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HomeMy WebLinkAbout06-10-2025 - HEX Admin Appeal w app A - 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. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 1 of 37 Appendix A May 27, 2025, Hearing Transcript Winco Appeal File No. – B24004855) Note: This is a computer-generated transcript provided for informational purposes only. The reader should not take this document as 100% accurate or take offense at errors created by the limitations of the programming in transcribing speech. A recording of the hearing is available from the City should anyone need an accurate rendition of the hearing testimony. Examiner Olbrechts: (00:00:03): Perfect. Alright, for the record, it is May 27th, 2025, 9:00 AM I'm Phil Alb Break's hearing examiner for the City of Renton holding a hearing this morning on appeal of building permit application from WinCo Foods. File number permit number B 2 4 0 0 4 8 5 5. Looks like we have counsel for all the parties who need to be here today. Mr. Ado, for the appellant. Ms. Kent, for the City of Renton. And Mr, is it Schidler? Is that how to pronounce your last name, sir? Ms. Ding: (00:00:34): Yeah, sure. Metler. Yep, Mr. Schermetzler: (00:00:35): Sure. Examiner Olbrechts: (00:00:36): Metler. Okay for the applicant. Now this is a little unusual. We're at the hearing on the merits, which essentially encompassed all the issues that have already been subjected to Mr. Sch Mettler's Motion to dismiss. I think probably the fairest way to handle the hearing format is Mr. WinCo got its chance on its motion to dismiss the first and last I think on the merits. Mr. Anuta can be first and last essentially arguing the same issues with I think standing thrown in actually. Is there any other preliminary matters before we just jump right into it or it's pretty straightforward? I think so. Mr. Anuta, go ahead on any arguments you want to make on the merits here. Like I said, it's pretty limited to just two issues primarily. And then there was standing if you want to respond to it, that was raised by WinCo. Ms. Anuta: (00:01:23): Well, I'm happy to. Let me ask, in terms of your preferences, Mr. Hearing examiner, do you want me to do an opening argument and then call witnesses and then we'll do a closing argument? Or were you thinking we'd just argue the merit straight out based on what we have so far? Examiner Olbrechts: (00:01:48): Let me know. Well, no, I think yeah, get the evidence in if you have any to present, that's fine. All witnesses of course are subject to cross-examination and if you want to throw in an opening with that, that's your option. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 2 of 37 Ms. Anuta: (00:02:01): Okay. Well lemme briefly then address the motion to dismiss since, if that's okay. I won't repeat what was in my briefs. I'm assuming you've had a chance to read those and don't need me to go over the same points again. In terms of my thoughts on the key things there. Lake Washington working families qualifies under the rent and city code as a person that's fairly straightforward. It's an association and it's an entity other than a legal entity. The case law doesn't require us to be a legally registered entity. One case that I ran across after we filed our opposition memorandum and after I read the reply that I would suggest if you're interested in that issue, you review, would be save a Valuable Environment, be Bothell, that's the Washington Supreme Court 89 Washington second 8 62. And if you go to 8 66 there, there's a standing discussion where the Supreme Court says individuals with a common interest, which they seek to further may choose any one of a number of forms through which to act in concert. (00:03:22): For example, a labor union, an unincorporated association may further their interests in their workplace and represent those interests in legal actions. Citing an old boilermaker's case from 1949. So the fact that LWWF is not a registered legal entity, I think has no relevance to the code. We certainly have shown that we have a member who's got an interest that's affected and is red addressable. What we're seeking is a site plan review. If we get a site plan review, we get a traffic impact study and if we get a traffic impact study that should mitigate the negative impacts of this new development and what is currently vacant land. And so that's what site plan review is all about is mitigating negative impacts. So I think we, on the motion to dismiss, I think that should be straightforwardly denied on the merits in terms of a brief summary of we believe this qualifies for site plan review. (00:04:33): The project involves more than 300 parking spaces. The project involves construction of structures. Those are all things that trigger site plan review and we've outlined those in our materials. We've attached excerpts of some of the exhibits that show there's changes here that includes, by the way, changes to the 2001 site plan for the Fry store. One of the things we highlighted was their closing off an entrance access point that was approved in that original site plan as part of their project here where they're putting in trash compactors right across from that entrance and access point. So they are modifying the original, their drawings and their structural analysis show that they're doing things that qualify as a large development. So we think it's pretty straightforward. They need site plan review and we think the city got it right the first time in the pre-application process. And the only thing that from our perspective really changed between the pre-app and the current app is they took the words expanded by 176 square feet off the site plan drawing. Otherwise, the site plan drawings are basically the same. They involve the trash compactor, they've got involved the slabs that are next to the, that have joints connecting them to the building. So in our view, just changing the words on the site plan doesn't exempt the project from site plan review. In terms of witnesses, we've already submitted the declaration, Ms. Ow, our first live witness would be Ms. Ding as an adverse witness. Examiner Olbrechts: (00:06:22): Okay. Is Ms. Ding there, Ms. Ding, let me swear in real quick. Just raise your right hand. Do you swear affirm to tell the truth nothing but the truth in this proceeding? Ms. Ding: (00:06:35): I do. Examiner Olbrechts: (00:06:35): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 3 of 37 Okay, great. Okay, go ahead Mr. Nta. Ms. Anuta: (00:06:41): Ms. Ding, in terms of our claim and our appeal, will you agree that the project includes drilling 500 micro piles into bedrock beneath the store? Speaker 6 (00:07:03): I don't know. That's beyond the scope of my review. Ms. Anuta: (00:07:08): Okay. And you would agree that there was plans submitted and materials submitted that from a structural engineer where WinCo was following the dictates of an structural engineer? Right. Speaker 6 (00:07:25): Again, I don't review, I'm not a structural engineer. I'm not a building plans examiner. Plans were submitted with the building permit application that were reviewed by the building department, but I'm not that person. Ms. Anuta: (00:07:45): But you are the person who reviews materials to see if they are subject to site plan review, aren't you? Speaker 6 (00:07:54): Correct. Ms. Anuta: (00:07:56): Alright. And when you did this review, the pre-application review for this project, you concluded that it was in fact subject to both CPA and site plan review? Speaker 6 (00:08:11): The original pre-app was, yes, that's correct. Ms. Anuta: (00:08:14): Alright. And if we could, I'm assuming we've got the ability here to share screens and I don't know from a clerk standpoint, Mr. Hearing's examiner because I'm technologically incompetent. I was hoping to have my associate, Mr. Oken, do the screen share with the exhibits, if that's okay? Examiner Olbrechts: (00:08:34): Sure. Yeah. Ms. Moya, is Mr. Anuta set up to share screen? Speaker 2 (00:08:40): Mr. Anuta, is it you that wants to share or do you want Oken to share? Sorry, Ms. Anuta: (00:08:44): That would be court Mr. Oken if he could share. Thank Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 4 of 37 Speaker 2 (00:08:46): You. Great. I just gave him permissions to share. Ms. Anuta: (00:08:56): Alright. If we could pull up the exhibit seven and if we could shrink that a little bit. Yeah, there we go. Ms Dig, do you recognize this as the pre-application meeting summary that you prepared? Ms. Ding: (00:09:26): Yes. Ms. Anuta: (00:09:28): Alright. And if we scroll through there a little bit, ultimately you agree your conclusion in this document was that it was subject to cipa? Actually, if you go back down for a minute. There we go. Thank you. And it was subject to site plan review Speaker 6 (00:09:55): Based on the materials that were submitted with the pre-application? Yes. Ms. Anuta: (00:10:00): Alright. And one of the things you wrote and we've highlighted on the exhibit here is that the existing surface parking lot includes 708 parking spaces. The proposals going to put that or the project's going to change that to be 650 parking spaces, right. Speaker 6 (00:10:22): Approximately. It appears that that's, well, it looks like might a little bit more Speaker 7 (00:10:28): Six Ms. Anuta: (00:10:29): 50. Speaker 6 (00:10:29): Yeah, it looks