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Home My WebLink About2025-11-21 Response to Motion to DismissMCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 APPELLANT’S RESPONSE TO MOTION TO DISMISS - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE HEARING EXAMINER FOR CITY OF RENTON In the Matter of Appeals of ION Renton, LLC From the Fifth Notice of Violation & Order to Correct Issued by Community & Economic Development Department Community & Economic Development File Number: CODE 23-000667 & CODE 24- 000670 APPELLANT’S RESPONSE TO MOTION TO DISMISS APPEAL AS UNTIMELY FILED I. INTRODUCTION Appellant ION Renton, LLC (“ION”) respectfully requests that the Hearing Examiner deny the City of Renton’s (“City”) Motion to Dismiss (“Motion”). ION did not appeal the September 26, 2025 Notice of Agreement Violation (“NAV”) issued by the City and does not contest that it is too late to do so. ION has, however, timely appealed the October 15, 2025 Fifth Notice of Violation and Order to Correct (“Fifth NOV”). Due to a paperwork error, the caption of ION’s October 15, 2025 appeal statement (“Appeal Statement”) addresses the NAV rather than the Fifth NOV. ION regrets the error but respectfully requests that this appeal be treated as it was filed and intended: an appeal of the Fifth NOV, MCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 APPELLANT’S RESPONSE TO MOTION TO DISMISS - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 submitted the same day the Fifth NOV was received. Accordingly, although the Motion is correct that the NAV was not timely appealed, there is no basis for dismissal of this action. II. STATEMENT OF FACTS Other than the assertions that ION appealed the NAV and did not appeal the Fifth NOV, which are incorrect, ION does not dispute the City’s statement of facts for purposes of this Motion. In sum, on June 4, 2025, ION and the City entered a Voluntary Correction Agreement (“VCA”) regarding King County Tax Parcel No. 7564600055 (the “Property”), which is located in the City and owned by ION. See Declaration of M. Patrice Kent in Support of Motion to Dismiss (“Kent Dec.”), Exhibit 1. In September 2025, the City determined that ION was not in compliance with the VCA. On September 29, 2025, the City served ION with the NAV. Kent Dec., Exhibit 4. The final page of the NAV is a one-page model appeal statement that allows the recipient to appeal the NAV by checking a box and providing a signature and contact information. Id. at 8. ION did not appeal the NAV. On October 15, 2015, the City served ION with the Fifth NOV. Kent Dec., Exhibit 7. The final page of the Fifth NOV is a one-page model appeal statement that is identical to the model statement in the NAV except for one line in the caption and the numbering at the bottom of each page. Compare id. at 16 (“Daily Fines – 5th Notice & Order: $50,200.00,” “Page 16 of 16”) with Kent Dec., Exhibit 4 at 8 (“Resumption of Daily Fines $23,300.00 – Notice of Agreement Violation,” “Page 8 of 8”). MCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 APPELLANT’S RESPONSE TO MOTION TO DISMISS - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 15, 2015 – the same day that it received the Fifth NOV – ION checked the appeal box on the model appeal statement, added its signature and contact information, and sent the statement to the City via mail and email. Kent Dec., Exhibits 8 and 9; Declaration of Chris Kelly (“Kelly Dec.”), attached to this Response as Exhibit 1, ¶ 5. ION’s intent was to appeal the Fifth NOV, not the NAV. Kelly Dec., ¶ 6. However, ION’s representative mistakenly used the model appeal statement from the NAV rather than the model appeal statement from the Fifth NOV. Id., ¶ 7. Accordingly, the Appeal Statement as filed refers to the NAV. Kent Dec., Exhibit 9. On November 13, 2025, the City filed the Motion, which asserts that the Examiner does not have jurisdiction over this appeal because ION appealed the NAV but failed to do so in time. Motion at 4. The Motion also states that ION did not appeal the Fifth NOV. Motion at 3. ION agrees that it did not appeal the NAV. Kelly Dec., ¶¶ 3, 9. ION did appeal the Fifth NOV on the day it received the Fifth NOV, albeit while mistakenly utilizing the wrong form. Id., ¶ 5. ION did not become aware of the error until informed of it by the City in November 2025, after more than 15 days had elapsed since service of the Fifth NOV. Id., ¶ 8. III. ARGUMENT Renton Municipal Code (“RMC” or “Code”) 1-10-5.A and B provide that the recipient of a notice of violation may appeal it by requesting a hearing within 15 days of receipt. ION met with this requirement by requesting a hearing on October 15, 2025, the same day it received the Fifth NOV. ION inadvertently attached the form printed at the