Loading...
HomeMy WebLinkAboutLUA-07-037 - Report 1AFFIDAVIT OF SERVICE BY MAILING STATE OF WASHINGTON ) ss. County of King ) Nancy Thompson being first duly sworn, upon oath, deposes and states: That on the 12"' day of June 2007, affiant deposited via the United States Mail a sealed envelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. Signature: 1 SUBSCRIBED AND SWORN to before me this 19 day of �,. U/n-4- , 2007. Notary Public i and f r the State of Washington Residing at , therein. Application, Petition or Case No.: Examiner's Decision on Appeals of the Landing Building Permit Application Approvals LUA 07-031 and LUA 07-037 The Decision or Recommendation contains a complete list of the Parties of Record. Bu k Gor on LLP AtIornevs at LaW MEMORANDUM OF TRANSMITTAL TO: Mr. Fred Kaufman, Hearing Examiner c/o Bonnie Walton City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 DATE: June 7, 2007 2025 First Avenue, Suite 500 Seattle, WA %121-3140 206-382-9540 206-626-0675 Fax www.buckgordon.com RE: Alliance for the South End re: Building Permit Application Approvals Appeals We transmit the following: Signed Joint Stipulation and Order (re appeals) ❑ For your information. ❑ For your signature and return to this office. ❑ Please file original, acknowledge receipt on copy, and return acknowledged copy in enclosed self-addressed envelope. Q Other: Please have Mr. Kaufman sign the enclosed joint stipulation and order and return to our offices in the enclosed self-addressed, stamped envelope. Please give us a call with any questions. TRANSMITTED BY: Megan M. Nelson MMN:Io Enclosure cc: All Counsel of Record YAW RASEISETTLEM ENT\TM060707. MM N.DOC 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 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of ) } Alliance for South End (ASE) and } B060540, B060688 Brad Nicholson re: } JOINT STIPULATION AND ORDER The Building Permit Application Approvals ) for Buildings 101, 102, and 200 ) I. STIPULATION IT IS HEREBY STIPULATED by and between the parties hereto, by and through their counsel of record, that: 1. The parties in the above -referenced case have resolved this matter through a settlement, memorialized in a Settlement Agreement and Release dated for reference purposes June 5, 2007, 2. Pursuant to the Settlement Agreement and Release, the parties hereby jointly request that the Hearing Examiner dismiss the appeals in the above -referenced case with prejudice. STIPULATION - I BuckO Gordan LLP C:IDOCUMENTS AND SE"171NGSIDUNCANIL0CAL SE'TTINGSITEMPORARY INTERNET 2025 First Avenue, Suite 500 Seattle, WA 98121 FILESIOLKA8\JT STIP AND ORDER HE BLDG PERMIT AMDOC {20b} 382-9540 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 DATED this day of June, 2007 WN Attorneys for Petitioners Brad Nicholson and Alliance for South End (ASE) HILLIS CLARK MARTIN & PETERSON, P.S. qV-7� .Hi s, WSBA#1704 Durkan, WSBA 411845 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners CITY OF NTON By Zanetta L. Fontes, SBA #9604 Assistant City Attorney [REMAINDER OF PAGE IS INTENTIONALLY BLANK] STIPULATION - 2 Bucko Gordon LLP C:\DOCUMENTS AND SETTINGS0UNCAMLOCAI. SE'n'1NGSITEMP0RARY NTERNET 2025 First Avenue, Suite 500 Seattle, WA 98121 FILESIOLKA8UT STIP AND ORDER HE BLDG PERMIT APP.DOC 40 (206j 3$2-9540 1 II. ORDER 2 Pursuant to the foregoing Stipulation of the parties, it is hereby ORDERED that the appeals 3 in the above -referenced case are DISMISSED with prejudice. 4 5 DONE this �0 day of June, 2007. 6By 7 City of Reri n Hea4ng Examiner 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATION - 3 BuckiDGordon LLP C:IDOCUMENTS AND SETTINGSIDUNCANILOCAL SETTINGSITEMPORARY INTERNET 2025 First Avenue, Suite 500 8121 FILESIOLKA8VT STIP AND ORDER HE BLDG PERMIT APP,DOC Seattle, WA (206) 382-954040 CRY OF RENTON 2 MAY 2 2 2007 RECD CITY Cl REK $ OFFICE FFICE 4 5 6 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 7 8 In the Matter of the Appeals of NO. B60540, B60688 9 Alliance for South End (ASE) and Brad CITY OF RENTON' S REPLY TO Nicholson re: APPELLANTS' RESPONSE TO 10 APPLICANT'S AND CITY' S The Building Permit Applications Approvals MOTIONS TO DISMISS BUILDING 11 for Buildings 101, 102, and 200 PERMIT APPEALS 12 I. INTRODUCTION 13 In their Response, Appellants have failed to explain how the city can refuse to 14 issue a building permit where all conditions precedent to such issuance have been 15 16 met. Appellants do not explain in what way any building proposed for The Landing 17 does not comply with the provisions of the Building Code requirements (local or 18 international). Rather, Appellants want the Hearing Examiner to treat the building 19 permits as though Appellants had, in fact, sought and obtained judicial relief, after 20 posting of a bond, to stop construction. Appellants would have the city violate the 21 rights of the landowner or developer to have building permits issue based on prior 22 approvals that have not been reversed. The issuance of building permits under these 23 24 circumstances are ministerial only and appeal to the Hearing Examiner is not the 25 proper forum to challenge the building permits. 26 27 CITY OF RENTON'S REPLY TO A 28 APPELLANTS' RESPONSE TO ORIGINAL APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 1 BARREN BARBER & EONTES, P.S. ATTORNEYS AT LAW 100 SOUM SECOND STREET • POST OFFICE ROX 626 RENTON, WASHENGTON 98057 PHONE 1425) 255-%76 • FAX (42.5) 255,5474 1 II. ARGUMENT AND AUTHORITIES 2 A. The Building Permits Must Issue 3 In a pre-LUPA case, the state supreme court determined that 5 Once the application for a building permit and the plans and specifications filed with it show that the proposed building will 6 conform to the zoning regulations and meet the structural requirements of the building code of the city, the permit shall issue as a matter of 7 right, and the ordinances vest no discretion in the building 8 department of the city to refuse either the application for or to deny the issuance of the building permit. (Emphasis added.) 9 State ex ref Craven v. Tacoma, 63 Wn.2d 23, 28, 385 P.2d 372 (1963). 10 In the case before the Hearing Examiner, the Appellants have not identified 11 any violation of structural requirements of the building code for Buildings 101, 102, 12 or 200. If Appellants were complaining that the structural integrity of any of the 13 buildings was suspect and could put people at risk, this appeal would make some 14 sense. If the Appellants were complaining that the disabled accessibility to any of 15 16 these buildings was in violation of building code requirements, this appeal would 17 make some sense. Those kinds of complaints are not made herein. 18 The state of the law did not change with the enactment of the Land Use 19 Petition Act (LUPA). RCW 36.70C. In 1998, the high court decided Mission 20 Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998). In that case, a 21 developer had submitted all necessary applications for a Planned Unit Development 22 to construct apartment buildings. After all of the necessary submissions were 23 24 received by the city and hearings held, the city notified the developer that it was 25 prepared to issue a grading permit. Thereafter, the city refused to issue the permits 26 pending the results of additional studies. Ultimately, the supreme court ruled in favor 27 CITY OF RENTON' S REPLY TO 28 APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 2 WARREN BARBER 8 FONIEB, P.S. ATTORNEYS AT LAW WO SOUTH SECOND STREET - POST OMLE BOX 626 RENTON. WASH, NGTON 9W57 PHONE µM 255.8678 • FAX (42SV 255-5414 1 of the developer, saying, "[i]n the eyes of the law the applicant for a grading permit, 2 like a building permit, is entitled to its immediate issuance upon satisfaction of 3 relevant ordinance criteria and the State Environmental Policy Act of 197 i ." 4 5 (Emphasis added.) Mission Springs, at 960. 6 Appellants have not explained to the Hearing Examiner how it is that the city T could ignore the state of the law and withhold the building permits on The Landing 8 where there are no violations of the Building Code. The fact is the city could not. 9 There was no discretion involved, and, consequently, nothing to appeal. 14 B. Subjecting The Building Permits To Policy (Discretionary) Analysis 11 Would Be Unconstitutional 12 13 "Administrative authorities are properly concerned with questions of 14 compliance with the [zoning] ordinance, not with its wisdom. To subject individuals 15 to questions of policy in administrative matters would be unconstitutional." Craven, 16 .supra, at 28. 17 The Mission Springs court also dealt with the question of the constitutionality 18 of a city's conduct that related to withholding a grading permit. At 962, the court 19 24 said: "Mission Springs had a constitutionally cognizable property right in the grading 21 permit it sought."' 22 The Appellants, who claim to be concerned about the city as a whole, would 23 have the city travel the path between the monsters of Greek mythology, Scylla and 24 Charybdis. On the one side of the channel, if the city were to withhold the permits it 25 26 The Mission Springs court went on to discuss the concepts of takings and substantive due process, a � i discussion left for another day in another forum. CITY OF RENTON' S REPLY TO 28 APPELLANTS' RESPONSE TO APPLICANT'S AND CTTY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 3 WARRED BARBER 6 FOIE TES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON. WASHINGTON 46057 PHONE U25Y 155-ft678 . FAX (425) 155-5474 I would face litigation from the developer; on the other side, if the city were to grant 2 the permits it would face litigation from the Appellants. The city chose not to violate 3 constitutional rights and issued the permits. 4 5 Appellants' appeals of the building permits are based on the premise that the 6 underlying Master Site Plan and Site Plan were flawed. Their apparent theory is that 7 if either the Master Site Plan or Site Plan is flawed, then no building permits reliant 8 thereon can issue. Appellants could have sought a judicial remedy to stay the actions 9 on The Landing, pursuant to RCW 36.70C.100. Only the Appellants know for sure 10 why they chose not to take that route, especially in light of the fact that there is a 11 12 LUPA matter pending in superior court. Appellants are asking the Hearing Examiner 13 for relief that Appellants have not seen fit to ask of the superior court, the forum that 14 could grant the relief sought_ 1 S C. Brad Nicholson's Grounds For Standing Do Not Relate To His 16 Building Permit Anneals. 17 Appellants have failed to explain how Brad Nicholson's (the only identified 18 member of ASE) alleged grounds for standing relate to the building permits. His 19 20 complaints that the stormwater runoff will harm the rivers and Lake Washington have 21 not been shown to be linked to the structural requirements of the building code. 22 Neither have the Appellants explained how Nicholson's traffic complaints are linked 23 to the building code. Nicholson's complaints that he was not allowed to participate in 24 the process is unavailing. There is no process in which to participate for purposes of 25 the building permits, which must issue as a matter of right after the Site Plan 26 approval. 27 CITY OF RENTON'S REPLY TO 2$ APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 4 WARREN EAREER & I~ONTES, P. S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON. WAS" NGTON 98057 PHONE )425) 255_m?s FAX (425) 2.55-5474 1 2 3 4 D. Nicholson and ASE's lack of stand -- 5 Renton incorporates by this reference, the arguments made on behalf of 6 Harvest Partners regarding the standing (or lack thereof) of Brad Nicholson and ASE 7 relating to the Building Permit Appeals (Landing III and IV). Further, Renton 8 incorporates by this reference the arguments made in briefing by Renton and Harvest 9 Partners relating to the standing of ASE and/or Nicholson in the Appeals of the 10 Master Site Plan Approval and the Site Plan Approval for The Landing (Landing I 11 12 and II). 13 F. Site Develo meat Plan Re ulations And Building Code Provisions Do 14 Not Prevent the Issuance of The Landina's Building Permits, 15 Appellants argue that the Site Development Plan Regulations serve to prevent 16 the issuance of the building permits herein. (See, page 9, ln. 6, et seq. of Appellants' 17 Response.) However, the provisions cited by Appellants do not require the city to 18 withhold the building permits at issue here. Rather, those section allow the building 19 20 permits to issue after the Reviewing Official has approved the Site Plan (RMC 4-9- 21 200B(2)) and after the appeal period has expired (RMC 4-9-200K). Both of those 22 conditions have been met in this case. 23 Appellants also argue that the international Building Code prohibits the 24 issuance of the subject building permits- See 10 In. 4 et s of Appellants' J g p (See, Pg� � �1- PP 25 response.) Once again, Appellants aim the arrow at the wrong target. The quoted 26 section (see page 10, lines 5-11, of Appellants' Response) says nothing of prohibiting 27 28 CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO APPLICANT'S AND CITY' S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 5 WARDEN BARBER & FON'ITES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE Apt( 626 RENTON. WASHINGTON 98057 PHONE (425) 255-M?t; • FAX (425) 255,5474 I the issuance of the permits. Rather, that provision stands for a proposition with which 2 the city agrees- If, after issuance of the permits, a quasi-judicial or judicial forum 3 determines that the underlying Site Plan approval is reversed, the fact that the city 4 5 issued the building permits cannot be used as an estoppel against the city for ordering 6 a stoppage of work. 7 III. CONCLUSION S The issuance of the building permits for buildings 101, 102, and 200 were 9 non -discretionary, ministerial acts. Appellants make no complaints related to any 10 substantive requirements of the building code. The permits must issue as a matter of 11 12 right, the denial of which would be unconstitutional. Accordingly, these appeals must 13 be dismissed. 14 15 DATED this 22 d day of May, 2007. 16 WARREN BARBER & FONTES, PS 17 18 6Att 19 L. Fo�xtes, WSBA 9604 eys for City of Renton 20 21 22 23 24 25 26 27 CITY OF RENTON'S REPLY TO 28 APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 6 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON. WASHINGTON 9W57 PHONE 142Sy 2SS_967B • FAX (425) 255-5474 I 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 OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: Building Permit Approvals for Buildings 101, 102 and 200. B060540, B060688 APPLICANT'S REPLY TO ASE AND NICHOLSON RESPONSE TO MOTIONS TO DISMISS ASE AND NICHOLSON APPEALS FROM THE LANDING BUILDING PERMIT APPROVALS L INTRODUCTION Applicant Harvest Partners brings this Reply to Appellants' responses to Applicant's and City's motions to dismiss Appellants' building permit appeals for The Landing project. Because Appellants have failed to provide sufficient evidence to establish that Mr. Nicholson and ASE have standing to bring these appeals, and because the Examiner lacks jurisdiction to hear the claims made by Appellants in these appeals, Applicant respectfully requests that the Examiner dismiss Appellants' appeals of the Building Permit Approvals. IL STATEMENT OF FACTS On November 28, 2006, the City of Renton issued a decision approving building permits for Buildings 101 and 102. Buildings 101 and 102 are located in the southeast quadrant of The Landing project. On February 27, 2007, the City of Renton issued a decision approving a building permit for Building 200. Building 200 is located in the north central portion of the southwest quadrant of The Landing project. The City's approvals of the building permits for Buildings 101, 102 and 200 in The Landing are collectively referred to herein as the "Building Permit Approvals." HILLIS CLARK MARTIN & Applicant's Reply - Page 1 of 8 PETERSON ' P.S. COPY 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 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 Additional facts relevant to this Reply are set forth in Applicant's Motions to Dismiss ASE and Nicholson Appeals from The Landing Building Permit Approvals for Lack of Standing, which motions are incorporated herein by this reference. III. ARGUMENT' A. Mr. Nicholson Lacks Standing 1. Mr. Nicholson's alleged injuries do not arise from the Building Permit Approvals. To establish standing, the appellant bears the burden of demonstrating that "he or she will be specifically and perceptibly harmed by the proposed action." RMC 4-5-11O.E(3)(b); RMC 4-11-010. In these appeals, the only actions subject to challenge are the City's Building Permit Approvals. The basis for Mr. Nicholson's standing, therefore, must arise from the Building Permit Approvals, not from prior City approvals of the master plan or site plan for The Landing. Despite the Examiner's specific request for briefing on this issue at the pre -hearing conference, and despite extensive briefing filed by Mr. Nicholson and ASE in their Responses, Appellants have nevertheless failed to establish that Mr. Nicholson suffers any injury in fact arising directly from the Building Permit Approvals. Instead, Appellants attempt to rest Mr. Nicholson's standing upon claims of injury arising solely from prior approvals, such as alleged harm from violations of development standards related to maximum setbacks (an issue raised in the site plan appeals), or alleged harm from the inappropriate presence of suburban -style development (an issue raised in the master plan and site plan appeals). See Declaration of Brad Nicholson, at 2. Perhaps recognizing their inability to assert any direct injury from the Building Permit Approvals themselves, Appellants try to bolster their position with citations to other cases in which appellants were deemed to have standing for purposes of challenging building permit appeals. Appellants' Response, at 13. However, the facts of those cases only magnify the 1 In addition to the arguments presented herein, Applicant incorporates by this reference the arguments made on behalf of the City of Renton in the City of Renton's Reply to Appellants' Response to Applicant's and City's Motions to Dismiss Building Permit Appeals, dated May 22, 2007. Applicant's Reply - Page 2 of 8 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2926 206,623.1745; fax 206,623.7789 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 deficiency of Appellants' standing claims in the current appeals. For example, the Asche decision involved a challenge to a building permit approval based upon an injury arising directly from the building itself — specifically, that the building's height exceeded the maximum allowable height under the zoning ordinance. Asche v. Bloomquist, 132 Wn.App. 784 (2006). Unlike the facts in Asche, however, Appellants' Response lacks any allegation of direct injury from the buildings themselves. Indeed, Appellants' appeals appear to focus on everything but the approved buildings, such as the location of the buildings relative to the streets, or the presence of surface parking driveways near the buildings. Appellants point to no specific criteria, in the Renton Municipal Code or the International Building Code, requiring consideration of such extraneous items prior to approval of a building permit. To the contrary, such site elements should be, and have been, considered at earlier stages of development review, including the master plan and site plan stages. Any claims based upon these supposed injuries reflect improper collateral attacks on prior City approvals and, as discussed below, are not properly before the Examiner in the present appeals. z Alleged procedural injuries are an insufficient basis for standing. Appellants also attempt to show direct harm from the Building Permit Approvals by asserting certain "procedural injuries," such as failure to hold hearings before the Examiner prior to the Building Permit Approvals. See, e.g., Appellants' Response, at 12. Even if these were valid claims (which they are not), loss of an alleged procedural entitlement, by itself, does not constitute sufficient injury in fact to support standing to sue. Allan v. Univ. of Wash., 140 Wn.2d 323, 332-33, 997 P.2d 360 (2000) ("Absent a concrete interest, injury -in -fact standing ... is not conferred upon [a plaintiff] merely on the basis of an asserted failure on the part of the agency to follow procedural requirements"). As the Supreme Court has determined, there must be a specific, direct injury beyond the alleged procedural harm to establish standing: We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect Applicant's Reply - Page 3 of 8 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 some threatened concrete interest of his that is the ultimate basis of his standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992). As discussed above, Appellants fail to establish any specific, concrete injuries in fact to Mr. Nicholson. Their claims of procedural injury are therefore insufficient to grant standing. 3. Mr. Nicholson cannot use this forum to raise issues arising from prior approvals. Washington courts prohibit appellants from using appeals of land use decisions to collaterally challenge prior approvals. See, e.g., Habitat Watch v. Skagit County, 155 Wn.2d 397, 120 P.3d 56 (2005). The only approvals at issue in these appeals are the Building Permit Approvals. Therefore, Mr. Nicholson's appeals of the Building Permit Approvals must be limited to the validity of these approvals. Mr. Nicholson cannot in these appeals collaterally challenge the site plan or master plan approvals, nor can his standing for these appeals be based upon injuries arising out of those previous decisions. As discussed above, examination of Mr. Nicholson's supposed "injuries" reveals that none of the injuries arises from the Building Permit Approval. Instead, each of the purported injuries relates back to prior approvals for The Landing, including the master plan and site plan approvals. By attempting to establish standing with claims of injury arising from prior approvals, Mr. Nicholson engages in a collateral attack on the prior City decisions. Such a collateral attack is not permitted. Despite Appellants' claims that they are not engaging in collateral attacks on prior approvals, various sections of Appellants' Response make their true intent perfectly clear: By filing these appeals of the Building Permit Approvals, Nicholson and other members of ASE are seeking to vindicate their interests in the enforcement of maximum setbacks, pedestrian friendly design regulations, and adequate Site Plan and environmental review for the benefit of their community. Appellants' Response, at 10-11. Notably, all of these interests Mr. Nicholson seeks to "vindicate" were issues raised in earlier appeals. Again in the next sentence, Appellants indicate their intent to attack the already -completed environmental review process via these appeals: "each structure that is built using approvals piggy -backed on the City's flawed and outdated environmental analysis will contribute incrementally to unmitigated stormwater and HILLIS CLARK MARTIN & Applicant's Reply -Page 4 of & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 I 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 traffic impacts." Appellants' Response, at 11. As evidenced by this language, Appellants' primary intent in filing these appeals appears to be an attempt to get "another bite at the apple" of prior approvals, including the environmental review, the master plan approval, and the site plan approval. Rather than openly admit to their use of the City's appeal process to collaterally attack prior approvals, however, Appellants instead attempt to inject additional criteria into the City's building permit review process. For example, Appellants point to sections of the Renton Municipal Code relating to the City's review of site plan applications, suggesting "an intent by City Council to subject building permits to continuing review for compliance with the Site Plan itself as well as particular Code requirements governing site design." Appellants' Response, at 9 (emphasis added). This is a mischaracterization of the Renton Municipal Code. The specific code criteria governing site design are applicable to review of master plans and site plans, not building permit applications.2 Appellants' suggestion that these same code requirements must be individually applied again in the City's review of building permit applications — their so-called "redundant review"3 — has no basis in the Renton Municipal Code. Once a master plan and site plan have been approved, as here, those criteria have been met. Prior to approving the building permit application, the City need not step through each and every element of the site plan criteria yet again. 