like. Yep. Ms. Anuta: (00:10:32): And do you remember from reviewing the materials that basically what they're going to do is they're going to put in, they're going to take out some parking spaces where they're going to put in the trash compactor area. Do you remember the drawings well enough, Speaker 6 (00:10:49): Remember? I don't recall. Ms. Anuta: (00:10:54): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 5 of 37 Okay. If we could then, well let me back up before we leave Exhibit seven. On exhibit seven we went over the fact you concluded site plan review and ci o were required. Do you remember why you concluded that was the case? Speaker 6 (00:11:16): Because they were doing a small addition to the building. I believe it was a hundred and it was less than 200 square feet, but there was a small addition to the building that was proposed. Ms. Anuta: (00:11:31): Then before we leave exhibit seven, Mr. Hearings examiner, I didn't check with you on this. Do you want to go through the formal offer and admit process on each exhibit or? Examiner Olbrechts: (00:11:44): Yeah, I was actually going to ask about that. I have all the parties briefs. I don't have exhibits. I'm just curious where this exhibit comes from and let's deal with admission right now. So you said exhibit seven, where does exhibit seven come from? Precisely Ms. Anuta: (00:12:03): That is the pre-application meeting summary that we extracted from Examiner Olbrechts: (00:12:08): No, no. I mean how has that been submitted to the parties? I guess I don't have the background on where this exhibit seven comes from. Was it submitted with one of the responses to the motion to dismiss or how has this been distributed? If it has been distributed, Ms. Anuta: (00:12:24): It has not to my knowledge been distributed to the parties. Examiner Olbrechts: (00:12:28): Okay. Okay. Alright, gotcha. Ms. Anuta: (00:12:30): That's just our preliminary marking on the document that we extracted from the Examiner Olbrechts: (00:12:34): Scene. Okay, okay. That's what I was just trying to get. If there had been some exhibits exchanged that I hadn't seen. So no party has seen this yet as of yet is what you're saying, so, okay. Alright. I mean I hate to, I'd rather start off by admitting these as you present them since they haven't been presented in advance, in numerical order. If we could, I don't want to mess up your numerical system, but it's going to get kind of confusing if we mix your numbers in with the, that are presented by other parties. So if we can't like to just mark this as exhibit one and then just ask if any parties have any objection to entry of that document, the pre-application notes? Yeah, Ms. Kent, Speaker 7 (00:13:18): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 6 of 37 Ms. Fiering examiner. I apologize for interrupting. I believe that Ms. Ding may have also submitted this as part of the staff report that was provided on May 19th. Examiner Olbrechts: (00:13:31): Okay. Alright. Okay. So does the city want the staff report admitted as an exhibit then? That I don't know if I saw the staff report, guess what I'm saying? Like I say, I have the appeal and the motion to dismiss and all the responsive briefing, that kind of thing. I didn't see the staff report come in so we can mark that as exhibit one. Was that distributed to all the parties? Speaker 7 (00:13:59): I believe it was. Examiner Olbrechts: (00:14:03): Okay. Alright. Any, oh, sorry, Speaker 7 (00:14:05): Mr. Shetler, I don't recall whether it was forwarded to Mr. Shetler and WinCo. Examiner Olbrechts: (00:14:12): Okay. Speaker 7 (00:14:13): Ms. Moya, do you Speaker 2 (00:14:15): I don't have it in my files. I was just looking through my files to see staff report and I don't see that either. I have an improper appeal letter from five 19, but that is it. I'm going through my emails now. Speaker 7 (00:14:34): I was either in my memo response that was sent on the, let me find the emails to find this as well. Thank you. Examiner Olbrechts: (00:14:44): Okay, Mr. Schussler, did you get a copy of it? The city staff report? Mr. Schermetzler: (00:14:53): There we go. Yes, I did get a staff report, I believe on the 20th. Speaker 2 (00:15:03): I was just going to say I have May 20th. It was SR. WinCo appeal memo, city response. Examiner Olbrechts: (00:15:12): Okay. Yeah, I do have that. So yes, it's under there. Yes. Alright. Okay. That's the response brief I was talking about, sorry. Okay, good, good. Alright. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 7 of 37 Mr. Schermetzler: (00:15:19): But I would just say I don't believe that this particular exhibit was attached to it. Let me go through this Examiner Olbrechts: (00:15:28): Just to verify. Mine Ms. Anuta: (00:15:31): Certainly wasn't attached to it, identified the way we identified it as exhibit seven. That was our marking, not the city's. Mr. Schermetzler: (00:15:39): Yeah, Ms. Anuta: (00:15:40): But this was included Mr. Schermetzler: (00:15:45): TIMM for WinCo. Your Honor, it doesn't appear to be in the copy that we received. And I guess my objection to this exhibit would be on relevance grounds. I mean pre-application certainly has to do with this project that some level, but it's not the actual application that the decision was made on. A lot of things change from a pre-application to an application. The pre-application is an informal information gathering and discussion process that many jurisdictions go through as you're aware. And certainly there are things that are discussed at the pre-application that never make it to the application stage and is not part of the ultimate decision. So I don't see how a pre-application narrative or information has any bearing on the decision here that was made by the city that's subject to this appeal. Examiner Olbrechts: (00:16:41): Okay. Mr. Anu, any response? Ms. Anuta: (00:16:43): Yeah, part of what we're trying to show here is that the city correctly recognized in its pre-application review that this project was subject to site plan review and that we haven't gotten to it yet, but there's some drawings that we can show you we plan to put in that are the pre-application drawings and then the post application current application drawings. And you'll see that they are virtually identical except for the words building expansion. 176 square feet have been removed, but otherwise the changes are the same. So that's why we think this is relevant because it shows that the city, in fact, correctly recognized that site plan review was applicable initially. Examiner Olbrechts: (00:17:31): Okay. I'll admit, I mean it's potentially relevant to a staff credibility on their change in opinion and what the basis was for it. So we'll let that in. But since this is a part of the city's response letter, I mean rather than have this come in twice, I'll just, I think we just go back to the city's response letter. Does anyone have any objections to the city response letter to the motion to dismiss, which includes those pre-op notes if I understand this correctly? So the city response is 27 pages long and everyone has that, right. Are there any objections other than what Mr. Metzler voiced to having that memo come in? Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 8 of 37 Speaker 7 (00:18:19): None. Mr. Hearing? Examiner Olbrechts: (00:18:20): Yeah, hearing Your Speaker 7 (00:18:22): Honor, the staff report may not have been sent to Mr. Shetler. It was the standard staff report that is provided as under rent and municipal code. The next day was when the motion to dismiss the city's response to the motion to dismiss was due and sent Mr. Ler. I don't know if that initial staff report was forwarded to you. It is generally not. So I can certainly forward it to you now, but that is, I don't believe that was included in what was mailed out. I am requesting that Ms. Moya from the City Clerk's office confirm whether Mr. Ler was copied on Ms. Ding's report Speaker 2 (00:19:11): On five 20 at four 15. I emailed his group with the SR WinCo appeal memo. Thank you. Which is the five 20 and also the improper appeal letter, which was five 19. Thank you Examiner Olbrechts: (00:19:29): Mr. I'll let you say what you got there. So that, Mr. Schermetzler: (00:19:33): Yeah, so I did receive that on five 20 and I guess I haven't seen all of the document that is on the screen here. I don't know if this document is that memo that we're looking at on the screen. It looks like this is perhaps on the screen a different pre-application meeting notes or a different document. So just for purposes of clarifying what is actually in the record and what we're looking at, WinCo has no objection to entering the memo from Community and Economic Development Department dated May 19th, 2025. I did receive that on May 20th, 2025. That's a 27 page document. We have no objection to that being entered. (00:20:25): This document that is on the screen appears to be 15 pages. It appears to be something different. So I would like to see the entirety of this document before it's all admitted. And I guess we jumped right into this. I think this is what's a little bit problematic with this approach is there hasn't exhibits shared or some of the typical hearing formalities that I've at least experienced in these hearings ahead of this, certainly more informal hearings occur, but I can't say what all of the objections I'm going to have to