bottom of the NAV, which is materially identical except for the caption line and page numbering, but the filing was nonetheless sufficient to comply with the filing requirements and convey its intent to the City. MCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 APPELLANT’S RESPONSE TO MOTION TO DISMISS - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nothing in the Code requires dismissal of a timely appeal based solely on a captioning error. The purpose of the appeal provisions is to ensure that the appellant communicates its intent to appeal within the deadline and provides the information necessary for the Examiner and the City to process the hearing. ION has done that. The timing of the filing, the fact that it followed immediate receipt of the Fifth NOV, and the absence of any contemporaneous action involving the NAV all communicated that the appeal related to the Fifth NOV. The mistaken use of the NAV form did not prejudice the City and did not impede the processing of the appeal. ION regrets the paperwork error that has led to the City’s Motion, but requiring dismissal based on an error of this kind would improperly elevate form over substance. Correcting the caption here preserves the parties’ ability to address the Fifth NOV on the merits and aligns with the purposes of the appeal procedures. Dismissing the appeal, by contrast, would deny ION any opportunity for review of an order it timely challenged and would do so despite the absence of any prejudice to the City. For these reasons, the Hearing Examiner should reject the Motion’s characterization of the October 15 filing and should treat ION’s timely submission as an appeal of the Fifth NOV. DATED this 21st day of November, 2025. s/Ian Morrison, WSBA #45384 s/David Carpman, WSBA #54753 McCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 Tel: 206-812-3388 Fax: 206-812-3398 Email: imorrison@mhseattle.com Email: dcarpman@mhseattle.com Attorneys for ION Renton, LLC EXHIBIT 1 MCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 DECLARATION OF CHRIS KELLY - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 BEFORE THE HEARING EXAMINER FOR CITY OF RENTON In the Matter of Appeal of ION Renton, LLC From the Fifth Notice of Violation & Order to Correct Issued by Community & Economic Development Department Community & Economic Development File Number: CODE 23-000667 & CODE 24- 000670 DECLARATION OF CHRIS KELLY IN SUPPORT OF APPELLANT’S RESPONSE TO MOTION TO DISMISS APPEAL AS UNTIMELY FILED I, Chris Kelly, declare as follows: 1. I am competent to testify and make this declaration based on my personal knowledge. 2. I am the Director of Construction for AAA Management. AAA Management is affiliated with ION Renton, LLC (“ION”), and I am authorized to act on ION’s behalf with respect to the Property that is the subject of this appeal. I am familiar with communications between ION and the City of Renton (“City”) regarding the Property. 3. On or about September 29, 2025, ION received a Notice of Agreement Violation (“NAV”) from the City. ION did not appeal the NAV. Docusign Envelope ID: F8B984FA-E1DD-44FC-BEEE-106DBD2FF439 MCCULLOUGH HILL PLLC 701 Fifth Avenue, Suite 6600 Seattle, Washington 98104 Phone: 206.812.3388 Fax: 206.812.3389 DECLARATION OF CHRIS KELLY - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 4. On October 15, 2025, ION received the Fifth Notice of Violation and Order to Correct (“Fifth NOV”) regarding the Property. ION immediately decided to appeal the Fifth NOV and understood it could do so within 15 days of receipt. 5. On October 15, 2025, the same day that ION received the Fifth NOV, I prepared an appeal statement on behalf of ION and submitted it to the City via mail and email. This submission is ION’s appeal of the Fifth NOV. 6. When preparing the appeal, I intended to use the model appeal statement page that was attached to the Fifth NOV. The appeal pages attached to the NAV and the Fifth NOV are extremely similar, with nearly identical language and formatting. 7. Due to a paperwork error, I inadvertently signed and submitted the appeal statement page that had been attached to the NAV issued in September 2025, rather than the nearly identical appeal page attached to the Fifth NOV. 8. At the time I submitted the appeal statement on October 15, 2025, I believed I was using the correct appeal form for the Fifth NOV. ION first learned that the wrong appeal page had been used when the City notified ION of the issue in November 2025. 9. ION has appealed the Fifth NOV and not the NAV. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. ___________________________ Chris Kelly Location: _____________________ Date: _________________ Docusign Envelope ID: F8B984FA-E1DD-44FC-BEEE-106DBD2FF439 San Diego CA 92108 11/21/2025