4. Standing far one appeal does not necessarily result in standing in a separate appeal Finally, Appellants suggest that because Mr. Nicholson was found to have standing in prior appeals, he must therefore be granted standing in this appeal. Appellants' Response, at 8 ("Just as Nicholson has standing to appeal the Site Plan due to harms from nonconformities and impacts associated with The Landing, he necessarily has standing to appeal building permit decisions..."); Appellants' Response, at 14 ("The Hearing Examiner has already held that these allegations of harm give Bran [sic] Nicholson standing"). This Z The Renton Municipal Code makes this very clear, stating: "Site Development plan review is divided into two types: Master Plan and Site Plan." RMC 4-9-200.A (emphasis added). ' Appellants' Response, at 22. Applicant's Reply - Page 5 of 8 HILLI3 CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 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 assertion has no support in the Renton Municipal Code or under Washington or federal standing jurisprudence. To the contrary, courts have consistently held that standing must be established as to each and every claim. See, e.g., DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.''). Appellants' reliance upon prior decisions granting Mr. Nicholson standing is therefore improper and irrelevant for purposes of these appeals. To establish standing for these appeals, Appellants must demonstrate that Mr. Nicholson has suffered or will suffer specific harm arising from the Building Permit Approvals. Rather than assert any direct harm from the buildings permits, however, Appellants attempt to rely upon claims of alleged procedural injuries, collateral attacks on prior approvals, and Mr. Nicholson's standing in prior appeals. Appellants have failed to meet their burden to establish Mr. Nicholson's standing. B. ASE Lacks Standing 1. ASEfails to demonstrate that it has a member with standing. To establish associational standing, the association bears the burden of establishing that it has a member with standing to bring the appeals. Mr. Nicholson is the only named member of ASE. As discussed above, because Mr. Nicholson has not established an injury in fact arising out of the Building Permit Approvals, Mr. Nicholson lacks standing to bring these appeals. Without a member with standing, ASE lacks associational standing to bring these appeals. 2. ASE's December Bylaws reflected insufficient control by its members. In addition to ASE's inability to show that it has a member with standing, ASE lacked associational standing to appeal the Building Permit Approval of Buildings 101 and 102. As detailed in prior briefing by Applicant, the Examiner has dismissed all of ASE's prior appeals for lack of standing. At the time of ASE's December appeal of the building permit approval for Buildings 101 and 102, ASE's Bylaws and other corporate documents still reflected an Applicant's Reply - Page 6 of 8 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Gailand Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745: fax 206.623.7789 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 organization in which its member, Mr. Nicholson, had no meaningful control over the association. As a mere bystander to the appeals, Mr. Nicholson was not being represented by ASE, and ASE lacked associational standing. C. The Examiner's Jurisdiction is Limited At the pre -hearing conference, the Examiner requested briefing on the issue of whether the Examiner has jurisdiction to hear these appeals. Applicant acknowledges that the Renton Municipal Code specifically provides for appeals of building permit approvals, and that situations can therefore exist in which the Examiner has jurisdiction to hear appeals of building permit approvals. In this case, however, the appeals are not properly before the Examiner for several reasons. First, the Renton Municipal Code limits the Examiner's authority on appeal: "the Examiner shall have all of the powers of the office from whom the appeal is taken insofar as the decision on the particular issue is concerned." RMC 4-8-11O(E)(1)(c). In this case, where the approval of the building permits was a ministerial decision by the Development Services Division, the Examiner's authority on review is narrowly limited to whether that ministerial decision was proper. Appellants' requests of the Examiner to apply extraneous code provisions and abstract criteria to the building permit review process are beyond the jurisdiction and authority of the Examiner. Second, to the extent that these appeals are in fact attempts by Appellants to revisit or collaterally attack prior approvals, such claims are beyond the jurisdiction of the Examiner. Finally, these appeals are not properly before the Examiner if the appellants lack standing to bring the appeals. As discussed above, ASE and Mr. Nicholson lack standing to appeal the Building Permit Approvals. While it is possible in certain cases for the Examiner to have jurisdiction over building permit appeals, this is not such a case. Because the Examiner lacks authority to grant Appellants' requested relief, and because Appellants lack standing to bring these appeals, the appeals must be dismissed. Applicant's Reply - Page 7 of 8 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 second Ave Seattle WA 98101-2925 206.623,1745; fax 206,623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 PIMA 23 24 25 26 27 28 IV. CONCLUSION The parties to an appeal must have standing as to the particular claims asserted in their appeal. Mr. Nicholson presents no evidence of particularized harm arising out of the Building Permit Approvals, attempting to rely instead upon alleged procedural injuries and collateral attacks of prior approvals. Because Mr. Nicholson has not established that he has standing to bring these appeals, his appeals must be dismissed. ASE has the burden to demonstrate its associational standing. Because ASE has not demonstrated that it has a member with standing, ASE has failed its burden. Furthermore, ASE's corporate documents at the time of its appeal of the approvals for Buildings 101 and 102 demonstrated no material change in the status of its members since the Examiner's previous dismissals of ASE's appeals. ASE has failed to carry its burden to demonstrate associational standing, and its appeal must be dismissed. Finally, to the extent Appellants raise issues beyond the scope of the building permit review process, these exceed the scope of the Examiner's authority and the Examiner lacks jurisdiction to hear these appeals. For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City of Renton's Building Permit Approvals should be DTs1v11SSED. DATED this do - - day of May, 2007. #353374 t8449-004 7kny01!Aoc 5121/07 Applicant's Reply - Page 8 of 8 HILLIS CLARK MARTIN & PETERSON, P.S. "-7-0e By - Jerome L. Hillys, WSBA #1704 T. Ryan Durkan, WSBA 411805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Sealtle WA 98101-2925 206.623.1745; fax 206.623.7789 1 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeal of No.B060540 Alliance for South End (ASE) and B060688 Brad Nicholson re: CERTIFICATE OF SERVICE The Director's Administrative Site Plan Approval. 1, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson, P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. 1 hereby certify that on the 22nd day of May 2007,1 caused to be delivered via legal messenger a true and correct copy of Applicant's Reply to ASE and Nicholson Response to Motions to Dismiss ASE and Nicholson Appeals From The Landing Permit Approvals, and this Certifcate of Service to the following: Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 Lawrence J. Warren Zanetta Fontes Warren Barber & Fontes, P.S. 100 South Second Street Renton, WA 98057 Certificate of Service - Page 1 of 2 Office of the Clerk City of Renton 1055 South Grady Way Renton, WA 98055 Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave COPN Seattle WA 98101-2925 206.623.1745;fax 206.623.7789 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 Ross Radley Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East, Suite 250 Seattle, WA 98102 DATED this Zzday of May, 2007. HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. Pan Legal Assistant to T. Ryan Durkan 9345401 18449-004 70h0ll.dac 5122107 HILLIS CLARK MARTIN & Certificate of Service - Page 2 of 2 PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 STATE OF WASHINGTON, COUNTY OF KING } AFFIDAVIT OF PUBLICATION PUBLIC NOTICE Jody L. Barton, being first duly sworn on oath that she is the Legal Advertising Representative of the Renton Reporter a bi-weekly newspaper, which newspaper is a legal newspaper of general circulation and is now and has been for more than six months prior to the date of publication hereinafter referred to, published in the English language continuously as a bi-weekly newspaper in King County, Washington. The Renton Reporter has been approved as a Legal Newspaper by order of the Superior Court of the State of Washington for King County. The notice in the exact form annexed was published in regular issues of the Renton Reporter (and not in supplement form) which was regularly distributed to its subscribers during the below stated period. The annexed notice, a: Public Notice was published on May 12, 2007. The full amount of the fee charged for said foregoing publication is the sum of $ 130.20. d arton Le Advertising Representative, Renton Reporter scribed and sworn to me this 1 St' day of May, 2007 B D Cantelon Notary Public for the State of Washington, Residing in Kent, P. O. Number: j a'!� .o op W Washingtov1 t t 1 t %flip NOTICI OF APPEA1, HEARING RFNTON HEARING FKAM1NER RENTON, WAS i-iINGTO N A Public Hearing will be held by the Renton Hearing Examiner in the Council Chambers on the seventh floor of Renton City Hall, 1055 South Grady Wa y, Renton, Washington, on May 24, 2007 at 9:00 AM to consider the following petitions: The Landing Building Permits B060688 & B060591 Appeals LUAO 7 -031, AAD & LUA07-037, :k,,%D Locatinn: 1002 Park Avenue N. Description: Appeal of Building Permit B060688, Building 200 of The Landing, which is a 18,100 square foot one-story building located south of N loth Street between. Logan Avenue N and Park Avenue N. The upjwi it caiik�rids th,jt the building permit �t-r�s i� ued errnncausly a it is based on a flawed Master Site Plan approvat and subsequent Site Plan approval. Appeal of Building; Permit B000540 for Buildiu.= 101 and 1.02 at the Landing. Building 101 is a 20,400 square foot one-story building and Building 102 is a 21,000 square foot one-atory building. The buildings are attached and are located northea.t of the intersection of Park Avenue N and N Sth Street. The appellant contends that the building permit was issued erroneously as the approval was based on a flawed Master Site Plan approval and suhaegtrent Site Plan approval, If the hearing on the pending action cannot be completed on the date set in the public notice, the meeting or hearing may be continued to a date certain and no further notice is wired. All interested persons are invited to be present at the Public Hearing. The file may be reviewed in the office of the Hearing Examiner on the seventh floor of Renton City Hall. His number is: 425.430-6515. Published in the Renton Reporter May 12, 2007- #863384 i 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 / ��J o 1 71 BEFORE THE HEARIN�TG EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of } Alliance for South End (ASE) and } B060540, B060688 Brad Nicholson re: ) APPELLANTS' RESPONSE TO The Building Permit Application Approvals ) APPLICANT'S AND CITY' S for Buildings 101, 102, and 200 ) MOTIONS TO DISMISS BUILDING PERMIT APPEALS 1. INTRODUCTION Appellants Brad Nicholson and Alliance for South End (ASE) ask the Hearing Examiner to deny the Applicant's and City's motions to dismiss Appellants' appeal of the Building Permit Approvals for Buildings 101, 102, and 200. II. STATEMENT OF FACTS Brad Nicholson is a lifelong citizen of Renton who owns property and lives near 11 The Landing project site, regularly commutes through the area, and plans to shop and utilize pedestrian amenities on the site after construction is completed.` Appellant ASE is a Washington non-profit corporation whose purpose is to "advance its members' interest in the environment, land use planning, and governmental fiscal integrity of the City of Renton,"' ASE's membership is comprised of Mr. Nicholson and several other Renton citizens who are similarly aggrieved by The Landing.' See Declaration of Brad Nicholson, attached hereto as Exhibit A, at ¶ 1. 2 See id. at ¶ 5; see also ASE's Articles of Amendment, attached (with Consent to Action of Directors in Lieu of Meeting) as Exhibit A.) to Nicholson Declaration. ' Nicholson Declaration at T 5. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT BuckO Gordon ll APPEALS - 1 2025 First Avenue, suite 500 Seattle, WA 98121-3140 Y-1U'P1ASE%SIT£ PLAN APPEALIPOSTHEAR]NG BRIEFS\REFLY TO POS IHEARING BRJF.F 041707 FNAL.DOC (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Nicholson has attempted to challenge City decisions involving the Landing site since 2003, and the Hearing Examiner has consistently recognized that he has standing to do so. In holding that Mr. Nicholson had standing to challenge the Site Plan for The Landing, the Examiner stated that [t]his office . , . has consistently held that individuals have standing to challenge certain City decisions in administrative and environmental appeals. This office actually found in Landing I, that PASS, the separate citizens' association, had standing to bring that action. This office also previously found that this very individual, Mr. Nicholson, had standing to challenge the adequacy of the Environmental Impact Statement for the Boeing Comprehensive Plan Amendment and Rezone actions. It would be inconsistent to now find he did not have standing when the actual development, the Site Plan in contention, was being reviewed. It seems clear that Nicholson has a strong belief that the approved Site Plan violates City policies and/or Code provisions. He argues that allowing it to go forward will harm him either due to being a badly designed project that does not meet code or one that may create severe traffic problems adversely affecting him or cause stormwater problems with water bodies he alleges he uses ... Nicholson should be permitted the opportunity to show those factual harms subject to the normal burdens of proof attached to an administrative appeal and the requirements that the decision below is entitled to substantial weight.' In 2003 and 2004, during his efforts to challenge earlier City actions affecting the site of The Landing Project as a pro se litigant, Mr. Nicholson found himself outgunned 4 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 5, attached as Exhibit F to Applicant's Motions to Dismiss. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT BuckO Gordon LLP APPEALS - 2 2025 First Avenue, Suite 500 Sean* WA 98121-3140 Y-MMASEISITE PLAN APPFAL'YOSTHEARM0 SRIEFSAEPLY TO POST DARING BRIEF 041707 FTNAL.DOC (206) 382-9540 2 4 61 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by the resources available to the City and other project proponents.' In 2006, Mr. Nicholson personally encouraged the formation of a nonprofit to represent citizens concerned about the Landing Project in particular and the integrity of the City's land use planning process in general, which resulted in the incorporation of ASE on May 19, 2006.6 ASE has followed the direction of its members since that date.' ASE's appeals of the Master Plan Approval and Planned Action determination for The Landing, filed in May and June of 2006, were dismissed by the Examiner for lack of assoeiational standing in a decision issued on September 5, 2006.11 In that decision, the Examiner found that "[ASE's] bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the members any right to control the appeal."' In response to the Examiner's concerns about the voting rights of members as provided in ASE's bylaws, ASE adopted a series of Amended Bylaws in successive attempts to provide the appropriate level of "control" by its members.1D On December 10, 2006, ASE's directors adopted Amended Bylaws that granted extensive voting rights to the members, including the election of directors, any increases or decreases in the number of directors, the removal of directors at any time with or without cause or notice, all amendments to ASE's Bylaws, all amendments to the corporation's Articles of Incorporation, and "any other matters that may properly be presented to the Members for a vote."" ' Nicholson Declaration at 16. 6 Id. ' Id. a See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for Alliance for Alliance for South End (ASE) and Progressive Alliance for a Sustainable Southend (PASS), September 5, 2006, attached as Exhibit C to Applicant's Motions to Dismiss, 91d. at p. 6, 1° Nicholson Declaration at � 7. ' 1 See Nicholson Declaration at T 8; see also Amended Bylaws of Alliance for South End, December 10, 2006, attached to Nicholson Declaration as Exhibit A.2 APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT BuckO Gordon LLP APPEALS-3 2025 First Avenue, Sulte 50e Seattle, WA 98121-3140 Y',WP1ASF\S1TE PLAN APPEALIPOSTHEARTNG BRIEF51REPLY TO POST HEARING BRIEF 041707 FINAL-DOC {206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Z 20 21 22 23 24 25 ASE and Nicholson filed their appeals of the Building Permit Approvals for Buildings 101 and 102 on December 11, 2006, Pursuant to ASE's corporate purpose, adopted policy, and Bylaws provisions regarding member consultation, ASE's members were consulted before the appeals were filed and no objections were raised.12 On February 7, 2007, ASE's members exercised their right to approve amendments to ASE's Bylaws by granting additional rights to ASE's members in the Bylaws, including the right to determine the qualification of prospective members and to elect new members; the right to vote on any contemplated termination of membership; and the right to remove directors "with or without cause." " ASE's appeal of the Site Plan for the Landing was dismissed by the Examiner for lack of standing in a decision issued on February 22, 2007.1° In that decision, the Examiner found that "ASE is still not governed by its members."15 However, as noted above, the Examiner found that Brad Nicholson did have standing to file the appeal because he alleged harms resulting from faulty project design, noncompliance with Code requirements, and traffic and stormwater impacts.16 On March 11, 2007, a special meeting of the members and directors of ASE was held at a member's house in Renton.j7 At that meeting, the members were briefed on the status of ASE's appeals and standing issues in the appeals, discussed members' goals regarding The Landing project, and ratified all past actions of the members and directors, 12 See Nicholson Declaration at 1 9; see also Minutes of Special Meeting of Board of Directors of Alliance for South End, December 10, 2006, attached to Nicholson Declaration as Exhibit A.3 "See Nicholson Declaration at 1 10; see also Amended Bylaws of Alliance for South End, February 7, 2007, 2006, attached to Nicholson Declaration as Exhibit AA 14 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 4, attached as Exhibit F to Applicant's Motions to Dismiss. �5 Id. at p. 4. 16 Id. at p. 5, 17 See Nicholson Declaration at T 11; see also Minutes of Special Meeting of the Members and Board of Directors of Alliance for South End, March 11 2006, attached to Nicholson Declaration as Exhibit A,5 APPELLANTS' RESPONSE TO APPLICANT'S AND p CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucko Gordon LLP APPEALS-4 2025 First Avenue, suite 500 Seattle, WA 98121-3140 Y IWPNASEI5ITE PLAN APPEAL YOSTI[EARING BRIEFS',kEPLY ,M POST HEARING BRIEF 041707 FfNAL.DOC (206) 382-9540 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 including "all actions concerning appeals; litigation and settlement of claims."18 The members elected three members as directors of the corporation and elected those members to the offices of President, First Vice President, and Second Vice President.19 The members also "reiterated the importance of protecting the identities of ASE's Members due to a pattern of intimidation and marginalization by the City."" As documented in minutes from the March 11 meeting, the members considered a third set of Amended Bylaws at that meeting: "It was suggested that the bylaws be amended so that it is explicitly provided that the Members control the corporation. The Members and directors reviewed a set of bylaws changes .. , [and] approved making the changes."" These Amended Bylaws provide that "[t]he Members shall control the direction of the corporation to the extent permitted by law"; that "[t]he directors shall carry out the direction of the members as expressed in such consultations [regarding major decisions concerning appeals, litigation, or settlement of claims] to the extent permitted by law"; and that "[i]t is the intention of the corporation and its Members that its actions be directed, to the extent permitted by law, by the Members' actions at membership meetings and by the Members' input in all consultations with directors."22 ASE and Nicholson filed their appeals of the Building Permit Approval for Building 200 on March 13, 2007. ASE's appeal was filed pursuant to specific instructions from its members: [The members] instructed the directors and their attorneys to vigorously pursue all appeal and to continue to appeal further approvals that follow what is considered to be an 's Id. 191d. 2a Id. 21 Id. 22 See Nicholson Declaration at 1 12; see also Amended Bylaws of Alliance for South End, March 11 2006, attached to Nicholson Declaration as Exhibit A.6, APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS-5 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y'1WP1ASEISITE PLAN APPEALPaSTHEARING BRSCFS',REPLY TO PUs,r HEARING BRIEF 041707 FINAL DDC (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 illegal course of action. Specifically, the Members instructed the directors and attorneys to file an appeal of the Building Permit Approval for the structure designated as "Building 200." 23 The Amended Bylaws adopted by ASE's members on March 11, 2007, are still in effect today. " The three members who were elected as ASE's directors and officers on March 1 I remain in those positions.25 III. ARGUMENT A. Brad Nicholson Has Individual Standing. 1. RMC Requirements for Standing in Appeals of Staff -Approved Building Permits. Building permits approved by staff are appealable to the Hearing Examiner as non - environmental administrative decisions. See RMC 4-8-070,H(1)(a) (Hearing Examiner Authority),26 Under RMC 4-8-100,E(3)(b), such administrative decisions may be appealed by any person "aggrieved": Standing for Appeals of Administrative Determinations other than Environmental: Appeals from administrative determinations of the City's land use regulation codes and from environmental determinations required by the Renton environmental review regulations may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. 13 See Minutes of special Meeting of the Members and Board of Directors ofAlhance for South End, March 11 2006, attached to Nicholson Declaration as Exhibit A.5 24 Nicholson Declaration at 113, 25 1d. 26 See also RMC 4-8-080.G (Land Use Permit Procedures — Type I); RMC 4-8-080.N (Type I — Land Use Permits); RMC 4-8-11 OE(l)(a) (Appeals to Lxaminer of Administrative Decisions and Environmental Determinations). APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS-6 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y.%WP1ASBSITE PLAN APPEALIPOSTHEARING BRIEFS.REPLY TU POST HEARING BRIEF 641707 FINALVOC (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1] 21 22 23 24 25 RMC 4-11-010 defines "aggrieved party" as follows: AGGRIEVED PARTY: A person seeking to protect what must be "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question" and must allege an "injury in fact," i.e., that he or she will be specifically and perceptibly harmed by the proposed action. Thus, Renton has adopted a two-part test for standing in appeals of administratively -approved building permits: (1) the appellant must seek to protect interests that are "arguably within the zone of interests to be protected or regulated" by the laws at issue; and (2) the appellant must "allege an `injury in fact,' i.e., that he or she will be specifically and perceptibly harmed by the proposed action."27 It bears emphasis that the "zone of interests" test is qualified in the RMC with the word "arguably." See RMC 4-11-010. Applying similar language in the Land Use Petition Act, RCW 36.70C, courts have held that the zone of interests test "is not meant to be especially demanding." See, e.g., Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002). Similarly, the RMC requires appellants to "allege" injury in fact. See RMC 4-11- 010. It does not, as the Applicant suggests, require appellants to "demonstrate an injury in fact."" As the Examiner's decision affirming Mr. Nicholson's standing to challenge the Site Plan recognized, the appellant ultimately does have to present facts to demonstrate the alleged errors, but where he has made the allegations, he should be given the 27 See RMC 4-11-010 (emphasis added); RMC 4-8- 1 00.E(3)(b) (emphasis added). '-$ See Applicant's Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, p. 5 and Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 5 (emphasis added). APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon it APPEALS-7 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y.1WP1ASDSITE PLAN APPEALIPDSTHEARING RRIEFS%REPLY TO 110S I HEARM0 RRIEF 041707 FINAL.DOC (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity to do so. 29 The forum to determine whether appellants can demonstrate or prove their allegations is in the hearing on the merits, not in a standing motion. Z Nicholson is Aggrieved by the Building Permit Approvals. The Examiner has previously found that Brad Nicholson has standing to challenge both the Site Plan for The Landing and the adequacy of the Environmental Impact Statement for the Boeing Comprehensive Plan Amendment and Rezone action. In denying the Applicant's and City's motions to dismiss Nicholson's Site Plan Appeal, the Examiner observed that "[i]t would be inconsistent to now find he did not have standing when the actual development, the Site Plan in contention, was being reviewed."30 This is doubly true of City approvals for building permits, which authorize physical implementation of the Site Plan through the construction of buildings. Just as Nicholson has standing to appeal the Site Plan due to harms from nonconformities and impacts associated with The Landing, he necessarily has standing to appeal building permit decisions that improperly attempt to implement an illegal Site Plan while it is still on appeal. (a) Zone of interests. Nicholson and other ASE members are seeking to protect interests that are squarely within the zone of interests to be protected and regulated by the laws at issue in this appeal: the City's Site Development Plan Review (SDPR) regulations; the International Building Code (IBC -, the City's Permit Classification regulations; the State 29 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, attached as Exhibit F to Applicant's Motions to Dismiss, p. 5. 