this document without even seeing the entirety of the document. I think that's problematic from my client's standpoint. Examiner Olbrechts: (00:21:18): Right. Yeah, and like I said, this is actually, I mean part of the 27 page document, this is what we're looking at right now, is page the second one. There is page 13 of that 27 page document. I don't know why Mr. Aida's document is only 15 pages long and I have one that's 27. That's the part I can't figure out right now. Ms. Anuta: (00:21:42): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 9 of 37 I can try to explain and maybe Mr. Oak can take that one down for a moment. And let me suggest another approach. This one is a memo that was in those materials, but it's only the memos, not all the materials submit. (00:22:02): So that requires on 15, and lemme make a suggestion here. I'm happy to, I mean, I have a number of exhibits that are drawn from the cities of materials like structural plans, architectural plans, those kinds of things, as well as the two exhibits that we submitted with, or some of the exhibits that we submitted with our opposition memo. But I agree, the full documents have not been shared with Mr. S Mosler or Ms. Kent. We sent Ms. Kent a list of them because we had told her would, if it would make things easier, I would be happy to create a full exhibit list, send copies of all the exhibits. But to do that we'd have to postpone this hearing. And I don't know that that city or WinCo or yourself, Mr. Examiner wanted to do that. So I guess I'm happy to try to, we could email each of the documents to everyone as we offer them or however you want to do it. I do have, Examiner Olbrechts: (00:23:12): I think it was Mr. Ler that had the problem with continuing this, I mean this meeting hearing was originally going to be in June when we could have done the usual exchange of exhibit lists and everything else that I do for all my other appeal hearings. But it got moved up, so that was not possible. But I mean, Mr. Schmutzer, we can do the standard format. I'm happy to do that. But I mean, well first of all, I was under the impression this would be pretty, I mean we just have two appeal issues here. It didn't look like it was going to be that complicated, but it looks like Mr. Ata does have a lot of documents he wants to share. Mr. Schermetzler: (00:23:49): Yeah, I mean my client certainly wants to resolve this today. Our position all along was that this is an improper appeal and that we laid out in our briefing. So certainly we want to move forward. My client wants to move forward today. I think in terms of entering these exhibits, if we're going to enter an exhibit today, I would just like to make sure that we are all working off the same sheet of music. That if it's the 27 page document from the city that we're looking at, let's enter that document and let's look at that document on the screen just so that we have a clear record here versus something that could be problematic if this goes any further than today. Examiner Olbrechts: (00:24:38): So I'm sorry you saying that you're okay with continuing this or not? Mr. Schermetzler: (00:24:43): Yes. Examiner Olbrechts: (00:24:44): Okay. Mr. Schermetzler: (00:24:45): My client wants to move forward and get a decision as soon as possible. But in terms of entering exhibits, I don't know what 15 page document we were just looking at. I think the explanation made sense, but my preference would be that we have the city clerk pull up the 27 page document that was Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 10 of 37 sent to the parties and that we're referencing those pages in this discussion versus some document that I hadn't seen. I don't know if it was altered in some way. Certainly it looks like that document we were looking at was altered as there were highlights on it. So I'd like to make sure we have a clean record. Examiner Olbrechts: (00:25:28): Okay. Alright. So you're okay with moving forward today? As long as we don't get buried with a bunch of exhibits we haven't seen? I think it's, Ms. Ding: (00:25:37): Yes. Examiner Olbrechts: (00:25:37): Okay. Alright. And Mr. Nta? Yeah, I mean this pre-app notes that you were sharing was part of the 27 page document, so I think we can just rely upon that, correct? Ms. Anuta: (00:25:49): That's correct. Okay. We don't need to enter the separate one that we didn't put together because Examiner Olbrechts: (00:25:53): It's already, it's already there. Okay. So I'll say exhibit one is the city response to the motion to dismiss from the applicant dated May 19th, 2025. Put that into the record then. Okay. Alright, go ahead Mr. Nu. Ms. Anuta: (00:26:11): Alright. Mr. Elken, can you pull up the pre-application drawing that has the orange box and I think that was what we marked as exhibit three, but regardless of what we marked it as, okay, this is what we had preliminarily marked as exhibit three, but it was drawn regardless of the number, this is drawn from the materials the city sent us with the pre-application. And if we can go to the page that has, whoops, hang on. Do you want the one with the orange box or the pre-app submittal? The pre-app submittal is fine. I think it looks like Ms. Kent has a question. Speaker 7 (00:27:14): Yes. Mr. Anuta, can you clarify whether what you, or what you said it was what the city provided, are you talking about in response to a public records request or are you talking about the 27 page document that Ms. Ding submitted Ms. Anuta: (00:27:28): In a public record? That's a very good clarification. Thank you. Ms. Can Mr. Hearings examiner asked, Speaker 7 (00:27:35): So this would be a new exhibit? Ms. Anuta: (00:27:37): Yes. We sent public record requests to the city. They shared with us the file and what WinCo had submitted. And so this document and then some of the ones that follow are drawn from those Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 11 of 37 materials. So this is not something that has been already shared with the parties, but it is something that the city had in their files and that I'm planning to ask Ms. Ding about. Examiner Olbrechts: (00:28:10): Okay. Alright. Yeah, I was just waiting for next one. So what is this the site plan of again, is this the preliminary site plan or is this the one that was revised? Ms. Anuta: (00:28:17): This is the preliminary site plan. And Mr. Oken, if you could enlarge down there a bit, Ms. Ding, you can see the enlarged drawing here. That's the site plan. And do you remember when you reviewed the pre- application materials? This was one of the things that was in it. Ms. Ding:: (00:28:51): I recall that they submitted plans, yes. Ms. Anuta: (00:28:55): And on this plan where it says building area 152,000 1600 square feet and then below that do you see where it says existing building area and then Mr. Oaken canoe enlarged just a little further because my old buys aren't working very well. There we go. It says existing building area one hundred and fifty one eight hundred and forty square feet, new compactor area 176 square feet. Do you see that? I do. And is that new compactor area of 176 square feet the same? Is that the reason that you thought site plan review was appropriate? Because there that new 170 square, six square foot area, Ms. Ding:: (00:29:45): The new 176 square foot area triggered CIPA because it was considered a material expansion of the existing building and that triggered site plan review. Ms. Anuta: (00:30:01): Okay. And the new area, if you move it over to the left a little bit, Mr. Okin, the new area at issue for the compactor is shown on this drawing right there, isn't it? Where it says new compactor area with an arrow. Do you see that? Ms. Ding: (00:30:18): Yep. Ms. Anuta: (00:30:19): Alright. Mr. Oaken, could you scroll down to the one that has the V or the wings version? Could be, I thought in that same batch, the next one or next two down shows a the alternative version of the compactor instead of a rectangular area. It's got a, Speaker 7 (00:31:02): Yeah, it's just a different document. Ms. Anuta: (00:31:04): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 12 of 37 Ah, okay. Pull up that document then. Well, before we leave that I offer exhibit, let's see, we'll have to call it exhibit two, which is pre application claim that we just had up. Examiner Olbrechts: (00:31:22): Okay. Any objections? I know Mr. Schettler, you still probably standing on relevancy. Is there anything else? Any other objections? Mr. Schermetzler: (00:31:30): I doubt my relevance objection and I would say that I would move to admit only the page that we were looking at. I haven't seen the rest of the document. Examiner Olbrechts: (00:31:39): No, I think that's fair. So Mr. Schermetzler: (00:31:41): Just that that's totally fair. Examiner Olbrechts: (00:31:43): Okay. And which page of that was, can you identify the page Mr. Una? Ms. Anuta: (00:31:49): I think it's page five. Examiner Olbrechts: (00:31:50): Page five, okay. That'll be admitted as exhibit two. Okay, go ahead. Ms. Anuta: (00:31:56): And Mr. Okin, can you pull up the alternative version with the wing wall that has the same language? I believe it's got the orange box on it too, but my adobe is crashing, so this will take a second. Let me see if I can manage it on my screen. Speaker 2 (00:32:42): Mr. Anuta, I just gave you permission to share just so you Ms. Anuta: (00:32:46): Okay. And