applicant also asserts that site plan review is required because of the addition of the external compactor area, the addition of micropiles and the removal of one of the three project site vehicular entrances. None of that is relevant since the proposal is exempt from site plan review as determined above. Decision The Appellant lacks standing to litigate this appeal. Even if it did, the Appellant’s appeal does not serve as grounds for reversal of the approval of B24004855 for the reasons identified in the Conclusions of Law above. DATED this 10th day of June 2025. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) provides that this is the final land use decision of the City of Renton. This decision may be appealed to King County Superior Court within 21 days of issuance as governed by the Land Use Petition Act, Chapter 36.70C RCW. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.