311 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 5. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon l-11-15 APPEALS - 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y'%WP1ASE'S[TE PLAN APPEALTOSTHEARING BRIEFTREPLY TO POST HEARING BRIEF 041707 FINALDOC (206) 352-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Environmental Policy Act (SEPA); and Renton's SEPA ordinance. The City's review of building permit applications is governed by each of these laws. Collectively, these laws encompass all of the claims alleged by Nicholson and other ASE members in these appeals. SDPR regulations. Several provisions of the SDPR regulations (RMC 4-9-200) link building permit review to the Site Plan review process. RMC 4-9-200.B(2) provides that "[n]o building permit shall be issued for any use requiring Site Plan Review pursuant to this Section until the Reviewing Official has approved, or approved with conditions, the Site Plan application. All building permits issued shall be in compliance with the approved Site Plan." Similarly, RMC 4-9-200.K provides that "[b]uilding permits shall not be issued until the appeal period for an approved site development plan has expired." RMC 4-9-200.G(5) provides that "City departments and other jurisdictions or agencies with an interest in the application" -,,vho do not comment on the Site Plan "reserve the right to make later comments of a code compliance nature during building permit review. This includes such requirements as exact dimensions, specifications or any other requirement specifically detailed in the City Code." These RMC provisions demonstrate an intent by City Council to subject building permits to continuing review for compliance with the Site Plan itself as well as particular Code requirements governing site design. Nicholson's and ASE's claims regarding illegal setbacks, surface parking driveways on pedestrian -oriented streets, and street frontage occupied by off-street parking and vehicular access involve precisely the type of "exact APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordan ALP APPEALS-9 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y-'AA?IASE'SITE PLAN APPEALTOSTHEARiNG BRIEFS REPLY l'0 POST' HEARfNG BRIEF 041707 FINAL.DOC (206) 382-9540 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dimensions" and "specifications" that RMC 4-9-200.G(5) is intended to regulate throughout the building permit review process. International Building Code. Similarly, a building permit is void if issued in violation of any provision of the RMC, even if those provisions were also addressed at an earlier stage of project review. Section 105.4 of the IBC, adopted by reference in RMC 4- 5-050, provides as follows: The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. The purpose of the IBC is to "establish the minimum requirements to safeguard the public health, safety and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency episodes."31 Read together, these provisions of the IBC reveal a broad zone of interest in the enforcement of "aM of the provisions of this code or of any other ordinance of the jurisdiction" during building permit review for the benefit of the general public, even if those provisions or ordinances should have been satisfied during an earlier stage of review.32 By filing these appeals of the Building Permit Approvals, Nicholson and other members of ASE are seeking to vindicate their interests in the enforcement of maximum " IBC, Section 101.3. 32 See IBC, Section 105.4 (emphasis added). APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Buck► Gordon LLP APPEALS - 10 2325 First Avenue, Suite 500 Seattle, WA 98121-3140 Y.1WP%AS0SITE PLAN AAPEALIPOSTHEARING BRIEFS',REPLS' TO POST IMARING BRIEF M707 FINAL.DOC (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 setbacks, pedestrian -friendly design regulations, and adequate Site Plan and environmental review for the benefit of their community." SEPA and Renton's SEPA ordinance. Nicholson and ASE are seeking to protect interests that are unquestionably regulated and protected by SEPA. The Applicant argues that "there is no allegation or showing that the stormwater or traffic impacts would be altered with or without the Building Permit Approval[s].�34 To the contrary, proper processing of the Building Permit Approvals would have resulted in a public hearing and an opportunity to address unanalyzed impacts. Additionally, each structure that is built using approvals piggy -backed on the City's flawed and outdated environmental analysis will contribute incrementally to unmitigated stormwater and traffic impacts." Moreover, RMC 4-9-070, Renton's SEPA ordinance, declares that "it is the continuing responsibility of the City to use all practicable means, consistent with other essential considerations of State and City policies, to improve and coordinate plans, functions, programs and resources" with goals of assuring "safe, healthful, productive and aesthetically and culturally leasing surroundings" and attaining "the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other 33 See Nicholson Declaration at ¶ 4. 34 See Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, p. lo; Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 10. ss To the extent that Buildings 100, 101 and 200 can be seen as effectively committing the City to development of the complete project (as currently designed), the Applicant and City should not be able to evade scrutiny of their inadequate review of the whole project by arguing that one building won't have an impact. The Applicant's and City's arguments suggest an improper piecemeal approach to SEPA review. See Batchelder v, City of Seattle, 77 Wn.App. 154, 160, 890 P.2d 25, review denied, 127 Wn,2d 1022 (1995) (finding that "piecemealing" occurs where the local authority "allow[s] one portion of [a] project to proceed while the other portion of the project awaits approval"); see also Merkel v. Port of Brownsville, 8 Wn. App. 844, 509 P-2d 390 (1973). APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS — 11 2025 F«st Avenue, suite 500 Seattle, WA 98121-3140 Y.1WP1ANE%SITE PLAN APPEALIPOSTHEARING BRIBFSREIILY'1'0 1'OST HEARING BRIEF 041707 FINAL.DOC (206) 382-9540 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 undesirable and unintended consequences," among other goals. RMC 4-9-070.A (emphasis added). Nicholson's and ASE's allegations regarding The Landing's automobile -centric design fall within the zone of interest of assuring safe and aesthetically pleasing surroundings. If the Applicant had designed Buildings 100, 101 and 200 in accordance with the pedestrian -oriented design regulations adopted by the City, there would be more foot traffic and less car traffic through and around the site. 36 The Landing would be a safer and more pleasant development for citizens like Brad Nicholson,37 Permit Classification regulations. Nicholson's and ASE's claims of procedural injury fall within the zone of interests for the City's Permit Classification regulations (RMC 4-8-080), The purpose of the Permit Classification regulations is to "outline the procedure and time requirements for the various development applications reviewed by the City." RMC 4-8-080.A. Nicholson and ASE have alleged that the City's processing of building permits for The Landing violate RMC 4-5-080 because the Examiner, not the Director, was the appropriate official to review and take action on the permits. The City's improper processing not only denied Nicholson and other ASE members the opportunity to have the building permits reviewed by the Examiner, but also deprived them of the opportunity for a public hearing." As an active citizen of Renton, Nicholson is seeking to protect his interest in this site as well as his interest in the integrity of the City's permit review process." 36 See Nicholson Declaration at 14, 37 id. 3s Nicholson Declaration at ¶ 3. 391d. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS - 12 2025 First Avenue, Suite 500 Seattle, WA 95121-3140 Y.1WMAMSITE PLAN APPSALIPO5THEARING BRIEFSdtEPLY TO POST HEARING BRIEF 041707 FWALDOC (206) 382-9540 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 (b) Iniury in fact. Washington courts routinely grant standing to appellants alleging specific harms resulting from physical proximity to a development site. Suquamish Indian Tribe v. Kitsap County, 92 Wn.App. 816, 829-30, 965 P.2d 636 (1998). The courts have granted standing in building permit appeals alleging such harms. See, e.g., Asche v. Bloomquist, 132 Wn.App. 784, 133 P.3d 475 (2006) (finding that appellants who "argued that the building permit was erroneous because the County misapplied the zoning ordinance and miscalculated the maximum allowable height of the structure" had standing to appeal the permit); see also Biermann v. City of'Spokane, 90 Wn.App. 816, 960 P.2d 434 (1998). Even in other states with more stringent standing requirements, courts have recognized that landowners living in relative proximity to a large development have standing to challenge the development by filing building permit appeals. See, e,g, Summit Mall Company, LLC v. Lemond, 355 Ark. 190, 132 S.W.3d 725 (2003) (finding that "the landowners had standing to file suit due to the fact that this case deals with the City's largest single commercial development which has the potential to affect the entire ... area") Like the appellants in Suquamish Indian Tribe, Asche, Biermann, and Summit Mall Company, Brad Nicholson and other ASE members have alleged multiple injuries arising from proximity to the structures authorized to be built by the Building Permit Approvals. In particular, they will be injured by departures from development standards (such as maximum setbacks) and design regulations (such as regulations prohibiting surface APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Burke Gordan LLP APPEALS - 13 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y:lWP1ASE�SITE PLAN APPEALIPOSTI-IEARING BRIEFSIREPLY TO POST ILLARING SRMF 041707 FTNAL.DOC (206) 382-9540 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 parking driveways on pedestrian -oriented streets) that the City has approved for Buildings 100, 101 and 200.40 As discussed above, they are also injured by the traffic and stormwater impacts associated with each of these buildings.41 The Hearing Examiner has already held that these allegations of harm give Bran Nicholson standing (and thus an opportunity to prove the allegations in a hearing on the merits). Additionally, Nicholson and other ASE members are further injured by the City's decision to issue building permits that implement the challenged Site Plan while that appeal is still pending.42 These allegations of specific and perceptible harm resulting from the construction of Buildings 100, 101 and 200 are more than adequate to confer standing. Courts have granted standing even when alleged impacts are "possible, not necessary, impacts" of the challenged decision." See Leavitt v- Jefferson County, 74 Wn.App. 668, 875 P.2d 681 (1994) (granting standing to appellant who alleged possible impacts from a development code that allowed residential densities of up to five dwelling units per acre on 500 acres located uphill from her property). Here, there can be no doubt that the construction of Buildings I00, 101 and 200, as currently designed, will result in a less pedestrian -friendly development that what is required by the Code.43 (The Applicant and City have abandoned any arguments that the Site Plan actually complies with the Code, relying instead on the Director's purported authority to waive Code requirements through various "modification" mechanisms.) The construction activities associated with these buildings 4Q Nicholson Declaration at ¶ 4 41 Id. 42 id. 43 See id. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Backe Gordon LLP APPEALS - 14 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y:IWY ASEISITE PLAN APPEALTOSTHEARING BRIEFSAf:FLY TO 1'OS7 HEARING BRIEF 041707 FINAL.DOC (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have already resulted in commuting delays for Nicholson due to his inability to use a route that takes him along Park Avenue, which runs through The Landing site.44 Once the buildings are occupied and open for business, they will immediately generate increased traffic along each of the roads that Nicholson uses to commute and travel generally in his community. Nicholson will continue to suffer harm from unanalyzed traffic and stormwater impacts for years to come.45 The Applicant misconstrues Appellants' arguments about traffic and stormwater impacts from the Building Permit Approvals, The Applicant argues that "there is no allegation or showing that stormwater and traffic impacts would be altered with or without the Building Permit Approval[s]" and that "Appellants do not allege that there should be no building at the site of [Buildings 100, 101 and 200]."" Nicholson and ASE have consistently argued that the City's analysis of traffic and stormwater impacts was inadequate. As discussed above, these impacts may be considered not only during the City's initial SEPA review but also at the building permit stage, when the Master Plan and Site Plan are implemented on the ground. Indeed, the Building Permit Approvals represent the City's last chance to address traffic and stormwater impacts associated with Buildings 100, 101 and 200. Additionally, Appellants have alleged that automobile -centric design will result in additional traffic impacts. In short, while it is true that Appellants have not alleged that there should be no building at the site of Buildings 100, 101 and 200, 44 id, 45 id, 46 See Applicant's Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, pp. 9-10; Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 10. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS - 15 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y. WKASEISITE PLAN APPEALPOSTHEARING BRIEFSIREPLY IQ POST HEARING BRIEF OWN FINAL.DOC (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 Appellants have alleged that the City should have adequate analyzed impacts associated with those buildings and that Code violations will exacerbate traffic problems. These allegations are sufficient to grant standing. S. ASE Has Associational Standing. 1. Requirements for Associational Standing. Because the RMC does not directly address associational standing, Washington case law provides the relevant rules. Associational standing rules are based on practical' considerations, such as whether a citizen alleging injury from government actions is "unable to afford the costs of challenging the action himself' and whether "[a] class suit may be too cumbersome." Save a valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 867, 576 P.2d 401 (1979). In such circumstances, "[a]n association or non- profit corporation of persons with a common interest can then be the simplest vehicle for undertaking the task." Id. Under Washington case law, no particular structure is required of an organization before it can have associational standing, as long as harm to a member is alleged. In Suquamish Indian Tribe, the Court of Appeals summarily rejected the argument that a citizens' group lacked standing "because it lacks the requisite structure": The Screens raise a preliminary issue. They contend that NKCC does not have standing as an organization because it lacks the requisite structure. But the cases they cite to supnort their contention that a particular structure is required do not support their argument. Rather, they hold that an organization has standing only when at least one of its members has standing as an individual. Thus, the inquiry here is whether the Screens have shown that there is no APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLP APPEALS - l 6 2025 First Avenue, Suite SOO Seattle, WA 98121-3140 YAWKASEISITE PLAN APPEALIPDMEEARING BRIEFSAEPLY'ro Pos,i I{EARING BRIEF 041707 FINAL.DOC (205) 382-9540 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 genuine dispute regarding material facts as to whether an individual NKCC member has standin . 92 Wn.App. at 830 (emphasis added). The Washington Supreme Court disfavors hypertechnical applications of associational standing rules. See International Ass'n of Firefighters, Local 1789 v. Spokane, 146 Wn.2d 207, 216, 45 P.3d 186 (2002) ("[W]e see little sense in an ironclad rule that has the effect of denying relief to members of an association based upon an overly technical application of the standing rules"), The Supreme Court has also noted with approval that federal courts do not concern themselves with the form of an organization: It is interesting to note that federal cases do not distinguish between non-profit corporations and unincorporated associations in determining the standing question. See Concerned About Trident v. Schlesinger, 400 F.Supp. 454 (D.D.C.1975). This lack of concern over the precise form of organization points to the courts' central concern that a specific and perceptible injury to a member of the organization be alleged, SAVE, 89 Wn.2d at 867 {emphasis added). Accordingly, the courts have consistently held that a citizens' group or other organization has standing to challenge Iand use decisions "as long as one member has standing to do so." East Gig Harbor Imp. Assn v. Pierce County, 106 Wn.2d 707, 710, 724 P.2d 1009 (1986) (emphasis added), citing SAVE, 89 Wn.2d at 867; see also Suquamish Indian Tribe, 92 Wn.App. 816, 830, 965 P.2d 636 (citing East Gig Harbor Imp. Ass'n and SAVE for proposition that "an organization has standing only when at least one of its members has standing as an individual") 11 APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Buck► Gordon ALP APPEALS - 17 2025 First Avenue, suite 500 Seattle, WA 98121-3140 Y:1WP1AS0SITF PLAN APPEALIPOSTHEARING BRIEFS',REPLY TO POST f IEAR..[NG BRIEF 041707 FINAL.DOC (206) 382-9540 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 Z. ASE's members have standing to sue in their own right. As discussed above, Brad Nicholson has standing to bring these appeals. ASE has other members who are Renton residents, are similarly situated to Nicholson, and are similarly aggrieved by the Director's decisions," These other members have standing for the same reasons that Nicholson has standing, Washington law requires only that "one member" of an organization have standing in order to confer associational standing on the organization. East Gig Harbor Imp. Assn, 106 Wn.2d at 710. Because Brad Nicholson and other ASE members have standing to sue in their own right, ASE has associational standing to sue on their behalf. Appellants continue to object to the notion that associational standing requires that a particular measure of "control" by members must be provided in an organization's bylaws. This proposition finds no support in Washington law and has been rejected by the courts. See Suquamish Indian Tribe, 92 Wn.App. at 830; SAVE, 89 Wn.2d at 867. The Applicant's and City's arguments suggest that, in order to establish associational standing, all members must have direct control over the daily activities of the corporation. Such an interpretation of standing rules would defeat the purpose of having a membership organization that can represent the interests of its members without requiring them to be involved in the governance of the organization. It would impose an unnecessary burden on members who would prefer to stay out of governance roles. For larger organizations like the Sierra Club, it would be totally unworkable. The Applicant's and City's continued 47 See Nicholson Declaration at ¶ 5. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT BuckCi Gordon LAP APPEALS - 1$ 2325 First Avenue, Suite 500 Seattle, WA 98i21-3140 Y,NWP1A5E151TE PLAN APPEALIPOSTHFARING BRIEFSIREPLY TO PosT HEARING BRIEF 041707 FINAL.DOC (206) 362-9540 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 nitpicking over the bylaws and seemingly endless litigation over exactly what bylaws are necessary for associational standing illustrates the problem with their approach, and why the courts have rejected it. Appellants ask the Examiner to now reject this approach and follow settled Washington case law holding that, regardless of its structure, an organization has standing if at least one of its members does. See Suquamish Indian Tribe, 92 Wn.App. at 830 (rejecting argument about structure and finding that "the inquiry here is ... whether an individual NKCC member has standing"); see also East Gig Harbor Imp, Assn, 106 Wn.2d at 710. Nevertheless, ASE has attempted to address the Examiner's concerns about the corporation by adopting Amended Bylaws that provide for control by the members. These I efforts illustrate that the Examiner's concerns about a rogue "shell" organization have not materialized, Instead, the record demonstrates that ASE has consistently represented the interests of its members. As discussed above, ASE's purpose is to "advance its members' interest in the environment, land use planning, and governmental fiscal integrity of the City of Renton."" ASE has faithfully adhered to this purpose since its incorporation in 2006 by challenging City actions after consultation with members. ASE's members were consulted before either of the instant appeals were filed and no objections were raised." Moreover, ASE's members have now ratified all past actions of the corporation, including "all actions concerning appeals, litigation and settlement of claims." 54 This action by the 4e See ASE's Articles of Amendment, attached (with Consent to Action of Directors in Lieu of Meeting) as Exhibit A. i to Nicholson Declaration. 49 See Nicholson Declaration at IT 9, 11. 54 See Nicholson Declaration at ¶ 11. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucke Gordon LLR APPEALS - 19 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y:1WPIASFISITE PLAN APPEALIPOSTHEARING BRIEFS'.REPLY TO POST HEARING BRIEF 041707 FINAL DOC �206) 382-9540 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 members confirms that ASE has always and continues to be directed by the stated interests of its members. The record also demonstrates that ASE's members absolutely control the corporation and this litigation, although Appellants believe this inquiry is inappropriate. ASE's membership has not dissolved, as the Examiner has speculated might happen. To the contrary, all but one of ASE's members are now directors and officers of the corporation. 51 Members have the right to vote on the election of directors, on any increases or decreases in the number of directors, on the removal of directors at any time with or without cause or notice, on all amendments to ASE's Bylaws, all amendments to the corporation's Articles of Incorporation, and on "any other matters that may properly be presented to the Members for a vote."" Members also have the right to determine the qualification of prospective members and to elect new members and the right to vote on any contemplated termination of membership; membership in the corporation may be terminated only by an affirmative vote of the members," ASE's Amended Bylaws expressly provide that "[t]he Members shall control the direction of the corporation to the extent permitted by law"; that "[t]he directors shall carry out the direction of the members as expressed in such consultations [regarding major decisions concerning appeals, litigation, or settlement of claims] to the extent permitted by law"; and that "[i]t is the intention of the corporation and its Members 51 See Nicholson Declaration at ¶ 11. 52 See Nicholson Declaration at 8. s3 See Nicholson Declaration at ¶ 10, APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS - 20 Y 1WP%ASEISITE PLAN APPEALIPOST"HEARING BRIEFS'.REPLY TO POST HEARING BRIEF 041107 FINALDQC BuCko GOrdon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 362-9540 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 that its actions be directed, to the extent permitted by law, by the Members' actions at membership meetings and by the Members' input in all consultations with directors."" The chronology of ASE's bylaws amendments demonstrates not only a corporation that serves its members' interests and is controlled by its members, but also a good -faith effort by ASE to address the Examiner's concerns. For these reasons, ASE has standing to bring these appeals. The Applicant's and City's motions should be denied. C. The Building Permit Appeals Are Not Collateral Attacks. The Applicant argues that the appeals of the Building Permit Approvals are impermissible collateral attacks on prior approvals for The Landing such as the Site Plan and Master Plan.SS This argument is factually inaccurate and relies on a mischaracterization of case law regarding collateral attacks, including Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-411, 120 P.3d 56 (2005). The Applicant incorrectly asserts that "each of the purported injuries relates back I to prior approvals for The Landing, including the master plan and site plan approvals."" In addition to alleging injuries related to the Master Plan and Site Plan Approvals (which are implemented by the Building Permit Approvals), Appellants allege injuries arising directly from the Building Permit Approvals. See Section III.A.2, supra. In particular, 54 See Nicholson Declaration at ¶ 12. 