I'm trying to see if I can pull it up on my drawings. Ms. Ding: (00:32:54): I got it. Ms. Anuta: (00:33:02): That's not, ah, which one is this that you're using? Oh, this is a construction. I'm looking for the one that has the orange box that has the, and I thought we had marked that. If not, lemme go find it. I apologize Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 13 of 37 Mr. Examiner. I thought I had these all worked out, but I believe it was what we had as exhibit six. Mr. Oaken, (00:34:01): Did you find it? Alright, let's see. We can get that up. Okay, there we go. Ms Ding, this is the same site plan except that someone prior to us has put an orange box around the building part of the building area. Do you see the same language there though? That says a hundred fifty two zero one square feet and then below it in parentheses the existing building and then the new compactor area. I see that. Alright. And over on the left hand side it says new compactor area, but it's got a different configuration instead of the rectangular extension. It's got some wing walls and two and an angled area. Do you see that? I do. All right. This, because it says it's got a new compactor area of 176 square feet was what you said triggered cipa and that triggered site plan review, if I got that right. Ms. Ding:: (00:35:21): Well, the previous site plan included a building addition. This appears to be a different configuration, which does not appear to include a addition. Ms. Anuta: (00:35:37): Do you see where it says new compactor area 176 square feet? Ms. Ding:: (00:35:41): I do. Ms. Anuta: (00:35:42): And then a section down on the left where it says new compactor area. Ms. Ding:: (00:35:48): Yeah, I understood that those compactors were installed external to the building and weren't attached. They weren't in addition to the building. Ms. Anuta: (00:35:59): Well, before we leave it, we'll offer this as, I guess this is going to be exhibit, this page of the working site plan. We'll offer as exhibit three if I'm Examiner Olbrechts: (00:36:15): Correct. Ms. Anuta: (00:36:15): Yeah, that's right. And I'm going to have, we'll pull up another drawing that'll tie this in, but I'll offer it for Examiner Olbrechts: (00:36:24): You. Okay. Any objections beyond the I relevancy? Ms. Anuta: (00:36:29): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 14 of 37 None. Examiner Olbrechts: (00:36:29): Okay. It's admitted. Ms. Anuta: (00:36:33): And then Mr. Oaken, let's go to the, Examiner Olbrechts: (00:36:36): Yeah, just for the transcript, this is page C one of the overall site plan dated. Is there a date on that Mr. Anita corner? Yes. 4 29 24. Ms. Anuta: (00:36:46): 9 24. Examiner Olbrechts: (00:36:47): Okay, great. Thank you. Ms. Anuta: (00:36:48): Right, page C one. Mr. Oken, can we switch to the construction plans where it shows the joints and the concrete pads? And I remember right, that might be what we had preliminary marked as Exhibit 11. (00:38:10): Well he's doing that and then I think we got it there. Yeah, what we've pulled up here is I think this, oh, this is an architectural drawing and this is, if you could scroll up on my screen, I can't which sheet that is No, on the bottom. Yeah, so it's sheet A one three BI believe. And then if you, the date Mr. Oken, if you can scroll up, that's received by the city 9 24 24. And then you see Ms. Ding where it talks about in the notes where construction joint is used on exterior slabs, install, preformed isolation joints and self- leveling sealant. Do you see that? I see that. And Mr. Oaken, if you could scroll down, now you see the area that has the wing wall for the trash compactors, which is composed of a concrete slab that's got some measurements on it shows 11 feet by seven eights inches and 10 feet by 61.4 inches. Do you see that area diagram in the I see Ms. Ding:: (00:39:43): That. Ms. Anuta: (00:39:44): Alright. You agree that that is a concrete slab with a wing wall where they're proposing to put the trash compactors, right? Ms. Ding:: (00:39:56): If that's what the plans indicate, then yes. Ms. Anuta: (00:39:59): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 15 of 37 Alright. And that according to the notes we saw on that architectural drawing up above, they're going to connect that concrete slab to the foundation of the building using joints. You saw that? Right. Okay. So in fact this concrete slab will be connected to the existing structure, won't it? Sure. Alright. But it's your contention, the city's position as I understand it, that notwithstanding that connection somehow, this isn't an addition to the building. Correct. So before I forget, we'll offer what would now be exhibit four. And this is the page as not Examiner Olbrechts: (00:40:57): Indicated. Any objections beyond the WinCo standing? Objection on relevance. Mr. Schermetzler: (00:41:04): I'm just noting, your Honor, Tim, me WinCo, the yellow highlights on this document for clarification purposes, those were put there by the appellant, I presume? That's correct. Examiner Olbrechts: (00:41:18): Okay. Mr. Schermetzler: (00:41:18): So with that notation and my other objections, not withstanding fine to admit. Examiner Olbrechts: (00:41:26): Okay. Admitted as noted. Ms. Anuta: (00:41:29): And before I leave that this is the same location for the trash compactor that was shown on the original pre-application drawings. In terms of where it is on the site, it hasn't changed, has it? Ms. Ding: (00:41:46): No. Ms. Anuta: (00:41:55): And those slabs, we looked there at the drawing, you can see the sort of V, that's a wall that's going to be built on the trash compactor, pla, or slab, right? Ms. Ding:: (00:42:11): I believe so, Ms. Anuta: (00:42:12): Yes. Alright. And that wall is composed of pieces of metal and wood or masonry that are going to be installed on top of the concrete slab, right? Ms. Ding:: (00:42:30): TI believe they were CMU, but I can't say for sure. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 16 of 37 Ms. Anuta: (00:42:38): Yeah, and I'm not asking you which component parts they were, but they were just parts that were going to be assembled into walls. Ms. Ding: (00:42:45): Yes. Ms. Anuta: (00:42:46): Alright, let's, we can take that one down Mr. Okin, let's turn for a moment to the parking lot issue. You agree that if a project involves more than 300 parking stalls, it constitutes a large scale project under the city's code Ms. Ding:: (00:43:15): If they were creating a new parking lot? Yes. Ms. Anuta: (00:43:21): And why do you say if they were creating a new parking lot, is there somewhere in the code definition of over 300 parking stalls constituting a large scale project where it says creating a new project with that stall? Does it say that's somewhere in the code that I missed? Ms. Ding:: (00:43:58): Well, if you're talking about the intent of site plan review, it would be for a new development, which would be for a new parking lot. Ms. Anuta: (00:44:09): The exemption itself just says that, or the code itself just says if the project is more than 300 parking stalls. Right. Ms. Ding:: (00:44:24): Well, site plan review was previously conducted on the existing building and existing parking lot. So we wouldn't do site plan review again on the existing parking lot. Ms. Anuta: (00:44:40): But the site plan under the new project is changing things about the location, isn't it? Minor amendments are allowed and the changes include work changes in the parking stalls, don't they? Ms. Ding:: (00:44:58): Minor amendments are allowed. Ms. Anuta: (00:45:00): And they also include changing access and closing off an access point to the street on that side of the building, don't they? Ms. Ding:: (00:45:10): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 17 of 37 Minor amendments are allowed to existing site plans within the site plan review code. Ms. Anuta: (00:45:19): And so just so we're clear then, you agree that WinCo in this current proposal is changing the parking lot by putting landscaping in and curbs in where there currently is an entry and exit point. Ms. Ding:: (00:45:44): So I can't remember exactly what they're doing in the parking lot. I know there are some minor changes that are proposed. I can't recall what those exactly are specifically. Ms. Anuta: (00:45:56): Mr. Okin, if you could pull up, I think it was back to what we had as exhibit eight, the landscape plans. There's one that shows the closure of that area and let's refresh Ms. Ding's recollection with that. That was our exhibit eight. Okay. And which page is this again? Remind me. This is the landscape drawings LS zero one and it was received by the city on 9 24 24. And if you could zero back in on the landscaping area there, Mr. Okin, and enlarge a little bit. Ms. Ding, right now there is an entrance and an access point where in the area where that red box is, right? Ms. Ding:: (00:47:02): Yes, that's correct. Ms. Anuta: (00:47:04): And they're proposing to put a tree and some landscaping in that area? Ms. Ding: (00:47:09): Yes. Ms. Anuta: (00:47:10): Alright. And we'd offer this page of the landscape drawing as exhibit five. Examiner Olbrechts: (00:47:17): Okay. And what was that page number again? Ms. Anuta: (00:47:20): It was LP ls, sorry, LS oh one. Examiner Olbrechts: (00:47:26): Okay. Alright. The landscape plan which is dated, I'll say received 9 24 24. Okay. Correct. Alright. Any objection beyond the standing relevancy objection. Alright, so entered as Exhibit five, Ms. Anuta: (00:47:45): You. Alright, you can take that down. Mr. Okin. Ms. D, you would agree that this change is going to potentially alter the traffic flow at that site? People Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 18 of 37 Ms. Ding:: (00:48:01): Will, I don't know. I'm not a transportation engineer and I can't say that that was, I mean, to me it doesn't look like that was one of the primary entrances or exits from the site Ms. Anuta: (00:48:15): Right now. People could, if it wasn't a vacant lot with a fence around right now, people could drive in or out of that section of the parking lot, couldn't they? Ms. Ding:: (00:48:25): I think they would head to the main entrance a little farther away where it's closer to the parking lot. Ms. Anuta: (00:48:31): But they could exit or enter that parking lot at that location because there's a curb cut and a driveway currently isn't there? Ms. Ding:: (00:48:39): They could, yeah. Ms. Anuta: (00:48:41): Okay. Did you do any traffic analysis of the number of vehicles that was going to be coming into what is now a vacant parking lot? If O WinCo was cited there? Ms. Ding:: (00:49:03): I do not do a traffic review for the city. Ms. Anuta: (00:49:10): Do you know what the effects on traffic in that general area will be of going from a vacant lot to that's fenced off to a fully functional, large scale grocery store? Ms. Ding:: (00:49:28): I'm not a traffic engineer. I don't do traffic review for the city. Ms. Anuta: (00:49:32): Okay. And just so we can have a clear record, Mr. Oaken, could you pull up what we marked as Exhibit 12? I don't know if you've been out to the site, Ms. Ding and looked it over. Do you recall seeing this access point? And I'll represent to you, this is the same location that we were just talking about. Ms. Ding:: (00:50:09): I agree that this is the same location that we were talking about. Ms. Anuta: (00:50:13): Okay. We'd offer this as exhibit six, your Honor. Examiner Olbrechts: (00:50:17): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 19 of 37 Okay. Any objections beyond relevancy? Okay, here we not admitted. Ms. Ding: (00:50:21): No objection. Ms. Anuta: (00:50:41): We talked about the fact that the code requires site plan review if there are more than 300 parking space stalls involved. What's your understanding of why the code requires that for a project? If there's more than 300 parking stalls, why does the code require site plan review or cipa? If that's the case? Yes, Ms. Ding:: (00:51:15): I would look at the purpose statement of site plan review and refer to that. Ms. Anuta: (00:51:21): And I believe that's RMC 4 9 200 a, two B if my notes are right. And it said to analyze the detailed, the purpose of site plan review is to analyze the detailed arrangement of project elements to mitigate negative impacts where necessary and then it goes on. Do you remember that? That Ms. Ding:: (00:51:49): Sounds correct. Ms. Anuta: (00:51:50): Alright. And just so your Honor is clear, I'm actually quoting from Mr. Sudler's reply brief at page three where he very nicely set forth the definition for the purpose of site plan review. So did you look when you were making your evaluation of site plan review at whether or not there had been a traffic impact assessment done for this site Ms. Ding:: (00:52:22): That is done by a different reviewer at the city. Ms. Anuta: (00:52:26): Do you know if there had been a traffic impact assessment done for this project? Ms. Ding:: (00:52:31): I don't know. Ms. Anuta: (00:52:33): Do you know if there was a traffic impact assessment done for the prior site plan? The one for Fry's electronics? Ms. Ding:: (00:52:43): I don't know. I would presume there was, but I don't know. Ms. Anuta: (00:52:47): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 20 of 37 Do you know how long ago that traffic impact assessment for which you're presuming was done? How long ago would that have been done? Ms. Ding:: (00:53:00): Well, I know, well if there was one done for fry's, which I presume there was, that would've been done. I believe the file was dated 2001. There was also a subsequent site plan review for a different project on the site that was more recent that the city reviewed. I wasn't involved in that review, but that included a traffic impact analysis. Ms. Anuta: (00:53:28): And that more recent one was for a different type of development, wasn't it? Correct. And the 2001 site plan for the frys, that if there was a traffic impact study done before the 2001 site plan, it would've had to been done in either or 1999, sometime before 2001. Ms. Ding:: (00:53:54): I don't know when it was done. Ms. Anuta: (00:53:56): Okay. Would you agree that it, assuming it was done either in 2001 or 2000, whatever data was in it was at least 20 years old? Ms. Ding: (00:54:11): Yes. Ms. Anuta: (00:54:18): Okay. We talked earlier about the structural elements and you said you were not the person who reviewed the structural issues, Ms. Ding:: (00:54:33): Right? I'm not a structural plans reviewer, Ms. Anuta: (00:54:36): But you remember seeing, there were structural plans submitted by WinCo to basically earthquake proof the building. Ms. Ding:: (00:54:49): I know that there were structural plans submitted with the building permit, Ms. Anuta: (00:54:54): And part of what the project is going to do is expand parts of the building's internal slabs. Right? I don't know. Mr. Oaken, if we could pull up, let's see what we had marked as exhibit five again and go to page six and seven. That's the architectural plans. That's not the, I try, I'm looking for page A one A on that. Oh, there we go. It's the one before that. Okay. Scroll down a little bit. I believe that's the right page. There we go. This is page A one A of the WinCo plans. That's entitled slab plan. And these were again Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 21 of 37 submitted to the city on 9 24 24. And I've highlighted a section on the lower right corner of that page. You see where it says in large pizza slab plan. Ms. Ding:: (00:56:44): I see that. Ms. Anuta: (00:56:45): Alright. And then if we go to the next page of drawing a one, and this is a 1.1, this has an enlarged freezer service complex slab, an enlarged bakery slab, and down at the bottom an enlarged restroom slab. If you could scroll down a little bit, Mr. So she can see that last one. There we go. You see where I've highlighted those three references about internal en enlargements of the slab? Ms. Ding: (00:57:19): Yes. Ms. Anuta: (00:57:20): Alright. We'd offer those two pages of the architectural drawings. Examiner Olbrechts: (00:57:27): Okay. Any objections beyond the standing relevancy Mr. Schermetzler: (00:57:31): And just noting the highlights were done by the appellant? Nothing further. Okay. Examiner Olbrechts: (00:57:35): So noted and admitted. Ms. Anuta: (00:57:58): Those are all the questions I have for Ms. Ding. Examiner Olbrechts: (00:58:01): Okay. Mr. Any questions of Ms. D? Mr. Schermetzler: (00:58:07): Yes, your honor. I'll try to be brief. Good morning Ms. Dang. Thank you for your time this morning. Can you just very briefly, two minutes or less explain your role in reviewing site plans in this project? Ms. Ding:: (00:58:27): So specifically for site plans or building plans? Well, Mr. Schermetzler: (00:58:31): For this project, your role in reviewing this project. Explain that for us. Ms. Ding:: (00:58:36): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 22 of 37 So I look at compliance with land use regulations. So I look at compliance with our urban design regulations. I look at compliance with landscaping standards, setbacks, impervious surface coverage. And I also verify compliance with parking regulations as far as compliance with the number of parking stalls required. Mr. Schermetzler: (00:59:01): Understood. And I'll come back to the parking, but this morning we talked a bit about some of these other aspects of the project and you said that those were outside of your review. What happens at the city when something's outside of review? What do you do? Ms. Ding:: (00:59:21): So the building permit gets submitted to the building permit technician. They route it to various reviewers within the city. I am one of the reviewers, so I review it for compliance with land use regulations and development standards. We have a building plans examiner. We have a structural plans examiner. They look at the building structural plans. We have development engineers who look at transportation, they look at utilities, surface water. We have the fire department. They could look at compliance with the fire codes. Mr. Schermetzler: (01:00:02): And do you get feedback from all of those various other reporters back to you on this project? Ms. Ding:: (01:00:10): Well, they would go back to the permit technician who I believe in this case was Steve Triplet. Mr. Schermetzler: (01:00:17): Okay. And what does the permit technician then do with all those comments? Ms. Ding:: (01:00:20): They compile all the comments and then send them back to the applicant if corrections are needed. Mr. Schermetzler: (01:00:28): Are you the person at the city that would determine whether or not site plan reviews needed or not? Ms. Ding: (01:00:33): Yes. Mr. Schermetzler: (01:00:35): And would you look at the other comments that the site plan technician, or rather the city technician compiles to determine whether a site plan is needed? Ms. Ding:: (01:00:48): I evaluated it as part of the pre-app, so it was actually, I mean, I would do it as part of the building permit or the pre-app. I wouldn't necessarily, it would be something that I would be able to evaluate myself. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 23 of 37 Mr. Schermetzler: (01:01:18): Let's turn to the building in question here. So at the pre-app, there was an expansion of the building and you saw that which is what you thought triggered site plan review. Is that that Correct. And when the revised permit came out, there was still an area that was shown on the site plans for the trash compactors, but it wasn't part of the building anymore, correct? Ms. Ding:: (01:01:47): Right. We did not consider that a building addition. Mr. Schermetzler: (01:01:50): And why didn't you consider that a building addition? Ms. Ding:: (01:02:03): So when we look at whether site plan review is triggered, we look at whether SIP A is triggered and the threshold for CIPA is a material expansion of the building. We did not see a material expansion of the building, so we looked for walls connecting the building with the addition. Mr. Schermetzler: (01:02:26): Yeah. Could we bring back up? I believe it was Ms. Ding:: (01:02:30): As well as floor area. Yeah. Habitable space. Mr. Schermetzler: (01:02:34): Yeah. Yes. Thank you. Could we bring up back up exhibit three? I believe Ms. Anuta: (01:02:46): That's the working drawings. Mr. Mr. Schermetzler: (01:02:58): Yeah. Mr. Elkin? Yeah. If you could zoom in on the impactor area, so, oh, that's plenty. Thank you. So Ms. Ding, do you see on the plans where there's a red arrow that says new masonry screen wall? Ms. Ding: (01:03:16): Yes. Mr. Schermetzler: (01:03:18): Is that attached to the building? Ms. Ding:: (01:03:21): It does not appear to be, no. Mr. Schermetzler: (01:03:25): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 24 of 37 And was that part of your evaluation that this new wall wasn't attached to the building? Ms. Ding: (01:03:30): Yes. Mr. Schermetzler: (01:03:32): In another project if someone added a retaining wall outside of the building, would that be a part, a substantial change to the building triggering sideline review? Ms. Ding:: (01:03:43): No. Mr. Schermetzler: (01:03:45): What if someone added a screening fence to a screen, a parking lot? Would that be something that would be a substantial change to the building triggering site plan review? Ms. Ding:: (01:03:57): No. Mr. Schermetzler: (01:03:58): Is this new masonry screening wall any different than a retaining wall or a screening wall in your opinion? No. Thank you. We can go out of that exhibit. You mentioned traffic was in your purview or parking rather was in your purview. Is that correct? Ms. Ding:: (01:04:21): I look, yeah. Mr. Schermetzler: (01:04:22): And what do you consider in parking? Is that a zoning review for parking compliance? Ms. Ding:: (01:04:28): It is. I look at what is the use that is proposed, how many parking spaces are required, and then how many are provided. Mr. Schermetzler: (01:04:40): And your testimony earlier noted that site plan reviews triggered when there is new construction of a parking spot or sufficient parking spots. Is that correct? Right. Are there any new parking spots being created with this project? Ms. Ding: (01:05:00): No. Mr. Schermetzler: (01:05:02): In fact, there's a reduction in parking spots on this project, is that right? Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 25 of 37 Ms. Ding:: (01:05:05): Correct. Mr. Schermetzler: (01:05:07): And some of the reduction in parking spots, those spaces are going to be filled with landscaping materials and trees, is that correct? Ms. Ding:: (01:05:18): Correct. Mr. Schermetzler: (01:05:19): Is that something that the applicant proposed or is that something that the city worked with the applicant on? If you know? Ms. Ding:: (01:05:28): Some the applicant proposed and then some we worked with the applicant on. Mr. Schermetzler: (01:05:34): What's the purpose of adding landscaping in a parking area like that? Ms. Ding:: (01:05:41): It provides additional shade, reduces impervious surface. Mr. Schermetzler: (01:05:47): Would it be fair to say that those things are mitigating existing conditions? Ms. Ding: (01:05:52): Yes. Mr. Schermetzler: (01:06:07): The earlier questions referred to this property as a vacant law by the appellant's attorney, that's not accurate, is it? This isn't a vacant lot? Ms. Ding: (01:06:18): No. Mr. Schermetzler: (01:06:20): Can you describe what's on this lot? Currently Ms. Ding:: (01:06:23): There's an existing building that was a retail building previously and a existing surface parking lot. Mr. Schermetzler: (01:06:31): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 26 of 37 And that existing building that was retail before the proposed use is going to be a grocery. Is that a similar use? It's the Ms. Ding:: (01:06:39): Same use, yeah. Retail to Mr. Schermetzler: (01:06:41): Retail. So no change in zoning use of the property. Did you have any communications with the appellant about this project prior to? Prior to today's hearing? Ms. Ding:: (01:07:12): Yes. Mr. Schermetzler: (01:07:14): Who did you speak to specifically? Ms. Ding:: (01:07:18): I had one email to Mr. Anuta. There was another guy, I can't remember his name though. Mr. Schermetzler: (01:07:29): And the email to Mr. Anuta, when did that occur? Ms. Ding:: (01:07:37): In the fall, I think. Mr. Schermetzler: (01:07:41): Do you remember what the contents of that email was? Ms. Ding:: (01:07:46): I was explaining why the project did not require CIPA or site plan review Mr. Schermetzler: (01:07:54): And that I believe this is in our briefing material. Ms. Holmes, are you on the call here? Could you bring that email up for us please? Ms. Ding:: (01:08:10): Sure. If the clerk wouldn't mind giving me permission to share. Speaker 2 (01:08:14): I was just going to say, let me thank you. There you go. Speaker 7 (01:08:21): Let me just pull that up quickly. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 27 of 37 Ms. Ding: (01:08:33): Alright. Right. Ms. Ding:: (01:08:50): Can everyone see? Examiner Olbrechts: (01:08:52): Yes. Ms. Ding:: (01:08:53): Okay. Mr. Schermetzler: (01:08:55): Ms Hu, do you mind just scrolling down so that we can see the whole document please? Ms. Ding:: (01:08:59): Sure. Ms. Ding: (01:09:01): Thank you. Ms. Ding:: (01:09:07): This is the whole email. Mr. Schermetzler: (01:09:11): Ms. D, is this the email you're referring to? Ms. Ding: (01:09:14): Yes. Mr. Schermetzler: (01:09:15): Okay. And I'll give you a moment just to refresh your memory if you want to read through this. Lemme know when you're ready. Ms. Ding: (01:09:47): Okay. Mr. Schermetzler: (01:09:49): What was the purpose of this email? Ms. Ding:: (01:09:52): It was to respond to a letter that Mr. Anuta had sent to the city. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 28 of 37 Mr. Schermetzler: (01:10:00): And what were you trying to communicate to Mr. Anuta in this communication? Ms. Ding:: (01:10:07): That the city did not believe that CPA or site plan review was required for the WinCo building permit application. Mr. Schermetzler: (01:10:18): Scroll back up just to the top, Ms. Holmes, please. And again, this was sent October 31st, 2024, is that correct? Ms. Ding:: (01:10:28): Correct. Mr. Schermetzler: (01:10:30): Mr. Here, examiner. I move to enter this emails and exhibit Examiner Olbrechts: (01:10:34): Any objections. This would be exhibit eight, October 31st, 2024. Email from Jill Ding to Mr. Nta. Okay. Admitted Mr. Speaker 7 (01:10:44): My name Examiner. It appears that that email is in the staff report. Examiner Olbrechts: (01:10:50): Oh, that's in the already in there. Okay. Speaker 7 (01:10:52): Yes. Pages 25 and 26. Examiner Olbrechts: (01:10:57): We just handle it that way. That's fine. Yeah, let's keep it there. Yeah. Mr. Schermetzler: (01:11:03): Ms. D, the appellant identified in their response briefing a Ms. Daisy handle loan, and Laura, I believe is her name. Last name is H-A-N-N-E-L-O-R-E. Have you had any communications with this individual about this project? Ms. Ding:: (01:11:25): No. Ms. Ding: (01:11:49): We can Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 29 of 37 Mr. Schermetzler: (01:11:51): Close this screen. I don't think I have anything further for Ms. Ding. Examiner Olbrechts: (01:11:57): Thank you. Okay, Ms. Kentz, any questions? Mr. Schermetzler: (01:12:01): No questions. Examiner Olbrechts: (01:12:02): Okay. Ms. Ding, I have a few questions before we go back to Mr. Nude for any redirect. First of all, Mr. Anuta had been asking you questions about change to one of the entrances and he was asking if that would change the traffic flow. And you said that you're not a traffic engineer that would be handled by the public works essentially. I mean, did public works look at this project with the issue whether site plan review would be triggered in mind, and then would they tell you if there was a major traffic change? Ms. Ding: (01:12:33): Yes. Examiner Olbrechts: (01:12:34): Okay. And how do you define a minor amendment? Is that defined by code or where does that come from? Ms. Ding:: (01:12:41): It is defined by