55 See Applicant's Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, pp. 8-10; Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, pp. 9-10 (citing Habitat Watch v. Skagit County, 155 Wn,2d 397, 410-1 1, 120 P,3d 56 (2005)), 56 See Applicant's Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, p. 9; Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 9, APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT BUCkO Gordon «p APPEALS - 21 2025 First Avenue, Sui,e 500 Seattle, WA 98121-3140 Y.%WPIASEISITE PLAN APPEALIPOSTHEARING BRIEFS,REPLY TO POST HEARfNG BRIEF 041707 FINAL_DOC (206) 382-9540 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 Appellants allege injuries arising from the City's issuance of building permits for The Landing while the Site Plan appeal is still pending. Id. Moreover, Appellants' claims are not collateral attacks as described in Habitat Watch and cases cited therein. See Habitat Watch, 155 Wn.2d at 410 (citing Wenatchee! Sportsmen Assn v. Chelan County, 14I Wash.2d 169, 181, 4 P.3d 123 (2000)). These cases involve appeals that were filed after the LUPA appeal period for challenging the underlying decision had passed without appeal. See Habitat Watch, 155 Wn.2d at 410-11 (`Because appeal of the special use permit and its extensions are time barred under LUPA, Habitat Watch cannot collaterally attack them through its challenge to the grading permit"); Wenatchee Sportsmen, 141 Wn.2d at 181 ("WSA's failure to file a timely LUPA challenge to the rezone bars it from collaterally challenging the validity of the rezone in this action opposing the project application"). Here, the underlying decisions (the Site Plan and Master Plan Approvals) have been appealed by Appellants, and Appellants have also appealed the building permits that implement the underlying decisions. Habitat Watch and Wenatchee Sportsmen also did not involve the particular provisions of the SDPR regulations, the International Building Code, the Permit Classification regulations, SEPA, or Renton's SEPA ordinance at issue in these appeals. As discussed above, these provisions provide for redundant review of Code compliance and analysis of impacts that may have been missed during the City's review process for earlier approvals. See Section III.A.2(a) supra. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bu[ko Gordon LLP APPEALS - 22 2025 First Avenue, site 500 Seattle, WA 98121-3142 Y.\WPIASEISITE PLAN APPEALU'OSTHEARINC, RRIMF RTPLY TO POST HEARING BRIFF 04I707 FINAL_DOC (206) 382-9540 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 For these reasons, the Applicant's arguments about "collateral attacks" are without merit and should be rejected. D. Building Permit Approvals are Explicitly Appealable Under the RMC. The City argues that "the issuance of a building permit, following prior appeals, is a mere ministerial act and not subject to appeal."57 In support of this argument, the City cites a single case with a single, one -sentence reference to a "ministerial act" in the context of a disability payment by the Department of Labor and Industries. See Perry v. Department of Labor and Industries, 48 Wn.2d 205, 209-210, 292 P.2d 366 (1956) ("The payment of the `additional twenty per cent unspecified disability' was a mere ministerial act and the department had no right, on its own motion to reopen the claim in the absence of a showing of aggravation, diminution, or termination within the purview of RCW 51.32.160"). This case has no relevance in the context of an administrative land use appeal that is explicitly authorized by a particular section of the RMC. Under the RMC, the Building Permit Approvals are not ministerial acts; they are appealable to the Hearing Examiner as non -environmental administrative decisions. See RMC 4-8-070.H(l)(a) (Hearing Examiner Authority); RMC 4-8-080.G (Land Use Permit Procedures — Type 1); RMC 4-8-080,H (Type I — Land Use Permits); RMC 4-8- 1 10.E(l)(a) (Appeals to Examiner of Administrative Decisions and Environmental Determinations).` It defies logic to argue that a decision made appealable by the RMC 57 See City's Motion to Dismiss for Lack of Standing, p. 2. 58 The appeal procedure for building permits under the Renton Code depends on the permit type. The building permits for The Landing could arguably be classified as Type 1, Type II1, or Type V1. See RMC 4- 8-080.G. Appellants have argued that the City followed the wrong process by doing so rather than treating APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Buck(3 Gordon LAP APPEALS - 23 2025 First Avenue, Suite 500 Seattle, VVA 98121-3140 Y.1WP%ASE1SITE PLAN APPFAL1P05THEARING BRIEFS-.REPIN'fU POST HEARING BRIEF 041707 FINAL,DOC (206) 382-9546 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 should be dismissed based on a fleeting reference to a "ministerial act" in a 1946 case about disability payments. Even if the Building Permit Approvals are considered ministerial acts, they are still subject to appeal. Numerous cases hold that building permits are appealable under LUPA and the City cites no authority whatsoever suggesting that they are not appealable.59 Since LUPA requires exhaustion of administrative remedies and the RMC expressly makes building permits appealable, it makes no sense to argue that they cannot be appealed — regardless of how they might be categorized. The City's argument is without merit. IV. CONCLUSION For the reasons presented herein, Appellants respectfully request that the Examiner deny the Applicant's and City's motions to dismiss Appellants' appeals of the Building Permit Approvals. DATED this day of May, 2007. BUCK & By U" 1� W \-- Peter L. Buck, WSBA #05060 Attorneys for Brad Nicholson and Alliance for the South End them as Type VI permits, which are reviewed by the Hearing Examiner (with a public hearing) and appealable to the City Council. However, because the building permits were reviewed by staff, and not the Hearing Examiner, the City has treated them as Type I or Type III permits and they are appealable as such. 59 See, e.g., Asche, 132 Wn.App. 784. APPELLANTS' RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT Bucko Gordon Li_P APPEALS - 24 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Y,1WPIAMSITE PLAN APPPALTOSTHEARING SRIEFS':RF.PI_Y TO POST REAASNG BRIEF 041707 FINAL.DOC (206) 382-4540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and } B060540, B060688 Brad Nicholson re: ) DECLARATION OF BRAD The Building Permit Application Approvals } NICHOLSON for Buildings 101, 102, and 200 ) 1, Brad Nicholson, do hereby declare as follows: 1. I was born in Renton 47 years ago and have lived in Renton my whole life. 2. I currently reside in and own my home at 2811 Dayton Avenue Northeast in Renton, Washington, less than two miles from the site of The Landing project. I am employed by Boeing as a machinist and work at Boeing's facility located at 7755 East Marginal Way South. My route of travel between home and work often takes me along streets directly adjacent to and through The Landing site. I plan to shop and utilize pedestrian amenities on the site after construction is completed. 3. I am injured by the Building Permit Approvals for Buildings 100, 101 and 200 in a number of ways. I am harmed by the City's improper processing of the Approvals, including issuance of building permits that implement a challenged Site Plan while that appeal is still pending, failure to refer the Approvals to the Hearing Examiner for a public hearing and decision (on top of the City's failure to hold a public hearing before the Hearing Examiner regarding this or any other decision approving The Landing project). If the City had held a public hearing, I would have voiced my concerns about the City's failure to mitigate impacts such as traffic and stormwater. As an active citizen of Renton, I am seeking to protect my interest in this site as well as my interest in the integrity of the City's permit review process. 1 am already suffering commuting delays due to my inability to use a route that takes me along Park Avenue, which runs through The Landing site. Once these buildings are occupied and open for business, they will immediately generate increased traffic along each of the roads that I use to commute and travel generally in my community. I will continue to suffer harm from unanalyzed traffic and stormwater impacts for years to come. IECLARATION OF BRAD NICHOLSON - 1 Buck Gordon LLP %WP1ASETUILDING PERMITSWICHOLSON DECLARA'I ION 050807.DOC Set First Avenue, Suite 500 Seaattle, WA 98121 {2W 352-9540 EXHIBIT A 2 3 4 5 6 7 8 9 10 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4. I am further injured by the City's failure to enforce development regulations and design guidelines intended to implement a pedestrian -friendly, urban village concept. In particular, I am injured by departures from development standards (such as maximum setbacks) and design regulations (such as regulations prohibiting surface parking driveways on pedestrian -oriented streets) that the City has approved for Buildings 100, 101 and 200. If these structures are built as currently designed, I will suffer harms including the inappropriate presence of a suburban -style development in an urban zone, decreased property values, damage to the appearance of the City, and failure to achieve the required employment base. If the Applicant had designed these buildings in accordance with the pedestrian -oriented design regulations adopted by the City (instead of designing a car -friendly, suburban -style strip mall), there would be more foot traffic and less car traffic through and around the site. The Landing would be a safer and more pleasant development for citizens like myself. By filing these appeals of the Building Permit Approvals, I am seeking to vindicate my interest in the enforcement of maximum, setbacks, pedestrian -friendly design regulations, and adequate site plan and environmental review for the benefit of my community. 5. ASE is a Washington non-profit corporation whose purpose is to "advance its members' interest in the environment, land use planning, and governmental fiscal integrity of the City of Renton." See ASE's Articles of Amendment, a true and accurate copy of which is attached hereto (with Consent to Action of Directors in Lieu of Meeting) as Exhibit A.I. ASE's membership is comprised of myself and several other Renton citizens who are similarly aggrieved by The Landing. ASE's other members are Renton residents, are similarly situated to myself. and are similarly aggrieved by the Director's decisions regarding The Landing. 6, In 2003 and 2004, during my efforts to challenge earlier City actions affecting the site of The Landing project as a pro se litigant, I found myself outgunned by the resources available to the Citv and other project proponents. In 2006, 1 personally encouraged the formation of a nonprofit to represent citizens like myself who were concerned about The Landing project in particular and the integrity of the City's land use planning process in general. This resulted in the incorporation of ASE on May 19, 2006. ASE has followed the directions of its members since that date. 7. In response to the Hearing Examiner's concerns about the voting rights of members as provided in ASE's bylaws, ASE has adopted a series of Amended Bylaws in successive attempts to provide the appropriate level of "control" by its members. 8. On December 10, 2006, ASE's directors adopted Amended Bylaws that granted extensive voting rights to the members, including the election of directors, any increases or decreases in the number of directors, the removal of directors at any time with or without cause or notice, all amendments to ASE's Bylaws, all amendments to the corporation's Articles of Incorporation, and "any other matters that may properly be presented to the Members for a vote." See Amended Bylaws of Alliance for South End, December 10, 2006, a true and accurate copy of which is attached hereto as Exhibit A.2 9. On December 11, 2006, appeals of the Building Permit Approvals for Buildings 100 and 102 were filed on my behalf and on behalf of ASE. ASE's members were consulted before the appeals were filed and no objections were raised. See Minutes ECLARATION OF BRAD NICHOLSON - 2 Bucke Gordon LL.P WPIASE'WILDING PERM IMNICHOLSON DECLARATION 050807.DOC Seat First Avenue, Suite 500 Seattle, WA 9$121 (206) 382-4540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Special Meeting of Board of Directors of Alliance for South End, December 10, 2006, a true and accurate copy of which is attached hereto as Exhibit A.3. 10. On February 7, 2007, ASE's members exercised their right to approve amendments to ASE's Bylaws by granting additional rights to ASE's members in the Bylaws, including the right to determine the qualification of prospective members and to elect new members; the right to vote on any contemplated termination of membership; and the right to remove directors "with or without cause." See Amended Bylaws of Alliance for South End, February 7, 2007, 2006, a true and accurate copy of which is attached hereto as Exhibit A.4. 11. On March 11, 2007, a special meeting of the members and directors of ASE was held at a member's house in Renton. See Minutes of Special Meeting of the Members and Board of Directors of Alliance for South End, March 11 2006, a true and accurate copy of which is attached hereto as Exhibit A.5. At that meeting, the members were briefed on the status of ASE's appeals and standing issues in the appeals, discussed members' goals regarding The Landing project, and ratified all past actions of the members and directors, including "all actions concerning appeals, litigation and settlement of claims." The members elected three members as directors of the corporation and elected those members to the offices of President, First Vice President, and Second Vice President. The members "reiterated the importance of protecting the identities of ASE's Members due to a pattern of intimidation and marginalization by the City." They also "instructed the directors and attorneys to file an appeal of the Building Permit Approval for the structure designated as `Building 200."' 12. As documented in minutes from the March 11 meeting, the members considered a third set of Amended Bylaws at that meeting: "It was suggested that the bylaws be amended so that it is explicitly provided that the Members control the corporation. The Members and directors reviewed a set of bylaws changes . . . [and] approved making the changes." These Amended Bylaws provide that "[t]he Members shall control the direction of the corporation to the extent permitted by law"; that "[t]he directors shall carry out the direction of the members as expressed in such consultations [regarding major decisions concerning appeals, litigation, or settlement of claims] to the extent permitted by law"; and that "[i]t is the intention of the corporation and its Members that its actions be directed, to the extent permitted by law, by the Members' actions at membership meetings and by the Members' input in all consultations with directors." See Amended Bylaws of Alliance for South End, March 11 2006, a true and accurate copy of which is attached hereto as Exhibit A.6. 13. The Amended Bylaws adopted by ASE's members on March 11, 2007, are still in effect today. The three members who were elected as ASE's directors and officers on March I 1 remain in those positions. 14. I have personal knowledge of the facts stated in this declaration. I declare under the penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. 11 )ECLARATION OF BRAD NICHOLSON - 3 Bucko Gordon ALP AWP1ASEWILDTNG PERM FFSINICHOLSON DECLARATION 050807.DOC 2025 First Avenue, Suite 500 Seattle, WA 98121 {206) 382-9540 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 DATED this —9— day of May, 2007 DECLARATION OF BRAD NICHOLSON - 4 *�'ITP14nT4 Buck;2� Gordon LLp 2025 First Avenue, Suite SOo Seattle, 4:A 96121 (206) 362-9540 CONSENT TO ACTION OF DIRECTORS IN LIEU OF MEETING OF ALLIANCE FOR SOUTH END The undersigned, being the sole director of the Alliance for South End, acting pursuant to RCW 24.03.465 without the necessity of a formal meeting, hereby adopts the following resolutions and hereby consents to the taking of the actions herein set forth: WHEREAS, the Amendment to the Articles of Incorporation of Alliance for South End were filed with the Secretary of State's Office and failed to reflect that at the time of filing, the corporation had a member, the Board of Directors wishes to correct the filed Articles of Amendment to reflect that there was a non -voting member; WHEREAS, the Board of Directors has considered such correction to the amendments and restatements and has determined that such correction to the amendments and restatements would be in the best interests of Alliance for South End; NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that the correction to the amendments to the Articles of Incorporation of Alliance for South End (Articles of Amendment and Articles of Restatement of Articles of Incorporation), as set forth in the attached Exhibit A (incorporated herein by this reference) are hereby adopted for fling with the Washington Secretary of State, and FURTHER RESOLVED, that Peter L. Buck and the officers of this Corporation, or any of them, are hereby authorized and directed to take all necessary action to effect the correction of the amendments of the Articles of Incorporation, including filing corrected Articles of Amendment and Articles of Restatement of Articles of incorporation, with the Washington Secretary of State, FURTHER RESOLVED, that all actions previously taken by the directors, officers, agents and other representatives of the corporation, which have been disclosed to the board of directors in accordance with these resolutions and which otherwise are consistent with the purposes and intent of these resolutions, are hereby ratified, confirmed, and approved. Dated as of the " day of SEA 1838286v1 50665-10 Seattle .200 K EXHIBIT A.1 ARTICLES OF AMENDMENT WASHINGTON NONPROFIT CORPORATION ACT - 24.03 Pursuant to the provisions of RCW 24.03 of the Washington Nonprofit Corporation Act, the undersigned adopts the following Articles of Amendment to the Articles of Incorporation: The. name of record of the corporation is Alliance for South End 2. The corporation's UBI number is 602-615-462. 3. The person to contact about this filing is Jason A. Farber and his daytime telephone number is (206) 628-7657. 4. The articles of incorporation of the corporation are hereby amended in their entirety as set forth on the attached Exhibit A, which is incorporated herein by this reference. 5. There was a member as of May 25, 2006, but he did not have the right to vote on an amendment to the articles of incorporation of the corporation. The amendment was instead approved by majority vote of directors in office at a meeting of the board held on May 25, 2006. Dated May 25, 2006, Peter L Buck, Director, President FILING FEE $20 SEA 1813236v2 50665.10 Seattle EXITTSJT A ARTICLES OF AMENDMEM TO ARTICLES OF INCORPORATION OF ALLIANCE FOR SOUTH END The undersigned, in order to form a nonprofit corporation under Chapter 24.03 of the Revised Code of Washington, hereby signs and verifies the following Articles of Incorporation: ARTICLE I NAME The flame of the corporation is Alliance for South End. ARTICLE H MEMBERSHIP Qualification for membership in tho corporation shall be set out in the corporatian's Bylaws. ARTICLE, III DURATION The duration of the corporation shall be perpetual. ARTICLE fV PIWOSES AND POWERS Section 4.1 Purposes To advance its members' interests in the environment, land use planning, and governmentsl and fiscal integrity. Section 4.2 Powers. In general, and subject to such limitations and conditions as are or may be prescribed by law, or in the corporation's Articles of Incorporation or Bylaws, the corporation small have all powers which now or hereafter are coafr reed by law upon a corporation organized for the purpose set forth above, or are necessary or incidental to the - powers so conferred, or are conducive to the attainment of the corporation's purpose. ARTICLE V DIIMCTORS The mwagement of the corporation will be vested in a board of at least one director. The number, qualifications, terms of office, manner of election, time and place of meeting, and powers and duties of directors shall be prescribed by the Bylaws of the corporation. SCA 1913242V2 81-88 ARTICLE " LIMITATION OF DIRECTORS' LIA$ILIr'Y A director shall have no liability to the corporation for monetary damages for conduct as a director, except for acts or omissions that involve intentional misconduct by the director, or a knowing violation of law by the director, or for any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled. If the Washington Nonprofit Corporation Act is hereafter amended to authorize corporate action furtber eliminating or limiting the personal liability of directors, then the liability of a director shall be eliminated or limited to the full extent permitted by the Washington Nonprofit Corporation Act, as so wnended. Any repeal or modification of this Article shall not adversely affect arty right or protection of a director of the corporation existing at the time of such repeal or modification for or with rent to an act or omission of such director occurring prior to such repeal or modification. ARTICLE ViI INDEMNIFICATION Section 7.1 Right to Indemnification of Directors and Officers. Each person who was, or is threatened to be made a party to or is otherwise involved (mcluding, without limitadon, as a witness) in any actual or thz�eatencd action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the corporation or, while a director or officer, be or she is or was serving et the request of the corporation as a director, trustee, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, trustee, officer, employee or agent or in any other capacity while serving as a director, trustee, officer, employee or agent, shuil be indemnified and held harmless by the corporation, to the full extent permitted by applicable law as then in effect, against all expense, liability and. loss (including attorneys' fees, judgments, fines, MUSA excise taxes or penalties and amounts to be paid in settlement) actually and reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a persoa who has ceased to be a director, trustee, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in Section 7.2 of this Article with respect to proceedings seelgng solely to enforce rights to indemnification, the corporation shall indemnify any such person seelcing indemnification in connection with a proceeding (or part thereof) initiated by such person only if such promAng (or part thereof) was authorized by the board of directors of the corporation. The right to indemnification conferred in this Section 7.1 shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses in advance of the final disposition of a proceeding shall be made only upon delivery to the corporation of an undertati ng, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section 7.1 or otherwise. SEA 1913242YZBB-U Section 7.2 Right of Claimant to Bring Suit. if a claim for which indemnification is required under Section 7.1 of this Article is not paid in full by the corporation within sixty (60) days after a written claim has been received by the corporation, except in the case of a claim for expenses incurred in defending a proceeding in advance of its final disposition, in which case the applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, to the extent successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim The claimant shall be presumed to be entitled to indemnification under this Article upon submission of a written claim (arid, in an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition, where the required undertaking has been tendered to the corporation), and thereafter the corporation shall have the burden of proof to overcome the presumption that the claimant is so entitled. Neither the failure of the corporation (including its board of directors or independent legal counsel) to have made a determination prior to the commencem=t of such action that indernnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstances nor an actual detwTaination by the corporation (including its board of directors or independent legal counsel) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses shall be a defense to the action or create a presumption that the claimant is not so entitled Sectiou 7.3 Nonexelustvity of Rights. The right to indewnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation, Bylaws, agreement, or vote of disinterested directors or otherwise. Section 7.4 Insurance, Contracts and Funding. The corporation may maintain insurance at its expense, to protect itself and any director, trustee, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under RCW 24.03.043 of the Washington Nonprofit Corporation Act and RCW 2313.0$,510 of the Washington Business Corporation Act, or any successor provisions. The corporation may enter into contracts with any director or offiw of the corporation in furtherance of the provisions of this Article and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such, amounts as may be necessary to effect indemnification as r' provided in this Article. Section 7.5 Indemnification of Employees and Agents of the Corporadon. The corporation may, by action of its board of directors from time to time, provide indemnification. and pay expenses in advance of the final disposition of a proceeding to employees and agents of the corporation with the same scope and effect as the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the corporation or pursuant to rights granted pursuant to, or provided by, the Washington Business Corporation Act, as applied to nonprofit corporations, or otherwise. SEA 1813242V2 0"0 ARTICLE VIII AMENDMENT OF BYLAWS . T-ise authority to make, alter, amend or repeal Bylaws is vested in the board of directors, and may be exercised at any annual or special meeting of the board. ARTICLE IX DISSOLUTION Upon dissolution, or winding up, all the corporation's remaining assets shall be distributed by the board of directors to any other organization or to any of the members as the board of directors may determine in its sole discretion. il SPA 1813242V2 88.88 4 AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: December 10, 2006 SEA 1916819v2 5066�;-10 Seattle EXHIBIT A.2 TABLE OF CONTENTS Page ARTICLE1 Membership..............................................................................................................1. 