code. Examiner Olbrechts: (01:12:44): Okay. Do you remember off the top kind of where was or what the definition is? Ms. Ding:: (01:12:53): I think we're looking it up. Examiner Olbrechts: (01:12:55): Okay. Ms. Ding:: (01:12:57): Yeah. Four dash nine dash 200 h two. Examiner Olbrechts: (01:13:12): Okay. And is it a quick definition or I'm just kind of curious for my questions. Ms. Ding:: (01:13:19): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 30 of 37 Yeah, so in general it can't involve more than a 10% increase or decrease in any measurable aspect of the approved site plan. And then it goes on to say including but not limited to area scale building, height, density, commercial area amenities, public or private, open space, landscaping, parking areas, building materials, et cetera. Examiner Olbrechts: (01:13:46): Okay. Okay. Ms. Ding:: (01:13:48): And then it Speaker 2 (01:13:48): Talks about it? Yeah. Examiner Olbrechts: (01:13:50): Okay. And then another, if I find there's any ambiguity in these code requirements, well under the Land use Petition Act, I have to give deference when deference is due, which means that the staff interpretation is consistent with past practice. So kind of curious, I mean have these kind of issues come up before in your review with other replacements of buildings and changes to parking lot circulation, that kind of thing? Can you maybe give some examples of similar circumstances where you found site plan review was not necessary? Pretty broad ended question, but Ms. Ding:: (01:14:24): It is pretty broad. Again, typically if there's no building addition, then we do not take it through site plan review. So if the work is, yeah. Examiner Olbrechts: (01:14:37): Okay. I mean, do you have examples of where parking lot circulation was changed? Number of parking stalls was reduced and still site plan review was not triggered? Ms. Ding:: (01:14:49): I have not done site plan review when we have reduced the number of parking stalls. Examiner Olbrechts: (01:14:54): Okay. Okay. Great. Alright, thank you. Alright, Mr. Anuta, any redirect? Ms. Anuta: (01:14:59): Yes, Ms. Ding, on the issue of a minor amendment definition is correct that you have not seen a traffic study that shows the changes that WinCo is going to make are going to have less than a 10% effect or more than a 10% effect. Right. Ms. Ding:: (01:15:28): Traffic would be reviewed by our development engineering section Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 31 of 37 Ms. Anuta: (01:15:32): And they didn't tell you about any traffic study that showed that the changes would have less than a 10% effect. Right. Ms. Ding:: (01:15:42): So according to the minor modification criteria, traffic isn't one of the criteria. Ms. Anuta: (01:15:49): Okay. Let's go back for a moment to what was marked as exhibit two, the pre-application that had that page C one. I think it is, I'm remembering right, that's the correct one. Let's enlarge the area that's designated as new compactor area, that area that's designated as new compactor area. Ms. Ding, is there a roof shown over that? I don't know. Are there walls shown on that slab? Ms. Ding:: (01:17:06): Well, this is a site plan, so it's hard for me to tell Ms. Anuta: (01:17:16): What's shown. There is a concrete slab connected to the building by joints. Right. Ms. Ding:: (01:17:28): I don't know. Ms. Anuta: (01:17:30): Okay. Well then let's turn to exhibit four. Mr. Ms. Ding: (01:17:35): Okin, Ms. Anuta: (01:17:57): If we could enlarge that a little bit. The concrete slab with the wing wall that is currently proposed. We talked earlier about the fact that that slab is connected to the foundation by joints. Remember that? Speaker 2 (01:18:19): Yes. Ms. Anuta: (01:18:20): Alright. Essentially that slab, although it's a little bigger than the 176 square foot slab, that slab is essentially the same in both drawings. It's just that in this one it has a wing wall on it and the other one it didn't. You agree? Ms. Ding:: (01:18:42): I can't speak to what the other one showed. It was a site planet. I can't speak to that. Ms. Anuta: (01:18:55): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 32 of 37 Okay. You were asked about the current vacant building and parking lot at this site. You can take that down Mr. Okin. And you said putting in another retail store is not going to change the zoning. If I heard your testimony correctly, do you remember that? It's not a change of use. Okay. It's not a change of view. It is practically speaking, a change from what's currently there, which is a vacant building and a vacant parking lot to go from that to an active retail site with presumably hundreds or thousands of cars. It's a practical change in what's going on at the site, but it's not a land use change. Have I got that right? Ms. Ding:: (01:19:51): It's not a land use change. Ms. Anuta: (01:19:53): Okay. That's all the questions I have for Mr. Examiner Olbrechts: (01:20:03): Okay. We'll take a 10 minute break. But first, Mr. Anuta, what other witnesses are you going to be calling today? Ms. Anuta: (01:20:09): I have not been planning to call any other Examiner Olbrechts: (01:20:11): Witnesses. Okay. And Mr. Schmeer, how about you? Mr. Schermetzler: (01:20:18): I'd like to have the break. Let me confer with my clients and see. Examiner Olbrechts: (01:20:22): Okay. Mr. Schermetzler: (01:20:23): If we're going to call any witnesses, but if we could take a 10 minute Oh Examiner Olbrechts: (01:20:27): Yeah, yeah, yeah, sure. And then Ms. Kent, I'm just kind of seeing how long this is going to go. Ms. Kent, do you have any witnesses you plan on presenting today? Speaker 7 (01:20:35): I possibly would call Ms. Dag. Examiner Olbrechts: (01:20:38): Okay. Alright. Yeah, so it may not be too long. Okay. We'll see all at 10 30. See you then. Speaker 7 (01:20:42): Recording stopped. Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 33 of 37 Speaker 2 (01:21:05): I can't hear you. Phil, Examiner Olbrechts: (01:21:07): Can you hear me now? Speaker 2 (01:21:08): Yep. There you go. Examiner Olbrechts: (01:21:09): Okay. Yeah, I wasn't saying anything. That's probably why, that's why. Sorry, I thought you did. I can't hear you. Okay. Should I turn it on? Yeah, let's turn it on. Speaker 2 (01:21:19): Recording in progress. Examiner Olbrechts: (01:21:20): Okay. Back on the record. May 27th, 2025, 10:30 AM on the WinCo building permit appeal. Mr. Anuta had just presented his last and final witness. Any other comments, Mr. Anuta, before we move on to WinCo, Ms. Anuta: (01:21:33): I would only note that we did submit Mr. Oaken reminding me that we submitted exhibits that we entitled one through eight as part of our opposition memorandum. Those include the mission statement, the declaration of MS, and some excerpts. To the extent that those are already in front of you, I'm assuming I don't need to offer them separately already part of our op memo. Examiner Olbrechts: (01:22:04): Okay. And that's the, let's see here. I'll make sure I got the right document here. That's your appeal applicants. Here we go. Okay, so that's a 31 page document, correct? Dated May 21st, 2025. Okay. And Mr. Metzler, did you have a copy of that? Ms. Ding:: (01:22:27): I think he's having trouble hearing us right now. Examiner Olbrechts: (01:22:30): Oh, okay. We will give him a minute to get that to work. Ms. Anuta: (01:22:41): And that is something we served on him, so I was Oh, Examiner Olbrechts: (01:22:44): Okay. Yeah, Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 34 of 37 Ms. Anuta: (01:22:46): But we served that on him as well as the city and provided it to the clerk for you. Examiner Olbrechts: (01:23:07): Let's see. Where's that? So Ms. Holmes, should we take a little five minute break for Mr. Sch metzler Maybe? Yes, please. Okay. Yeah, we'll take a break. Yeah, till, well say till 10 40. We'll see you then. Ms. Ding: (01:23:23): Okay. Thank you. Examiner Olbrechts: (01:23:35): Kurt here back on May 27th, 2020 5, 10 34. We're just waiting for some technical issues to be worked out. And Mr. Metzler, I don't know how much you could hear, but Mr. Anuta wanted to get his response brief to your motion to dismiss entered into the record as exhibit eight as a 37 page document i's trying to bring it up. Do you have any objections to entry of that? Mr. Schermetzler: (01:24:04): No, your Honor. I would just ask that we enter the full briefing schedule in the, Examiner Olbrechts: (01:24:10): Yeah, yeah. Okay. Full Mr. Schermetzler: (01:24:11): Briefing into the record then. Examiner Olbrechts: (01:24:12): So exhibit nine will be the applicant motion to dismiss. Exhibit 10 will be the appeal itself. I think that's, lemme make sure I got everything. Ms. Anuta: (01:24:28): I believe there was also the applicant's reply. Examiner Olbrechts: (01:24:31): Yeah, the applicant replied Exhibit 11. Any objections over those? Okay, so all those will be admitted as well. Alright. Okay. Right. Mr. Schettler, did you want to present any witnesses make any Ms. Ding: (01:24:47): Argument? No. Examiner Olbrechts: (01:24:47): Okay. And do you want to make any comments or anything else get a chance for closing too? Of course. Mr. Schermetzler: (01:24:54): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 35 of 37 I think I'll just reserve for my closing remarks. Examiner Olbrechts: (01:24:57): Okay. Alright. And Ms. Kent, did you want to present any witnesses? Speaker 7 (01:25:01): I do not at this time, your Honor. Examiner Olbrechts: (01:25:03): Okay. Speaker 7 (01:25:03): And we'll rely on the briefings. Examiner Olbrechts: (01:25:05): Okay. Sounds good. Alright, well I guess, well there's no rebuttal or anything like that, so I think we could just jump right to closing. Right. During the order of, let's see, there'd be Ms. Kent, Mr. Sir Metzler. Mr. Anuta, is that okay with everybody? Okay. Ms. Kent, did you have any comments you wanted to make? In closing, Speaker 7 (01:25:25): Your Honor, we would urge you to find a favor of the city that the project does not require a site plan review and was properly found to move forward to the building permit. I am silent as to the CPA determination because it's my understanding from Mr. Randa that he conceded that that was not an appealable decision and so the only issue remaining was the Siteline recruit. Examiner Olbrechts: (01:25:58): Okay. Sounds good. Mr. Sher Metzler? Mr. Schermetzler: (01:26:04): Yes, your Honor. Thank you. Thank you for your time this morning. What this really amounts to is the appellant's bootstrapping ACE a review in this appeal. That's all that this amounts to the testimony that we heard from Ms. Day this morning. It's clear that staff was operating within the discretion that staff has and within the city code to find that this project was CP exempt and as a CP exempt project. There's only a few exceptions that then would require site plan review and none of those exceptions are triggered here. The parking issue was addressed by Ms. Dane. There's no new parking being added and to the extent that there's any changes in the parking lot, those changes are less than 10% of the overall site project and the design. And in fact, what's what's a bit ironic about this whole appeal is that the changes to the parking lot would be things that presumably Mr. Anuta and his client would want in mitigation, adding landscaping, adding buffers, doing things that address some of the environmental concerns, which again, should not be a subject of this appeal because those are all SEPA issues. Right. The issues that were raised in the briefing by the appellant were air, were water quality, were traffic issues. Am I frozen? Can you hear me? Examiner Olbrechts: (01:27:33): Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 36 of 37 No, I can hear you or I can. Mr. Schermetzler: (01:27:34): Okay. It just looks like the screens are frozen. I have a funny frozen face on my screen unfortunately. But all of those issues are se a issues and this project is se a attempt and as your honor correctly pointed out, staff are afforded discretion in these decisions and we heard nothing today to overturn that discretion that staff has afforded in this space. Moreover, the appellate has the burden here and Ms, I don't know if I'm pronouncing her right, her name correctly and alarm, she wasn't even here today. She didn't provide any testimony. There are no comments from her in the record. It appears that she was selected only after the issue of standing was raised. And our briefing addresses the problems with allowing a shadow group to bring legal appeals and what that could look like should this appeal go forward. Even if today the appeal occurs and all this information is considered on this informal group, if this case goes any further, it's a lupa, which would be the next stage of appeal. (01:28:48): There's a whole host of problems that this creates and that's why the city code correctly incorporates the Lupa standards into its own standards and why the list of entities that are considered for appealing city determinations administratively focus on legal entities or a person. Now, if Ms. H Lauren was here and representing herself and maybe she was utilizing this appellate entity as a fictitious name for herself, fine, maybe that would be something that the hearing examiner that you could consider and allow maybe as a deviation from these rules. But clearly here there's really no indication that there's any agreed party and that person that was identified by the appellants hasn't came forward, hasn't provided any testimony about how they're aggrieved or harmed by this project. And it just really underscores that this appeal is really trying to attack something that isn't even administratively allowed to be appealed under the city code, which is a CIPA intent determination. That's all this appeal amounts to. So with that, your Honor, we'd ask that the hearing examiner dismisses this appeal and allows the billing permit to move forward. Examiner Olbrechts: (01:30:07): Okay. Thank you sir. Alright, Mr. Anuta, final word. Ms. Anuta: (01:30:12): Well, let me start with that last set of comments. First, Ms was very clear in her declaration, which is part of the exhibits you have that LWFF was speaking on her behalf raising concerns for her. What you just heard in argument would undo the entire premise of membership standing for organizations. And it's not the law either in Washington nationally or under the city of Rent and code, which is what really matters. The argument that WinCo is making that somehow an organization can't participate on behalf of its members because it's not a legal entity, is disavowed by the very language of the code, which defines a person as either other legal entity or any other entity whatsoever. Neighborhood associations, for example, and land use situations are sometimes not incorporated. Doesn't mean they can't represent their members turning to the merits. The point here that we've tried to make from the start in both our briefing and our appeal and then with the evidence today is that this is a large scale development. (01:31:42): It includes structural changes to the building, it includes an expansion of the building both internally and externally with a large concrete slab, which is joined by joints to the building. It is the same slab that was there before. It's bigger now than it was in the pre-app drawings when staff correctly determined it was Appendix A - Winco Appeal (Completed 06/09/25) Transcript by Rev.com Page 37 of 37 subject to CIPA and site plan. And the drawings show that it's still there, it's still connected, it's still constitutes a structure and the thing the walls on it constitute a structure. And this all constitutes development, which means it triggers site plan review. In fact, WinCo acknowledges in its briefing in its reply that they agree this constitutes development. They just think that because CIPA was waived by the city, that site plan is also waived. But as we've outlined for you, that's not true if the project involves 300 parking stalls or more, and this one clearly does. (01:32:47): Now the city and WinCo are trying to argue that you have to be constructing 300 or more new parking stalls. But as we outlined for you in our offer memo, that's not what the code says. And they're asking you to add words to the code that aren't there and to interpret it in a way that is something different than what it actually says. They could have written a code that said if you're constructing 300 more stalls, they didn't, that's not what it says. So you have to give meaning to what it says and not add words to it. We've outlined the case law on that. We've shown that the appeal was timely filed to the site, to the building permit, which is what's an issue here. The approval of the building permit, no one's contested that it was untimely as to the building permit approval. (01:33:43): And we've shown that it constitutes development and we've shown that it should have a site plan because it's changing the traffic from what's there now and has been there, which is a vacant building and a lot for four years or so. There's going to be huge impacts from traffic on the neighborhood. And one thing that council argued that I think you'll have to check your own notes, but he asserted that there was less than 10% impacts. Well, I asked Ms. Ding about that. There's no study showing that there's no traffic study that has been done, so we don't know that there's less than 10% impacts. It could well be more going from nothing, which is there now in terms of traffic to a full WinCo is certainly likely to be more than a 10% change under those circumstances. We think we've shown that this project should go through site plan and it should, that site plan process should create mitigation for some of the impacts. And for those reasons, the city was mistaken in the second round and it was correct in the first round that the project should have site plan review and we'd ask you to uphold the appeal and find that the city should go back and do site plan review. Examiner Olbrechts: (01:35:08): Okay. Thanks Mr. Randa. Alright, well yeah, I'm going to have to take a close look at the minor change definition and to the extent there's any ambiguity, I think an important consideration is, is there any point to site plan review If you could go either way on that. It's an interesting issue. I'll look at it very closely and I got a decision doing a couple of weeks, so I think we covered everything pretty well. Like I said, it was pretty focused on just one fairly minor issue and glad we were able to get that done in less than a couple hours anyway, so I'll get that decision out real soon. Thanks all for participating and have a great rest of the week. We're adjourned.