1 Section1.1 Qualifications.......................................................................................................... I Section1.2 Rights of Members ................................................................................................. 1 Section 1.3 Certificates of Membership..................................................................................... 2 Section 1.4 Status of Membership.............................................................................................. 2 Section 1.5 Termination of Membership.................................................................................... 2 ARTICLE 2 Meetings of Members. ................................................................................................ 2 Section 2.1 Auival Meetings..................................................................................... ? Section2.2 Special Meetings..................................................................................................... 2 Section 2.3 Notice of Meetings Section 2.4 Quorum .......................... Section2.5 Voting..................................................................................................................... 4 Section 2-6 Meetings Held by Telephone or Similar Communications Equipment .................. 4 Section 2.7 Consultation with Members Re4garding Major Decisions. ............................. ........ 4 ARTICLE3 Board of Directors......................................................................................................4 Section 3.1 Powers and Qualifications....................................................................................... 4 Section3.2 Number and Term................................................................................................... 4 Section3.3 Committees.............................................................................................................. 4 Section3.4 Election.................................................................................................................... 5 Section3.5 Removal.................................................................................................................. 5 Section3.6 Vacancies................................................................................................................ 5 ARTICLE 4 Meetings of Board of Directors Section4-1 Annual Meeting...............................................................................I...... I................ 5 Section4.2 Special Meetings..................................................................................................... 5 Section4.3 Notice of Meetings.................................................................................................. 5 Section4.4 Quorum.................................................................................................................... 6 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment .................. 7 ARTICLE 5 Actions by IvVritten Consent....................................................................................... 7 ARTICLE6 Waiver of Notice........................................................................................................ 7 ARTICLE7 Officers....................................................................................................................... 7 Section 7.1 Officers Enumerated............................................................................................... 7 Section7.2 President.................................................................................................................. 7 Section7. 3 Vice President......................................................................................................... 8 Section7.4 Secretary.................................................................................................................. 8 Section7-5 Treasurer.................................................................................................................. 8 Section7-6 Vacancies................................................................................................................ 8 Section7.7 Salaries.................................................................................................................... 8 Section7.8 Removal.................................................................................................................. 8 0 SEA 1918919,,2 s006�,-10 scamle ARTICLE 8 Administrative and Financial Provisions .................................. Section8.1 Fiscal Year.............................................................................. Section 8? Loans Prohibited.................................................................... Section 83 Corporate Seal........................................................................ Section 8.4 Books and Records................................................................. Section 8.5 Amendment of Articles of Incorporation ............................... Section 8.6 Amendment of Bylaws ....................................... I................... Section 8.7 Rules of Procedure................................................................. SEA 1919819v2 50005-10 scatt1 C .................1.............. 8 ...................1............ 8 ................................ 8 ................................ 8 .......... I ... I ................. 8 ......I......................... 9 ............... ....I ......... ... 9 ................................ 9 AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 Ib1EMBERSHIP ,Section 1.1 Qualifications. The members of the corporation ("Members") shall consist of individuals, domestic or foreign profit or nonprofit corporations, general or limited partnerships, associations or other entities (each, a "Person") that have each of the following qualifications, as determined by the board of directors in its sole discretion: (a) The Person will support the purposes of the corporation and will not have a conflict with supporting the purposes of the corporation. (b) The Person has paid dues to the corporation in such amounts, if any, and at such times as the board of directors may establish by resolution. (e) The Person has made such applications or entered into such agreements as the board of directors may require. (d) The Person has been clected as a Member by the board of directors. Section 1.2 Rights of Members. The Members shall have the right to vote on matters as set forth in these Bylaws, including: (a) the election of directors. pursuant to RCW 24.03.100, (b) any increases or decreases in the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent, pursuant to RCW 24.03.100; (c) the removal of directors at any time with or without cause or notice, pursuant to RCW 24.03.103; (d) all amendments to these Bylaws, pursuant to RCW 24,03.070; (e) all amendments to the corporation's Articles of Incorporation, pursuant to RCW 24.03.1 65(l); (f) any sale, lease, e\JiLim,e, or other disposition of all or substantially all, of the corporation's property and assets, if not in the ordinary course of business.. pursuant to RCW 24.03.215(1); (g) any plan of merger- or consolidation of the corporation, pursuant to RCW 24.03.195(l ); SEA I91b819v2-;0665-I0 Seattle (h) any voluntary dissolution and winding up of the corporation, pursuant to RCW 24.03.220(1); (i) any plan providing for the distribution of assets in dissolution, pursuant to RCW 24.03.230(1); and (j) any other matters that may properly be presented to the Members for a vote, pursuant to the corporation's Articles of Incorporation, Bylaws, or action of the board of directors. or by operation of law. Section 1.3 Certificates of Membership. Certificates of membership in the corporation may be issued. If issued, they shall be numbered, and the respective Members' names shall be entered in the membership register of the corporation as the certificates are issued. Certificates, if any are issued, shall bear the Member's name and shall be signed by the president or the secretary. Section 1.4 Status of Membership. Membership in the corporation shall be personal, shall not survive the death of any individual Member, and may not be transferred by any means. Section 1.5 Termination of 'Membership. Membership in the corporation may be terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, (b) or for failure to actively support corporate purposes, or to actively participate in corporate activities, or (c) for failure continually to meet the qualifications of a Member pursuant to Section 1.1 of these Bylaws. Removal shall require the affirmative vote of three -fourths (3/41174) of directors present at a duly held meeting of the board of directors, In the event that any such termination is contemplated, the board of directors shall notify the Member in a record of the reasons for the proposed action, and of the time and place of the meeting of the board of directors at which termination is to be considered. not later than ten (10) days prior thereto. Prior to the meeting, the subject Member shall be entitled to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the board, the termination may be immediate, xvithout prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expirc, and for the transaction of such other business as may properly come before the meeting. shall be held each year at the registered office of the corporation, on the 1 st day of April.. at 10:00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half (1/2) of the SEA 191 X819v2 50665-10 Sca[tle votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (10) nor more than fifty (50) days after the receipt of said request. if the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meetin;, and in case of a special meeting, the time. place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten (10) days prior to the next succeedin^ regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email_ electronic network posting. facsimile, or by telegram or teletype. Section 2.3.1 Consent to Notice by Email. if notice is provided to Members by email; it is effective only with respect to Nlembers who have: (a) consented in writing or by email to receive notices transmitted by email: and (b) designated in the consent the message format that is accessible to the recipient. and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revolve the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure. by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2.3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for tl;at purpose. Section 2.3.3 Deliver}, of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email'), together with comprehensible instructions re;Tarding how to obtain access to the posting on the electronic network. Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the united States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. SFA 191019v2 �066�-10 5eaitic j Section 2.4 Quorum. Members holding one -tenth (1/10"') of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy. snail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting. or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney -in -fact - An executed proxy may be transmitted io the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (I 1) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted My conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting Section 2.7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the NIembers in advance of all major decisions concerning appeals, litigation or settlement of claims. .ARTICLE 3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (1). The Members, by amendment of these Bylaws. may increase or decrease the number of directors. provided that no decrease in number shall have the effect of shortening the term of anv incumbent. Each director shall bold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said SFA 191991W2 50665-10 Seattle resolution. However, no such committee shall have the authority of the board of directors to arnend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation: amend the Articles of Incorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting. to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, whenever in their judgment the best interests of the corporation will be served thereby. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylak s. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE 4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution of the membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three ()) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary. or by the director or directors calling the meeting, by SEA 191 S819%2 50665-10 Seattle regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meetin<L, of the board of directors need be specified in the notice or any waiver of notice of such mectino. Section 4.3.1 Consent to Notice by Email. If notice is provided to directors by email, it is effective only with respect to directors who have; (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message forinat that is accessible to the recipient, and the address. location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance witb the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Nehvork. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic Network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by entail), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section arc effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of' directors at which a quorum is present, any business may be transacted, and the board may excrcise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action SFA 1919819r2?000';-10 r Seattle' to either the person acting as secretary of the meeting before the adjourmnent of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taken at a meeting of the Members or board of directors (or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject natter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Byla%vs.. `executed" means: (a) a writing that is signed, or (b) an email transmission that is sent with sufficient information to determine the sender's identity. .-ARTICLE 6 WAIVER OF NOTICE 1A7henever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing, or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors. and shall serve until their successors are duly elected and qualified. Any two (2) or more offices be held by the same person, except the offices of president and secretary. In addition to the pcm ers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He'She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. SEA 1918819r2 �066�-10 Seattle Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts. and other obligations or instruments. in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records_ Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular boobs of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7.7 Salaries. The salaries of a]I officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 3 I . Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state- or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers and directors' names and addresses; minutes of the proceedings of the Menibcrs. if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any -Member of more than three (3) months' standing or a representative of snore than five percent (5%) of the membership. Costs of inspecting or copying SEA 1918819E? 5060i-10 Seattle �' shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation may be amended by the affirmative ~rote of a majority of the board of directors, subject to approval by a majority of the yIernbers at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any a>uival or special meeting of the board of directors and of the Members. Section 8.7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws. the Articles of Incorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson. being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on December 10, 2006. Fjm Nicho ion, Aecretary i 5CA 1918E W2 ;0667-10 Seattle A MINUTES OF SPECIAL MEETING OF BOARD OF DIRECTORS OF ALLIANCE FOR SOUTH END A special meeting of the board of directors of the corporation was held by telephone conference on December 10, 2006, at 1:00 p.m.- for the purpose of adopting Amended Bylaws and for the transaction of such other business as might come before the meeting. Margaret E. Potter, the sole member of board of directors, was present and presided as Chair of the meeting. Brad Nicholson, Vice President and Secretary of Alliance for South End, was also present by telephone conference. 1. Approval of Amendments to the Bylaivs. As the first order of business, the board considered amendment to the corporation's Bylaws. After discussion, the following resolution was made, duly seconded and unanimously adopted.: WHEREAS, Alliance for South End leas established on May 19, 2006, to advance its members' interests in the environment. land use planning, and governmental fiscal integrity of the City of Renton; WHEREAS, pursuant to this purpose, the sole Director of Alliance for South End has made a practice of consulting members in advance of decisions concerning appeals or litigation; WHEREAS, on August 31, 2006, after consulting members regarding the "Planned Action" and "Master Plan" appeals filed with the Hearing Examiner for the City of Renton by ASE, the Director of Alliance for South Fnd held a meeting in which she (1) elected Brad Nicholson as Vice President and Secretary- of' Alliance for South End; (ii) ratified and confirmed the election of members; and (iii) memorialized historic practice by adopting the following policy to guide future actions of Alliance for South End: The members shall be consulted by the director(s) in advance of all major decisions concerning appeals or litigation, including whether or not to appeal, whether to dismiss appeals, whether to settle, etc. The corporation shall carry out the directions of the members; WHEREAS.. on August 31, 2006. Alliance for South End and Brad Nicholson filed two additional appeals with the Hearing Examiner for the City of Renton, WHEREAS, on September 5. 2006. the Hearing Examiner for the City of Renton issued a decision to dismiss the "Planned Action" and `'Master Plan" appeals filed by Alliance for South End, which decision stated that the members of Alliance for South End "have no control of the litigation". WHEREAS, the Board of Directors has considered certain amendments to the Bvlaws of Alliance for South End that would memorialize the historic practice of consulting members .SEA 191871v1 5066_-10 EXHIBIT A.3 Scatllc r, pursuant to the purpose of Alliance for South End and has determined that it would be in the best interests of Alliance for South End to adopt such amendments; NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that the Amended Bylaws, attached hereto and incorporated herein by this reference, are hereby adopted and approved; and FURTHER RESOLVED.. that the Alliance for South End's officers are hereby authorized and directed to take all actions as reasonable and necessan, to effectuate the amendments to the Bylaws. 2. Direction to Sign Settlement Agreement. As the second order of business, the board discussed the Settlement Agreement and Release negotiated with Brad Nicholson, Harvest Partners, Target Corporation. and the City of Renton. After discussion, the following resolution was made, duly seconded and unanimously adopted: WHEREAS, the members have been polled and there were no objections to signing the Settlement Agreement; WHEREAS, the members have all signed statements confirming they are in agreement with the Settlement Agreement and authorizing Margaret E. Potter to bind ASE and its members to the provisions of the Settlement Agreement; NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that Margaret E. Potter is directed to sign the Settlement Agreement on behalf of the Corporation. 3. Direction to File Appeals. As the third order of business, the board discussed the building pezmit applications submitted by Harvest Partners for Buildings 101 and 102 in Quadrant C of The Landings Site Plan and approved by the City of Renton on or about November 28, 2006, which are not subject to the Settlement Agreement. After discussion, the following resolution ',Vas made, duly seconded and unanimously adopted: WHEREAS. the members have been polled and there were no objections to filing appeals of the Cit_y's decision to approve building permits for Buildings 101 and 102; WHEREAS, Buiidings 101 and 102 contain elements which are grossly contrary to the laws of the City of Renton; SEA 1915714v1 5W6 -14 Seattle NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that Buck & Gordon LLP is directed to file appeals of the City's decision to approve building permits for Buildings 101 and 102. There being no further business to come before the meeting, it was adjourned at 1:11 p.m. Brai'Meholson Secretary ATTEST: i Margaret E. Potter Sole Director/Chair SEA 191E7141 �066�-10 5cattle -+ J AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: February 7, 2007 SEA 1918819v3 0050665-000010 Seattle EXHIBIT A.4 TABLE OF CONTENTS Page ARTICLE1 Membership.............................................................................................. Section1.1 Qualifications ............................... ............................................................................ I Section1.2 Rights of Members...................................................................................................1 Section 1.3 Certificates of Membership......................................................................................2 Section1.4 Status of Membership..............................................................................................2 Section 1.5 Termination of Membership....................................................................................2 ARTICLE 2 Meetings of Members................................................................................................ 2 Section 2.1 Annual Meetings......................................................................................................2 Section2.2 Special Meetings......................................................................................................2 Section2.3 Notice of Meetings...................................................................................................3 Section2.4 Quorum....................................................................................................................4 Section2.5 Voting......................................................................................................................4 Section 2.6 Meetings Held by Telephone or Similar Communications Equipment...................4 Section 2.7 Consultation with Members Regarding Major Decisions ........................................ ARTICLE3 Board of Directors...................................................................................................... 4 Section 3.1 Powers and Qualifications.......................................................................................4 Section3.2 Number and Term....................................................................................................4 Section3.3 Committees..............................................................................................................4 Section3.4 Election..... ................ .................... - ...................................... I .... I ..................... 5 Section3.5 Removal...................................................................................................................5 Section3.6 Vacancies.................................................................................................................5 ARTICLE 4 Meetings of Board of Directors................................................................................. 5 Section4.1 Annual Meeting.......................................................................................................5 Section4.2 Special Meetings......................................................................................................5 Section4.3 Notice of Meetings...................................................................................................5 Section4.4 Quorum....................................................................................................................6 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment...................7 ARTICLE 5 Actions by Written Consent... .................................................................................... 7 ARTICLE6 Waiver of Notice........................................................................................................ 7 ARTICLE7 Officers....................................................................................................................... 7 Section 7.1 Officers Enumerated................................................................................................7 Section7.2 President...................................................................................................................7 Section7.3 Vice President..........................................................................................................8 Section7.4 Secretary..................................................................................................................8 Section7.5 Treasurer..................................................................................................................8 Section7.6 Vacancies.............................................................................................1...................8 Section7.7 Salaries.....................................................................................................................8 Section7.8 Removal...................................................................................................................8 ARTICLE 8 Administrative and Financial Provisions................................................................... 8 Section8.1 Fiscal Year... .............. - ..................... ................................... ................. ................ 8 i 5EA 1919819v3 0050665-000010 Seattle Section8.2 Loans Prohibited......................................................................................................8 Section8.3 Corporate Seal..........................................................................................................8 Section8.4 Books and Records..................................................................................................8 Section 8.5 Amendment of Articles of Incorporation.................................................................9 Section 8.6 Amendment of Bylaws............................................................................................9 Section8.7 Rules of Procedure...................................................................................................9 11 SEA 1918819v3 0050665-000010 Seattle AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 I1ENIBERSHIP Section 1.1 Qualifications. The members of the corporation ("Members") shall consist of individuals, domestic or foreign profit or nonprofit corporations, general or limited partnerships, associations or other entities (each, a "Person") that have each of the following qualifications, as determined by the Members: (a) The Person will support the purposes of the corporation and will not have a conflict with supporting the purposes of the corporation. (b) The Person has paid dues to the corporation in such amounts, if any, and at such times as the board of directors may establish by resolution. (c) The Person has made such applications or entered into such agreements as the board of directors may require. (d) The Person has been elected as a Member by the membership at a regular or special meeting of the Members. Section 1.2 Rights of Members. The Members shall have the right to vote on matters as set forth in these Bylaws, including: (a) the election of directors, pursuant to RCW 24,03.100; (b) any increases or decreases in the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent, pursuant to RCW 24.03.100; (c) the removal of directors at any time with or without cause or notice, pursuant to RCW 24.03.103; (d) all amendments to these Bylaws, pursuant to RCW 24.03.070; (e) all amendments to the corporation's Articles of Incorporation, pursuant to RCW 24.03.165(1); (f) any sale, lease, exchange, or other disposition of all or substantially all, of the corporation's property and assets, if not in the ordinary course of business, pursuant to RCW 24.03.215(1); (g) any plan of merger or consolidation of the corporation, pursuant to RCW 24.03.195 (1); SEA 1918819ti-3 0050665-000010 seattle (h) any voluntary dissolution and winding up of the corporation, pursuant to RCW 24.03.220(1); (i) any plan providing for the distribution of assets in dissolution, pursuant to RCW 24.03.230(1); and 0) any other matters that may properly be presented to the Members for a vote, pursuant to the corporation's Articles of Incorporation, Bylaws, or action of the board of directors, or by operation of law. Section 1.3 Certificates of Membership. Certificates of membership in the corporation may be issued. If issued, they shall be numbered, and the respective Members' names shall be entered in the membership register of the corporation as the certificates are issued. Certificates, if any are issued, shall bear the Member's name and shall be signed by the president or the secretary. Section 1.4 Status of Membership. Membership in the corporation shall be personal, shall not survive the death of any individual Member, and may not be transferred by any means. Section 1.5 Termination of Membership. Membership in the corporation maybe terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, (b) or for failure to actively support corporate purposes, ar to actively participate in corporate activities, or (c) for failure continually to meet the qualifications of a Member pursuant to Section 1.1 of these Bylaws. Removal shall require the affirmative vote of three -fourths (3/4t") of the Members. In the event that any such termination is contemplated, the Members shall notify the Member in writing of the reasons for the proposed action, and of the time and place of the meeting of the Members at which termination is to be considered, not later than ten (10) days prior thereto. Prior to the meeting, the subject Member shall be entitled to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the membership. the termination may be immediate, without prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expire, and for the transaction of such other business as may properly come before the meeting, shall be held each year at the registered office of the corporation, on the 1st day of April, at 10:00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half (1/2) of the votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty SEA 1918819v3 0050665-000010 Seattle 2 of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (10) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten (10) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype_ Section 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email: and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revolted if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2.3.2 Deliverer of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 2.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. SEA 1918819u3 0050665-000010 Seattle 3 Section 2.4 Quorum. Members holding one -tenth (1/il)') of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney -in -fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting Section 2.7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims. ARTICLE 3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (1). The Members, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent. Each director shall hold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said SEA 1918819v3 0050665-000010 Seattle 4 resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation; amend the Articles of Incorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting, to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, with or without cause. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE 4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution of the membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors maybe held at any place and time, whenever called by the president, secretary, or any three (3) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by SEA 19188190 0050665-000010 Seatk regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 Consent to '_Notice by Email. If notice is provided to directors by email, it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action SEA 191 &$1 M 0050665-000010 Seattle 6 to either the person acting as secretary of the meeting before the adjournment of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE S ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taken at a meeting of the Members or board of directors (or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Bylaws, "executed" means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE 6 WAIVER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors, and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. Hc./She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. SEA 1918819v3 0050665-000010 Seattle 7 Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. it shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records. Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7.7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 31. Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers' and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any Member of more than three (3) months' standing or a representative of more than five percent (5%) of the membership. Costs of inspecting or copying SEA 19188190 0050665-600010 Seattle shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation may be amended by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles of Incorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on February 7, 2007, Brad Nicholson, Secretary SEA 19188190 0050665-OOOO10 Seattle 9 A CONFIDENTIAL/ PRIVILEGED INFORMATION REDACTED MINUTES OF SPECIAL MEETING OF THE MEMBERS AND BOARD OF DIRECTORS OF ALLIANCE FOR SOUTH END A special meeting of the Members and board of directors of the Alliance for South End CASE" or the "corporation") was held at Renton, WA (the residence of ASE Member ) on March 11, 2007, at 3:15 p.m., for the purpose of electing directors and officers, adopting Amended Bylaws_ and for the transaction of such other business as might come before the meeting. Margaret E. Potter; the sole member of board of directors, was present and presided as Chair of the meeting. Brad Nicholson, Vice President and Secretary of ASE, was also present. All other Members were present except , who was consulted in advance of this meeting and who gave his proxy vote to Attorneys Duncan Greene and Peter Buck were also present. 1. Report from Counsel on ASE Appeals and Standing Issues. As the first order of business, attorneys Duncan Greene and Peter Buck briefed the Members on the status of the Master Plan appeals, Site Plan appeals, and Building Permit appeals of The Landing. 2. Discussion of Member Goals Regarding The Landing and other Land Use Actions in Renton. As the second order of business, the Members engaged in a general discussion of The Landing project. They were unanimous in their opinion that the approvals being issued for The Landing are grossly contrary to the laws of the City of Renton and the State of Washington. both substantively and procedurally. They instructed the directors and their attorneys to vigorously pursue all appeals and to continue to appeal further approvals that follow what is considered to be an illegal course of action. Specifically, the Members instructed the directors and attorneys to file an appeal of the Building Permit Approval for the structure designated as "Building ?00." They also instructed the directors and attorneys to file a Land Use Petition Act (LUPA) action seeking to overturn what is an expected denial of ASE's appeal currently pending before the Renton City Council. 3. SFA 1918714v] 10665-10 statue EXHIBIT A.5 4. Ratification of Past Actions of Members and Directors. As the fourth order of business, the Members ratified all past actions of the Members and directors, including but not limited to all actions concerning appeals; litigation and settlement of claims. 5. Approval of Amendments to the Bylaws. As the fifth order of business, the Members and directors considered amendment to the corporation's Bylaws. It was suggested that the bylaws be amended so that it is explicitly provided that the Members control the corporation. The Members and directors reviewfd a proposed set of bylaws changes, which are attached to these minutes. The Members all approved making the changes. It was moved and seconded by the directors that the changes be made and the motion was adopted unanimously. 6. Election of Directors. As the sixth order of business. the Members considered the election of new directors of the corporation. After discussion, it was moved and seconded that Brad Nicholson, . an be elected as directors of the corporation. The Members who were present voted unanimously to approve the election of Brad Nicholso and as directors of the corporation. 7. Resignation of Officers. As the seventh order of business, the board accepted the resic,nations of Margaret Potter as President and Brad Nicholson as Vice President and Secretary. S. Election of Officers. As the eighth order of business, the board considered the election of officers of the corporation. After discussion, it was moved and seconded that Brad Nicholson be elected to the office of President, that be elected to the office of First Vice President, that be elected to the office of Second Vice President. and that Margaret Potter be elected to the offices of Secretary and Treasurer. The directors who were present voted unanimously to approve the elections of Brad Nicholson to the office of President. the election of o the office of Vice President, the election o o the office of Second Vice President_ and the election of Margaret Potter to the offices of Secretary and Treasurer. 9. Discussion Regarding Protection of Member Identities. As the ninth order of business, the Members and directors reiterated the importance of protecting the identities of ASE's Members due to a pattern of intimidation and marginaliz4tion by the City of Renton, 10. Discussion of Agenda for 2007 Annual Meeting. As the last order of business, the 45 Members and directors discussed agenda items for the 2007 annual membership meeting. There being no further business to come before the meeting. it was adjourned at E°C'p_m. ti Mar« P tter 5ecr. SEA 1918714v1 50665-I0 Seattle ATTEST: ad Nicholson Director/President SLA 1919714vI �0665-10 Seattle AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: March 11, 2007 5EA 1918819v3 005066 5-0000 10 Seattle EXHIBIT A.6 " TABLE OF CONTENTS ARTICLElMembership ............ .................. .................. ............................................................. ] Sectionl.} Qualifications .......................................................... ................................................ 1 Section].2 Rights OfMembers ........... ..................................................................................... 1 Section 1.3Cert\ficmteS0f --.... ................................................ ......................... 2 Section L4 Status nf Membership -------------------------------.2 Section 1.5 Termination ofMembership ......... .......................................................................... 2 ARTICLE 2 Meetings OfMembers ............... .................................................... ........................... 2 Section2.lAnnual Meetings ....... ................................ ..................................... ....................... 2 Section 2.2 Special Meetings --------__________________________3 Section2.3 Notice ofMectious.......... .................................................... .................................. 3 Section2.4 Quorum .................... .................. ............................................................................ * Section 2.5 Voting ---------------------------------------.4 Section 2.6 Meetings Held by Telephone ozSimilar Communications Equipment ------.4 SectjOo2.7 Consultation with Members Regarding Major Decisions ....... ............................... 4 ARTICLE3 Board o[Directors ...................................................................................................... 4 Sectoo3.l Powers and (]ualificntnox--.......... ...................................................................... 4 Section3.2 Number and Term ......................... ....... --...... ..................................................... 5 Section33 Committees .................... .................. ............................ ................ ................. ... .5 Section34 Election ................................. .................................................................................. 5 Sention3.5 Removal ...................................... ........................................... ................................ 5 Section3.6 Vacancies .............................................................. .................................................. 5 ARTICLE 4Meetings nfBoard ofDirectors .................................................................................. 5 Section4.1 Annual Meeting ............................. ........................................................................ 5 Section 4.2 Special M------------_----_________________6 Section4.] Notice of Meetings................................. ................................................................ 6 SeCtiuo4.4 Quorum ............................. ............................................. ....................................... 7 Sectioo4.5 Meetings Held bvTelephone orSimilar Communications Equipment ................... 7 ARTICLE 5 Actions by Written Consent ........................................ ............................................... / ARTICLE6 Waiver of Notice .................................................... .............................. .............. ..... / ARTICLE7Officers ............................................ .......................................................................... / Seodoo7.l Officers Enumerated .............................. ...................................... .......................... 7 Section7.3 President .................................................... ............................................................. 8 Section7.3 Vice President ............... ...................................... -................................... ............ 8 Section7'4 Secretary ...................... ... ................. .................................... ................... ......... R Section7.5 Treasurer ................................... -........................................ ....................... ........ n Scctioo7.6 Vacancies ............................. ............... ................................................................... 8 Section7.7 Salaries .................... ................................................................................................ 8 Section7.8 Removal ................................................................................................................... 0 ARTICLE 8 Administrative and Financial Provisions .................................................................... 8 Sec1izo8.l Fiscal Year ............................................................................................................... n � / SEA 19198/9v3005066-000010 Section8.2 Loans Prohibited......................................................................................................8 Section8.3 Corporate Seal.........................................................................................................9 Section8.4 Books and Records.................................................................................................. 9 Section 8.5 Amendment of Articles of Incorporation................................................................9 Section8.6 Amendment of Bylaws............................................................................................ 9 Section8.7 Rules of Procedure...................................................................................................9 SEA 19188190 0050665-000010 Seattle AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 ME_VIBERSHIP Section 1.1 Qualifications. The members of the corporation ("Members") shall consist of individuals, domestic or foreign profit or nonprofit corporations, general or limited partnerships, associations or other entities (each, a "Person") that have each of the following qualifications, as determined by the Members: (a) The Person will support the purposes of the corporation and will not have a conflict with supporting the purposes of the corporation. (b) The Person has paid dues to the corporation in such amounts, if any, and at such times as the board of directors may establish by resolution. (e) The Person has been elected as a Member by the membership at a regular or special meeting of the Members. Section 1.2 Rights of Members. The Members shall control the direction of the corporation to the extent permitted by law and shall have the right to vote on matters as set forth in these Bylaws, including: (a) the election of directors, pursuant to RCW 24.03.100; (b) any increases or decreases in the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent, pursuant to RCW 24.03.100; (c) the removal of directors at any time with or without cause or notice, pursuant to RCW 24.03.103; (d) alI amendments to these Bylaws, pursuant to RCW 2.4.03.070 (e) the election of Members pursuant to RCW 24.03.065 and termination of membership pursuant to Section 1.5 of these Bylaws; (f) all amendments to the corporation's Articles of Incorporation, pursuant to RCW 24.03.165(1); (g) any sale, lease, exchange, or other disposition of all or substantially all, of the corporation's property and assets, if not in the ordinary course of business, pursuant to RCW 24.03.215(1); SEA 1918819v3 0050665-000010 Seattle (h) 24.03.195(1); (i) RCW 24.03.220(1); any plan of merger or consolidation of the corporation, pursuant to RCW any voluntary dissolution and winding up of the corporation, pursuant to 0) any plan providing for the distribution of assets in dissolution, pursuant to RCW 24.03.23 0(1); and (k) any other matters that may properly be presented to the Members for a vote, pursuant to the corporation's Articles of Incorporation, Bylaws, or action of the board of directors, or by operation of law. Section 1.3 Certificates of Membership. Certificates of membership in the corporation may be issued. If issued, they shall be numbered, and the respective Members' names shall be entered in the membership register of the corporation as the certificates are issued. Certificates, if any are issued, shall hear the Member's name and shall be signed by the president or the secretary. Section 1.4 Status of Membership. Membership in the corporation shall be personal, shall not survive the death of any individual Member, and may not be transferred by any means. Section 1.5 Termination of Membership. Any Member may resign from the corporation by delivering a written resignation to the president or secretary of the corporation. Membership in the corporation may be terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, as determined by the Members; (b) for failure to actively support corporate purposes, or to actively participate in corporate activities, as determined by the Members, or (c) for failure continually to meet the qualifications of a Member pursuant to Section 1.1 of these Bylaws, as determined by the Members. Removal shall require the affirmative vote of three -fourths (3/4"') of the Members. In the event that any such termination is contemplated, the Members shall notify the Member in writing of the reasons for the proposed action, and of the time and place of the meeting of the Members at which termination is to be considered, not later than ten (10) days prior thereto. Prior to the meeting, the subject Member shall be entitled to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the membership, the termination may be immediate; without prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expire; and for the transaction of such other business as may, properly come before the meeting; shall be held each year at the registered office of the corporation, on the first Saturday of April, at 10:00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a Sunday or a holiday. SFA 1918819v3 0050665-000010 seattle Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half (1/2) of the votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (10) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten (10) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. Section 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient. and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2.3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 2.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the postin., by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. SEA 19188190 0050665-000010 Seattle Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 2.4 Quorum. Members holding one -tenth (1/lot") of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney -in -fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting Section 2.7 Consultation with 'Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims. The directors shall carry out the direction of the members as expressed in such consultations to the extent permitted by law. ARTICLE 3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors, as directed by the Members. It is the intention of the corporation and its Members that its actions be directed, to the extent permitted by law, by the Members' actions at membership meetings and by the Members' input in all consultations with directors. With respect to any matter which the law requires that the board of directors determine, but where the members have expressed themselves on such matter, the directors shall carry out the direction of the members to the extent permitted by law. SEA 19188190 0050665-000010 ,Seattle 4 Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (1). The Members, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent. Each director shall hold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The hoard of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation; amend the Articles of Incorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting or any special meeting, to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, with or without cause. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE 4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any SEA 1918819v3 0050665-000010 Seattle class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution of the membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three (3) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 Consent to Notice by Email. if notice is provided to directors by email, it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address; location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to recei�,e notices by emaiI), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of ?notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a SEA 19188190 0050665-000010 seattle 6 meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action to either the person acting as secretary of the meeting before the adjournment of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taken at a meeting of the Members or board of directors (or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Bylaws, `'executed", means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE 6 WAIVER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and SEA 1918819v3 0050665-000010 Seattle assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors at the annual membership meeting or any special meeting, and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe, Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He/She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records. Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7.7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 31. Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. SEA 1918819v3 0050665-000010 Seattle Section 8.3 Corporate Sea[. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers' and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any Member of more than three (3) months' standing or a representative of more than five percent (5%) of the membership. Costs of inspecting or copying shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation may be amended by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles of Incorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on March 11, 2007. Brad Nicholson, Secretary SEA 1918819v3 0050665-000010 seattie 9 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 191 20I 21 22 23 24 251 261 CITY OF RENTON MAY 0 8 2007 EIVED CITY CLERKS OFFICE BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of } Alliance for South End (ASE) re: ) The Director's Administrative Decision ) Designating The Landing Master Plan ) Application a Planned Action ) The Director's Master Site Plan Approval ) Alliance for South End (ASE) and ) Brad Nicholson re: ) The Director's Administrative Site Plan Approval} and Interpretation/Policy Decision ) NO, LUA-05-136, SA -A, SM CERTIFICATE OF SERVICE I hereby certify that, on May 8, 2007, 1 caused to be served the foregoing APPELLANTS' I RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING PERMIT APPEALS and this CERTIFICATE OF SERVICE by hand delivery to: Ms. Bonnie Walton, City Clerk City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 Mr. Jerome Hillis Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 ❑ Via Facsimile ❑ Via Facsimile ❑ Via Email ❑ Via Email IN Via Hand Delivery 0 Via Hand Delivery ❑ Via U.S. Mail ❑ Via U.S. Mail CERTIFICATE OF SERVICE - I YAWPIASEISITE PLAN APPEALICERTIFICATE OF SERVICE.2007.DW ORIGINAL BuckeGordon ALP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 Ms. Ryan Durkan Mr. Lawrence J. Warren Hillis Clark Martin & Peterson Renton City Attorney 1221 Second Avenue, Suite 500 Warren, Barber, & Fontes Seattle, WA 98101-2925 100 S. Second Street Renton, WA 98057 ❑ Via Facsimile ❑ Via Email ❑ Via Facsimile IM Via Hand Delivery ❑ Via Email ❑ Via U.S. Mail IN Via Hand Delivery ❑ Via U.S. Mail Ms. Zanetta Fontes Mr. Fred Kaufman, Hrg Examiner (c/o Ms. Renton City Attorney Bonnie Walton, City Clerk) Warren, Barber, & Fontes City of Renton 100 S. Second Street 1055 South Grady Way, 7th Floor Renton, WA 98057 Renton, WA 98055 ❑ Via Facsimile ❑ Via Facsimile ❑ Via Email ❑ Via Email fa Via Hand Delivery Do Via Hand Delivery ❑ Via U.S. Mail ❑ Via U.S. Mail Subscribed to under penalty of perjury under the laws of the State of Washington this 8`h day of May, 2007 in Seattle, Washington. c Eynlie M. Overlie CERTIFICATE OF SERVICE - 2 YAWP%ASEISITE PLAN APPEALTERTIFICATE OF SERVICE.2007,DOC Bucke. Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 96121 (206) 382-9540 CITY OF RENTON HEARING EXAMINER PUBLIC HEARING April 24, 2007 AGENDA COMMENCING AT 9:00 AM, COUNCIL CHAMBERS, 7TH FLOOR, RENTON CITY HALL The application(s) listed are in order of application number only and not necessarily the order in which they will be heard. Items will be called for hearing at the discretion of the Hearing Examiner. PROJECT NAME: The Landing Building Permit B060688 Appeal PROJECT NUMBER: LUA-07-031, AAD PROJECT DESCRIPTION: Appeal of Building Permit B060688, Building 200 of The Landing, which is a 18,100 square foot one-story building located south of N 10th Street between Logan Avenue N and Park Avenue N. The appeal contends that the building permit was issued erroneously as it is based on a flawed Master Site Plan approval and subsequent Site Plan approval. I PROJECT NAME: The Landing Building Permit B060540 Appeal PROJECT NUMBER: LUA-07-037, AAD I PROJECT DESCRIPTION. Building 101 is a 20,400 square foot one-story building and Building 102 is a 21,000 square foot one-story building. The buildings are attached and are located northeast of the intersection of Park Avenue N and N 8th Street. The appellant contends that the building permit was issued erroneously as the approval was based on a flawed Master Site Plan approval and subsequent Site Plan approval. HEX Agenda 4-24-07.doc ' CITY OF RENMN 1 APR 17 2007 2 RECEIVED CITY CLEWS OFFICE 3 r2. CCPM Y 4 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 5 6 In the Matter of the Appeal of 7 8 Alliance for South End (ASE) and 9 Brad Nicholson re: The Building Permit Application Approval for Buildings 101 10 And 102 11 No. B060540 CITY OF RENTON'S MOTION TO DISMISS FOR LACK OF STANDING AND JURISDICTION 12 13 I. INTRODUCTION 14 The City of Renton joins with Applicant Harvest Partners' motions to 15 dismiss Alliance for South End's (ASE) appeals for lack of standing and 16 incorporates by this reference, the arguments made therein. 17 18 II. FACTS 19 On or about November 28, 2006 city staff issued an approval for a building 20 permit for the subject buildings. This approval followed an approval of a site plan 21 (August, 2006), a designation that The Landing was a planned action under the 22 Planned Action Ordinance (May, 2006), an approval of the Master Site Plan (May, 23 24 2006) , Council Approval of a Planned Action (November 2004), Council approval 25 of an amended Conceptual Plan ( aka Center Oaks Conceptual Plan --October 26 27 City of Renton's Motion to Dismiss for Lack of 28 Standing Page 1 OR11GINIAL WA"E 1 BARBER & FOIE TRS, F.S. ATTORNEYS AT LAW LOO SOUTH SECOND STREET . POST OFFICE BOX 626 RENTON, WASHINGTON 98057 PHONE (425) 255-867R . FAX (4251 255.5474 1 2004), and an FEIS on the original Boeing Concept Plan (October 2003)_ Renton 2 hereby incorporates by this reference its briefing in the appeals of the Planned 3 4 Action Ordinance, the Master Site Plan Approval, the Site Plan Approval, and the 5 appeal of the Director's Interpretations. 6 III. ISSUES 7 1. Is the issuance of a building permit following prior approvals that have 8 not been overturned a mere ministerial act, and not subject to appeal? 9 IV. ARGUMENT 10 11 1. The issuance of a building permit, following prior approvals, is a 12 more ministerial act and not subject to appeal. 13 In the case of Perry v. Department of Labor and Industries, 48 Wn. 2d 205, 14 292 P.2d 366 (1956), the state high court set out the long standing proposition that 15 16 where there is an earlier order that the department was following and 17 implementing, there could not be an appeal. 18 The salient facts are not in dispute: the building permits at issue here follow 19 all necessary prior approvals. Appellants have not taken any legal steps to stop 20 the construction about which they complain. Therefore, there is no legal reason 21 upon which the city could rely to refuse the building permits at issue here. To do 22 �3 so would open the city to liability. 24 If Appellants held the belief that they would be truly harmed, versus the 25 speculative harm to a non-party, Westfield, they would have long since sought 26 City of Renton's Reply to ASE's Response to 27 Harvest Partners' Motions to Dismiss for 28 Lack of Standing - 2 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW WO SOUTH SECOND STREET lN• POST OFFICE BOX 626 RENTON. WASH 'TON 98057 PHONE 14Z5) 1554467R • FAX OZS5 255h474 • I - 1 judicial relief to stop the construction. Rather, Appellants herein are not truly 2 harmed, as Renton and Harvest Partners have argued throughout all of the 3 4 appeals concerning The Landing project. 5 V. CONCLUSION 6 The City of Renton respectfully requests that its motion to dismiss 7 and that of Harvest Partners be granted. 8 DATED this 20 day of July, 2006. 9 WARREN BARBER & FONTES, P.S. 10 11 12 Zane a L. Fontes, WSBA No. 9604 13 Att eys for City of Renton 14 15 16 17 18 19 20 21 22 23 24 25 Fxi �7 City of Renton's Reply to ASE's Response to Harvest Partners' Motions to Dismiss for 28 Lack of Standing - 3 WARREN BARBER Cis ]FONTES, P.S. ATTORNEYS AT LAW i p0 "ITH SECOND STREET POST OFFICE BOX 626 RENTON, WASHINGTON 9M57 PHONE (425) 255.967E • FAX (425) 255.5474 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 14 20 21 22 23 24 25 26 27 28 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeal of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval. No.B060540 B060688 CERTIFICATE OF SERVICE I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson, P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. 1 hereby certify that on the 171h day of April 2007, I caused to be delivered via legal messenger a true and correct copy of (1) Applicant's Motion to Dismiss ASE and Nicholson Appeals From the Landing Building Permit Approval for Lack of Standing (No. B060688) with Exhibits A-G; (2) Applicant's Motion to Dismiss ASE and Nicholson Appeals From the Landing Building Permit Approvals for Lack of Standing (No. B060540) with Exhibits A-G, and (3) this Certificate of Service to the following; Mr. Fred Kaufman, Hearing Examiner Office of the Clerk City of Renton City of Renton 1055 South Grady Way 1055 South Grady Way Renton, WA 98055 Renton, WA 98055 Lawrence J. Warren, City Attorney Peter L. Buck Warren Barber & Fontes, P.S. Buck & Gordon, LLP 100 South Second Street 2025 First Avenue, Suite 500 Renton, WA 98057 Seattle, WA 98121-3140 Certificate ofService-Page 1 of �RIGINA HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 i 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 Brad Nicholson c/o Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 DATED this day of April, 2007. #345401 18449-004 79$h0I!.doc 4/17/07 Certificate of Service - Page 2 of 2 Ross Radley Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East, Suite 250 Seattle, WA 98102 HILLIS CLARK MARTIN & PETERSON, P.S. C�� Gina C. Pan Legal Assistant to T. Ryan Durkan HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 T 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 RECOVEd APR BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: Building Permit Application Approval for Buildings 101 and 102. B060540 APPLICANT'S MOTION TO DISMISS ASE AND NICHOLSON APPEALS FROM THE LANDING BUILDING PERMIT APPROVALS FOR LACK OF STANDING I. INTRODUCTION Appellant Alliance for South End ("ASE"), a front group funded by a competing shopping mall, and Appellant Brad Nicholson, a member of ASE, have filed appeals related to a Building Permit Approval for two buildings, Buildings 101 and 102, located in Applicant Harvest Partners' project, The Landing. A site plan depicting Buildings 101 and 102 is attached hereto as EXHIBIT A. These appeals represent the third round of appeals, or "Landing III",I with "Landing I" being ASE's previous appeals of The Landing's master plan approval and The Landing's planned action designation, and "Landing II" being ASE and Mr. Nicholson's previous appeals of The Landing's site plan approval. In September 2006, the City of Renton Hearing Examiner dismissed both of ASE's Landing I appeals due to ASE's lack of standing. On appeal, the Renton City Council affirmed the dismissal of ASE's ' ASE and Mr. Nicholson have also filed appeals of the City's building permit approval for Building 200 in The Landing, under Case No. B060688. Those appeals are also currently pending before the Hearing Examiner, and the parties have agreed to consolidate the hearing on these appeals. Together, therefore, the two building permit appeals represent the third round, or "Landing III" of appeals. However, because of the differences between the two appeals due to the different filing dates, Applicant has filed a separate motion to dismiss those appeals, HILLIS CLARK MARTIN & Motion to Dismiss Appeals of PETERSON, P.S._ Building Permit Approval - Page 1 of'] d"��� 500 Galland Building, 1221 Second Ave :1 Seattle WA 98101-2925 206.623,1745; fax 206.623.7789 a 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 Landing I appeals. In February 2007, the Examiner dismissed ASE's Landing I1 appeal due to ASE's lack of standing. In an attempt to demonstrate standing while the Landing II appeal was still pending, ASE supplemented the Landing II record with various "excerpts" from ASE's Bylaws, ASE's corporate meeting minutes, and, finally, several full copy versions of ASE's Bylaws. Despite these changes in form, however, the substance of the organization — a shell group in existence to thwart economic development in Renton — clearly remained unchanged as of the date of the Landing III appeals. IL RELIEF REQUESTED Applicant Harvest Partners seeks an order from the Examiner dismissing the appeals of ASE and Mr. Nicholson, dated December 11, 2006, pertaining to the City of Renton's Building Permit Approval for Buildings 101 and 102 in The Landing. The appeals should be dismissed for lack of standing. III. STATEMENT OF FACTS A. ASE's Master Plan Appeals Dismissed for Lack of Standing ASE is a Washington nonprofit corporation established in May of 2006 by the attorney for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall. In May and June 2006, ASE filed appeals of the City's master plan approval for The Landing, and the City's determination that The Landing was consistent with the adopted Planned Action Ordinance. In the course of those appeals ("Landing I"), and based upon ASE's official filings with the Washington Secretary of State's office, Applicant gathered the following facts related to ASE's corporate status: ■ ASE had only one named member, Brad Nicholson. ■ Peter Buck, an attorney whose Iaw firm represents Westfield, served as ASE's initial Director, President, Incorporator and Secretary. Motion to Dismiss Appeals of Building Permit Approval - Page 2 of 10 HiLL[S CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ■ ASE replaced Mr. Buck with a new Director and President, Margaret Potter. Ms. Potter is a former employee of Buck & Gordon, the firm representing Westfield. ■ Westfield was funding ASE's litigation. ■ According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to Applicant on the eve of the hearing on ASE's Landing I appeals, ASE's members had very limited rights overall, and had no right whatsoever to direct the course of ASE's litigation. A copy of the excerpt from ASE's Bylaws is attached hereto as EXHIBIT B. Based on these facts, the Renton Municipal Code, and standing jurisprudence, on September 5, 2006, the City of Renton Hearing Examiner dismissed both of ASE's appeals for lack of standing. A copy of the Examiner's decision is attached hereto as EXHIBIT C (the "Examiner's Landing I Decision"). The Examiner's Landing I Decision was affirmed by the Renton City Council on March 12, 2007. A copy of the City Council's decision is attached hereto as EXHIBIT D (the "City Council Decision"). B. ASE's Site Plan Appeal Dismissed for Lack of Standing On August 31, 2006, ASE and Mr. Nicholson filed appeals of the City's site plan approval for The Landing. In the course of those appeals ("Landing II"), Applicant gathered the following additional facts related to ASE's corporate status: ■ ASE's sole director, Margaret Potter, allegedly held a meeting with herself at her home in Mt. Vernon on August 31, 2006 — the same day that the site plan appeal was filed --- to accept the resignation of officers, elect new officers, elect new (unnamed) members, and to adopt the following new "policy statement": The members shall be consulted by the Board of Directors in advance of all major decisions concerning appeals or litigation, including whether or not to appeal, whether to dismiss appeals, whether to settle, etc. The corporation shall carry out the directions of the members. Motion to Dismiss Appeals of Building Permit Approval - Page 3 of 10 HILLIS CLARK MARTIN & PETERSON, A.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 I On December 10, 2006 — the day before the present appeals were filed — 2 Margaret Potter (still the sole director of ASE) purportedly held another 3 meeting in which she adopted amended Bylaws and, after "consultation" with 4 the members, decided to file the present appeals. 5 The amended Bylaws, effective December 10, 2006,2 modified the voting 6 rights of the members and included a new Section 2.7 requiring the board of 7 directors to "consult" with members regarding major decisions. A copy of 8 ASE's December 10, 2006 Bylaws is attached hereto as EXHIBIT E. 9 Interestingly, the key sentence of ASE's "policy statement," requiring ASE not 10 only to "consult" but actually to carry out the direction of the members, was I I notably absent from the new Section 2.7: 32 Section 2.7: Consultation with Members Regarding 13 Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major 14 decisions concerning appeals, litigation or settlement of claims. 15 16 ■ The amended Bylaws included minor alterations to Section 1.5, regarding 17 Termination of Memberships, but did not change the fact that the directors 18 could terminate the memberships at any time and without prior notice. 19 ■ Westfield continued to fund ASE's litigation. 20 Based on these facts, the Renton Municipal Code, and standing jurisprudence, on 21 February 22, 2007, the Examiner dismissed ASE's appeal of The Landing site plan for lack of 22 standing. A copy of the Examiner's decision is attached hereto as EXHIBIT F (the 23 "Examiner's Landing II Decision"). As the Examiner stated, "The association remains the 24 shell corporation it was in Landing I." Ex. F, Examiner's Landing II Decision, at 4. 25 26 27 2 As Applicant argued in the Landing II proceedings, the December 10, 2006 amended Bylaws were 28 irrelevant for purposes of ASE's Landing 11 appeal, as they were adopted well after the date the appeal was filed. i-IILL15 CLARK MARTIN & Motion to Dismiss Appeals of PETERSoN, P.S. Building Permit Approval - Page 4 of'] 0 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623,1745; fax 206.623,7789 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 C. ASE and Mr. Nicholson Appeal Building Permit Approvals On November 28, 2006, the City of Renton issued a decision approving building permits for Buildings 101 and 102 (the "Building Permit Approval"). Buildings 101 and 102 are located in the southeast quadrant of The Landing project, adjacent to and directly west of Building 100, the proposed Target store. See Ex. A. On December 11, 2006, ASE and Mr. Nicholson filed an appeal of the Building Permit Approval. The appeal provides no new evidence regarding ASE's corporate structure to support ASE's standing. Furthermore, the appeal cites no direct injury in fact arising from the Building Permit Approval; rather, it contains only abstract, general assertions of standing, unrelated to the Building Permit Approval. ASE Appeal, at 2-5. IV. ARGUMENT A. ASE Lacks Associational Standing. 1. The Examiner and the Renton City Council have previously determined that ASE lacks associational standing. In order to appeal an administrative decision, an appellant must have standing. RMC 4-8-110.E.3.b. The Renton Municipal Code limits standing for appeals of administrative determinations to those persons who are aggrieved. Id. In determining whether a party is aggrieved, courts require the appellant to demonstrate an injury in fact, and to show that its allegedly endangered interest is within the "zone of interest" to be protected or regulated. Trepanier v, City of Everett, 64 Wn. App. 380, 382, 824 P.2d 524 (1992). The appellant bears the burden of establishing the elements of standing. See Concerned Olympia Residents for the Environment (C.O.R_E.) v. City of Olympia, 33 Wn. App. 677, 683, 657 P.2d 790 (1983). As an association, ASE has the burden of establishing that it has standing to bring an appeal on behalf of its members. Intl Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). In their review of the Landing I and Landing 11 appeals, the Examiner and the Renton City Council analyzed the evidence to evaluate whether ASE had met its burden to demonstrate associational standing. In both instances, it was determined that ASE had failed HILLIS CLARK MARTIN & Motion to Dismiss Appeals of FETERSON, P.S. Building Permit Approval - Page 5 of 10 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206,623.7789 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to meet its burden. As set forth in the Examiner's and City Council's decisions, despite ASE's attempts to supplement the record with revised Bylaws or purported corporate meeting minutes, the evidence was insufficient to demonstrate that ASE had standing. See Ex. C, Examiner's Landing I Decision, at 8 ("[ASE] is a mere shell created by the applicant's potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed development"); see also Ex. F, Examiner's Landing II Decision, at 5 ("ASE is a sham standing in for a competitor that does not have standing"); see also Ex. D, City Council Decision, at 4 ("ASE lacks associational standing to bring these appeals"). 2. ASE has presented no new evidence to demonstrate associational standing. Despite numerous opportunities, ASE did not present evidence sufficient to meet its burden of proof. Indeed, as of the date ASE filed this appeal, the evidence suggests that very little had changed since ASE's first and second rounds of appeals. ASE had still provided evidence of only one alleged member, Brad Nicholson. ASE still had only one director, a former employee of Buck & Gordon. Based upon the amended Bylaws, dated December 10, 2006, ASE's directors were to "consult" with its members prior to major decisions, but were not required to carry out the direction of the members. See Ex. E, ASE Bylaws, at Section 2.7. The ASE directors could still fire the ASE members at any time, even without prior notice. See Ex. E, ASE Bylaws, at Section 1.5. Finally, ASE was still funded and controlled by Westfield. The Examiner has previously reviewed the facts and found that ASE is a shell group, funded and controlled by an economic competitor solely to thwart the development of The Landing, and that ASE's sole member, Mr. Nicholson, is merely a "straw man" whose interests are not necessarily represented by the association. Ex. C, Examiner's Landing i Decision, at 5, 8. ASE has failed to produce additional credible evidence to establish that its member guides ASE's actions or has control over the organization, or that the organization is acting "on behalf' of the member. Rather, all evidence produced by ASE suggests the HILLIS CLARK MARTIN & Motion to Dismiss Appeals of PETERSON, P.S. Building Permit Approval - Page 6 of 10 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 i 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 opposite — ASE's member has no meaningful control over the association. The member is therefore no different than a mere bystander. As a mere bystander to the appeals, Mr. Nicholson is not being represented by ASE. Therefore, ASE does not have associational standing. The Examiner should once again dismiss ASE's appeals for lack of associational standing. 3. ASE has not met its burden to show injury in fact from the Building Permit Approval. Even if ASE was able to demonstrate that it had associational standing to bring this appeal on behalf of its members, the association also bears the burden of establishing that its member meets the elements of standing. Here, ASE has also failed to demonstrate that its member suffers an injury in fact arising out of the Building Permit Approval. As discussed below, neither ASE nor Mr. Nicholson has presented evidence to demonstrate that Mr. Nicholson has suffered or will suffer a concrete, particularized injury arising out of the Building Permit Approval. By failing to present any evidence of injury in fact to its member, ASE has failed to establish standing. B. Mr. Nicholson Lacks Standing. 1. Mr. Nicholson has not met his burden to show injury in fact arising out of the Building Permit Approval. Standing must be established as to each and every claim. See DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) ("'The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted."). Therefore, it is important to first identify the particular claims in the appeal, and then determine whether the appellant has presented evidence sufficient to establish standing for each of those claims. To establish standing, the appellant bears the burden of demonstrating that he will be specifically and perceptibly harmed by the challenged action of approving the Building Permit; in other words, the appellant must show a "direct stake" in the Building Permit HILLIS CLARK MARTIN & Motion to Dismiss Appeals of PETERSON, P.S. Building Permit Approval - Page 7 of 10 500 Galland Building, 1221 Second Ave Seattle WA 98101-2926 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 to 11 12 13 14 t5 16 17 I$ 19 20 21 22 23 24 25 26 27 28 0 Approval. C. Q.R.E., 33 Wn. App. at 684. The requirement that the appellant demonstrate his "direct stake" in the controversy consequently means that generalized grievances are insufficient to establish standing. See, e.g., Chelan County v. Nykreim, 146 Wn2d 904, 935, 52 P.3d 1 (2002) ("An interest sufficient to support standing to sue, however, must be more than simply the abstract interest of the general public in having others comply with the law'), This is an appeal of the City of Renton's Building Permit Approval for two buildings in The Landing. The building permit stage represents one distinct stage in the City of Renton's permit review process. By the time this stage occurs, the City has already considered the project as a whole, and has issued approvals of the master plan and site plan. Unlike those earlier stages of permit review, which may consider the environmental impacts of the project, or the configuration of the buildings, parking areas, or drive aisles within the site, the City's review of building permit applications is limited to whether the building permit is consistent with the previously approved site plan, and whether it meets the building code requirements of the International Building Code and the Renton Municipal Code. Therefore, in order to establish standing, Mr. Nicholson must demonstrate that he has suffered or will suffer a direct, concrete, particularized injury in fact arising out of the Building Permit Approval. However, Mr. Nicholson fails to assert any injuries arising from the Building Permit Approval. Instead, all of the claimed injuries arise from the previously approved master plays, site plan, or environmental review for The Landing. As discussed below, such collateral attacks upon prior approvals for The Landing are impermissible, and thus insufficient to grant standing. 2. Mr, Nicholson cannot rise this appeal to collaterally attack prior approvals. Washington courts prohibit appellants from using appeals of land use decisions to collaterally challenge prior approvals. See, e.g., Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11, 120 PAd 56 (2005) ("In challenging the grading permit, Habitat Watch actually (and exclusively) challenges the validity of the special use permit and its extensions... Habitat Watch cannot collaterally attack there through its challenge to the grading permit"). The only HILLIS CLARK MARTIN & Motion to .Dismiss Appeals of PETE4t30N, A.S. Building :Permit Approval - Page 8 of ' I 0 500 Gotland Building, 1221 second Ave Seattle WA 98101-2925 206,623.1745;fax 206.623.7789 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approval at issue in this appeal is the Building Permit Approval. Therefore, Mr. Nicholson's appeal of the Building Permit Approval must be limited to the validity of the City's Building Permit Approval. Mr. Nicholson cannot in this appeal collaterally challenge the site plan or master plan approvals, nor can his standing for this appeal be based upon injuries arising out of those previous decisions. Examination of Mr. Nicholson's supposed "injuries" reveals that none of the injuries could possibly arise from the Building Permit Approval. Instead, each of the purported injuries relates back to prior approvals for The Landing, including the master plan and site plan approvals. By attempting to establish standing with claims of injury arising from prior approvals, Mr. Nicholson engages in a collateral attack on the prior City decisions. For example, Mr. Nicholson states that he will suffer injury in fact due to the "increased traffic" and "decreased water quality" arising from the "unanalyzed and unmitigated traffic and stormwater impacts." ASE Appeal at 5. However, these claims of unanalyzed environmental impacts, or alleged flaws in the overall project concepts, do not arise from the Building Permit Approval. Regardless of whether the specific building permits for Buildings 101 and 102 were approved, the traffic and stormwater impacts of the project as a whole were already analyzed and approved by the City — at the environmental review stage, the master plan stage, and the site plan stage. These alleged injuries are therefore unrelated to this appeal, and any assertion of standing on the basis of these claims is inappropriate and insufficient to establish standing for this appeal. Appellants are simply trying to collaterally attack The Landing master plan and site plan. Such a collateral attack is not permitted. Moreover, Appellants do not allege that there should be no buildings at the site of Buildings 101 and 102; rather, their appeal merely relates back to the building setbacks, approved in The Landing site plan.3 Thus, despite resting their standing upon alleged injuries 3 Notably, Appellants previously signed a stipulation acknowledging that their appeals of The Landing site plan would not pertain to and would have no effect upon certain portions of Quadrant C in The Landing. Buildings 101 and 102 are located in Quadrant C. See Stipulation, dated December 11, 2006, attached hereto as EXHIBIT G. The "Vested Developments" include the drive aisle, sidewalks, landscaping, and curbs located between Park Avenue N. and Building 102, and between N. 10th Street and Buildings 101 and 102. HILLIS CLARK MARTIN & Motion to Dismiss Appeals of PETERSON, P.S. Building Permit Approval - Page 9 of'] 0 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 L'M 20 21 22 23 24 25 26 27 28 such as stormwater and traffic impacts, there is no allegation or showing that the stormwater and traffic impacts would be altered with or without the Building Permit Approval. V. CONCLUSION ASE has the burden to demonstrate its associational standing. The Examiner and the Renton City Council have dismissed ASE's prior appeals for lack of associational standing, and ASE has failed to present evidence of any material change in the status of its members. Further, ASE has failed to demonstrate that it has suffered an injury in fact. Because ASE has failed to carry its burden, its appeal must be dismissed. The parties to an appeal must have standing as to each and every claim asserted in their appeal. Mr. Nicholson presents no evidence of particularized harm arising out of the Building Permit Approval, attempting to rely instead upon collateral attacks of the master plan and site plan. Because Mr. Nicholson has not established that he has standing to bring this appeal, his appeal must be dismissed. For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City of Renton's Building Permit Approval should be DISMISSED. DATED this IV' day of April, 2007. 19351000 18449-004 7$%0011,doc 4/17/07 Motion to Dismiss Appeals of Building Permit Approval - Page 10 of 10 HILLIS CLARK MARTIN & PETERSON, P.S. ,Pero5he L. Hillis, WSBA #1704 T. yan Durkan, WSBA 411805 aren D. Breckenridge, WSBA 436666 Attorneys for Applicant Harvest Partners HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Emlsrr EXHIM $ Excerpt of Bylaws for ASE BYLAWS or ALLXANCE FOR SOUTFf END ARTICLE I MEMBERSHIP Section 1.1 Election of Members. The members of the corporation ("Members"} shall consist of individuals, domestic or foreign profit or nonprofit corporations, general or limited partnerships, associations or other entities (each, a "Person") that have each of the following 4ualifi cations, as determined by the board of directors in its sole discretion: (a) The Person will support the purposes of the corporation and will not have a conflict with supporting the purposes of the corporation. (b) The Person has paid dues to the corporation in such amounts and at such times as the board of directors may establish by resolution- (c) The Person has made such applications or entered into such agreements as the board of directors may require. (d) The Person has been elected as a Member by the board of directors at any meeting thereof. Section 1.2 Rights of Members, The rights of the Members shall be exclusively as follows, and none of the Member shall have any other rights whatsoever; (a) The Members shall have voting rights with regard to the question of whether to approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1). (b) The Members shall have voting rights with regard to the question of whether to approve a sale, lease, exchange, or other disposition of all, or substantially all, the property and assets of the corporation not in the ordinary course of business, pursuant to RCW 24.43.215(1). (c) The Members shall have voting rights with regard to the question of whether to approve the voluntary dissolution and winding up of the corporation, putsuaut to RCW 24.43.220(l). 1 of 2 pages saluoA 'Q aaq-mq ua. jzm J.T.: T. T 4f1G1�—qa—a�� 9T/GT,d (d) The Members shall have voting rights with regard to the question of wbetber to approve aplan of distribution, pursuant to RCW 24.03.230(1). Section 1.3 Certificaies of Membership. Certificates of membership in the corporation may be issued. If issued, they shall be numbered, and the respective Members' names shall be entered in the membership register of the corporation as the certificates are issued. Certificates, if any are issued, shall bear the Member's name and shall he signed by the president or the secretary. Section 1.4 Status of Membership. Membership in the, corporation sbail be personal, shallnot survive the death of any individual Member, and may not be transferred by operation of law or by any other means. Section 1.5 Termination of Membership. Membership in the corporation may be terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, (b) or for ;failure to actively support corporate purposes. or to actively participate in corporate activities, or (c) for failure continually to meet the quaUcations of a Member pursuant to Section 1,1 of these Bylaws. Removal skull require the affirmative vote of the board of directors. In the event that any such termination is contemplated, the board of directors shall notify the Member in a record of the reasons for the proposed action, and of the time and place of the meeting of the board ofdirectors at which termination is to be considered, not later than ten (10) days prior thereto. Prior to the meeting, the subject Member shall be entitled submit written responses to the stated reasons for termination. At the option of the Board, the termination may be immediate, without prior notice, but with full past termination appeal proceedings. 2 of 2 pagres J.T.!TT Ql+ifii7—GNP— J7C sa}uod 'R Jaq-MP uaa aVM 9i/91'd GM September 5, 2006 DECISION OF THE HEARING EXAMINER ON MATTERS OF STANDING AND JURISDICTION BROUGHT BY ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND PROGRESSIVE AIXIA.NC>E FOR A SUSTAINABLE SOUTHEND (PASS) While some background may help frame this decision, elaborate details and history need not be provided at this time as the only issues currently are whether the parties have standing to bring challenges of the City's actions and whether the Hearing Examiner has jurisdiction to hear the challenges if the parties do have standing. This matter concerns City decisions regarding The Landing, a land use project proposed for approximately 47 acres in north Renton. The land, in the main, was property used by the Boeing Company for its airplane business and vacated as the company consolidated its operations toward the north and west_ With the potential for the land to be developed or redeveloped the City of Renton conducted an environmental review of proposed changes to its Comprehensive Plan and Zoning Code and potential land use changes for the property. The City issued an Environmental Impact Statement (EIS). The adequacy of the EIS was appealed and after a public hearing on the appeal, the appeal was denied. The appellant in that matter is a member of one of two groups challenging current decisions regarding the current proposal. Subsequently, Boeing sold off some of the acreage and a developer offered a development plan. The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. That ordinance designated as Planned Actions uses and activities described in the FEIS and subject to mitigation measures that had been separately proposed as part of a Development Agreement originally agreed to by Boeing and the City. That ordinance further allowed changes to that or other proposals that fell within the scope and character of the original plan. The original developer abandoned their original plans and the property changed hands to the current applicaxrt. New plans were submitted and found by the Director of Development Services (Director) to be in conformance with the original Planned Action, The proposal was approved as a Planned Action and the Master Site Plan was approved. These actions by the director apparently removed any need for subsequent public hearings or environmental analysis of the new proposal. An appeal of the City's proposed infrastructure improvements in the area where the subject proposal would be developed had been initially filed but was withdrawn. Two separate citizen groups filed appeals of the City's action or actions, No individual filed an appeal on his or, her own behalf. The City and the underlying applicant, Hai -vest Partners (Applicant), challenged the standing of the two groups that brought the appeals. At a Pre -hearing Conference the issue of standing as well as the Examiner's jurisdiction to hear the appeals were defined as issues to be resolved prior to any public hearing on the merits of the appeal or appeals. The various parties submitted motions and responses and oral argument was heard on the motions. ExH1BiT 9Z/Fo'd Sa1UOA 'Q JQOJ'eA UaJJSM TT•TT ❑rAM7_QM—JMC Hearing Examiner Decision September S, 2006 Page 2 The parties to the procccding are the City, the applicant and the two citizen groups, Standing to Bring the Appeals: The Hearing Examiner Ordinaxxce in part provides the following language on appeals: RMC 4-8-110(.E)(3) E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL DETERMIh1ATTONS: (Arad, Ord, 4827, 1-24-2000) 1. Applicability and Authority a. Administrative Determinations: Any administrative decisions made may be appealed to the Hearing Examiner, in writing, with the Hearing Examiner, Examiner's secretary or City Clerk, (Ord.. 4521, 6-5-1995) b. Enviromnental Determinations: Except for permits and variances issued pursuant to RMC 4-3-090, Shoreline Master Program. Regulations, when any proposal or action is grant4 conditioned, or denied on the basis of SEPA by a non -elected official, the decision shall be appealable to the Hearing Examiner under the provisions of this Section. C. Authority: To that end, the Examiner shall have all of the powers of the office from whom tbe, appeal is taken insofar as the decision on the particular issue is concerned_ 2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005) 3. Standing: a. Standing for Filing Appeals of the City's Environmental Determinations: Appeals from environmental determinations as set forth in subsection El b of this Section or RMC 4-9-07ON may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. Any agency or person may appeal the City's compliance with chapter 197-11 WAC for issuance of a Tbreshold Determination. A person is aggrieved when all of the following conditions are met: The decision is prejudiced or is likely to prejudice that person; the person's asserted interests are among those that are required to be considered by the City when it made its decision; and a decision in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the decision; and prejudice means injury in fact. (Ord. 3891, 2-25-1985; Ord, 5153, 9-26-2005) b. Standing for Appeals of Administrative Determinations other than Environmental: Appeals from administrative determinations of the City's land use regulation codes and from environmental determinations required by the Renton environmental review regulations may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. (Ord, 3454, 7-28-1980) C. Special Standing Requirements for Appeals of Administrative Determinations Relative to the Tree Cutting and Land Clearing Regulations: 911TA'r� SGIL 604 7 Jaajea UaJJ M TT - TT ofJlfi7-4fil-J7C Hearing Examiner Decision September 5, 2006 Page 3 Any individual or party of record who is adversely affected by such a decision may appeal the decision to the City's Hearing Examiner pursuant to the procedures established in this Section_ (Ord. 4351, 5-4-1992) d. Special Standing Requirements for Appeals of Decisions Relating to Master Site Plans: Any appellant must be seeking to protect an interest that is arguably within the zone of interest to be protected or regulated by this Title must allege an injury in fact, and that injury must be real and present rather than speculative, (Ord. 4551, 9-18-1995) One citizen group is identified as the "Alliance for South End" (hereiw&er, ASE). They challenged two actions: The Director's decision designating "The Landing" as a planned action; The Director's decision approving the Master Plan for "The Landing." The only member of A.SE identified was Brad Nicholson. He lives northeast of the project area. He drives tb.rough the area where the project is proposed. He also uses the nearby Coulon Park. He has identified traffic as an issue that would alTect him. He also identified impacts to the water quality of Lake Washington as an issue that concerns him. He also identifies himself as someone who might shop, work or live in the area that would be developed if The Landing were approved. It was Ms. Nicholson, as an individual, who challenged the original EIS prepared for the City's Compreherssive Plan amendments and Zoning Code amendments. The second group is identified as "Progressive Alliance for a Sustainable Southend" (hereinafter, PASS). This second group appealed three actions: The Director's decision on the Master Site Plan The Planned Action decision on the roadwork and utility improvements The Planned Action decision on "The Landing." Two PASS members specifically identified arc Patrick Kik and Sheila Pratt. Mr. Kik is a member of United Food and Construction Workers Local 21, which is a member of PASS. He lives at 530 Burnett Avenue North in Renton, Washington, a few blocks south of the proposed development. He has resided there since May 1997. He maintained that he wanted to be involved in the review process. He noted traffic and construction would affect him. Ms Pratt, according to her signed Declaration, lives at 300 Vermont (sic: Most likely Vuemont) Place Northeast in Renton, Washington, also a few blocks from the proposed development. She wants to be involved because anything that occurs on that site would affect her due to her proximity to the proposed development. Traffic was identified as vile area that concerns and would affect her. Her use of Coulon Memorial Park would be affected by more risers, parking dynamics and pollution to Lake Washington adjacent to the park. 9T/vo'd sa-�uod T JagJeg uaJ'Fem FT !TT C;n07—C*—aq1'- Hearing Examiner Decision September 5, 2006 Page 4 Since neither appeal was filed by any of the named individuals, the associations or groups they belong to can only have standing if some member of the association would have standing. Intl Ass'a of Firefighters, Local 1789 Y. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). The first group to be considered would be ASE, the group in which Mr. Nicholson is a member, The attorney representing ASE also represents Westfield, WEA Southcenter LLC, a business which owns and operates a large shopping center, Southcenter, located in Tukwila, Washington, a few miles southwest of the current proposal's location. The business, the attorney admitted is involved in providing at least some funding for this litigation and is on record (press releases and announcements - citations ornitted) as opposing this development Both the City and applicant challenged the standing of ASE based on the association of Westfield with this litigation and its funding. They challenged ASE as a shell corporation intending to directly impede the subject proposal by indirect means that Westfield could not do directly. Westfield, as an economic competitor has no standing to bring an appeal. Evidence presented at the hearing was the membership application of Mr. Nicholson and the bylaws of ASE. The membership application contains the following footer text: "C:IDOCUMENTS AND SETTING/PETER/MY DOCUMENTS/DATA/DOCfWESTFIELD/NON PROFIT MEMBERSHIP FORM.DOC" (Exhibit A, Membership Application - Alliance for South End that Mr. Nicholson submitted for membership in ASE) The Bylaws of ASE provide the voting rights of members of ASE: Section 1.2 Rights of Members. The rights of the Members shall be exclusively as follows, and none of the Member (sic) shall have any other rights whatsoever: (a) The Members shall have voting rights with regard to the question of whether to approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1). (b) The Members shall have voting rights with regard to the question of whether to approve a sale, lease, exchange, or other disposition of all, or substantially all, the property and assets of the corporation not in the ordinary course of business, Pursuant to RCW 24.03.215(1). (c) The Members shall have voting rights with regard to the question of whether to approve the voluntary dissolution and winding up of the corporation, pursuant to RCW 24.03.220(1). (d) The Members shall have voting rights with regard to the question of whether to approve a plan of distribution, pursuant to RCW 24.03.230(l ). (Exhibit B) At the hearing this office in trying to understand the relationship of ASE's members and specifically Mr. Nicholson's relationship to the litigation and also guided the litigation asked: "Who is driving the car?" 9Z/S9' d sa uo� S ,saq, g uaJJVM ZT : Ti Hearing Examiner Decision September 5, 2006 Page 5 Staying with the "who is driving the car" analogy: Mr. Nicholson has no official say in the course or direction that this Itigation will take. He cmuiot steer the litigation with any vote he can take. ASE's attorney noted Mr. Nicholson has a say in the litigation. It is easy to say that he can provide input but there is nothing he can do to control where it goes. He has no vote in the organization that controls or governs or even gently directs the appeal. ASE merely uses his "stature" as an af-ected person to give it standing. Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice. The other members could outnumber and outvote him. Except, clearly, those others cannot out vote him since none of them has a vote. Steering ahead with this "who is driving" analogy, one has to deternune what is being driven. Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they have a say. On a public bus they do not. In some cases they can get off (bus) and at other times, they are on for the ride until it reaches a predetermined destination (airplane). With a bus, the conveyance may still be driven but no one is onboard any longer. A, bus goes to the last stop even if there is no longer anyone on board. The course of the bus was clear from the start and that's where the bus goes. Can this litigation continue if there are no riders? ASE only has standing while there are members and while there are members with standing, that is, persons with the potential to be injured if they don't get a reasonable resolution of their appeal. Which itself brings up an interesting point - what if the membership dissolves, that is fades away, without dissolving ASE officially? Does ASE have any standing if there were no members any longer even if they or he did exist when the appeal was filed? The appellants labeled Mr_ Nicholson a "poster child" (ASE's response to applicant's motions to dismiss for lack of standing, Page 1) for the type of person within the zone of interest of SEPA. He could actually be a "poster child" of a "straw man" for an organization which has no meaningful substance. The definition of a "straw man" is: A third party used in some transactions as a temporwy transferee to allow the principal parties to accomplish something that is otherwise impermissible." (Slack's Law Dictionary, Seventh Edition) We have a litigant or litigants, if one accepts that there are other members of ASE (although there was no proof of their existence or their individual attributes of standing), who have no control of the litigation. The Bylaws of ASE specifically limit the participation, at least, in any voting that might control or influence the actions of the corporation, An interesting side note is that variously ASE's Attorney noted that: (1) there were "no members" in its initial filing with the Secretary of States (2) then in pleadings indicated that was a mistake and it should have said "no voting members"; (3) but the 9T190'd S@-}Uo-j 'R Jagj%-q uajjZM VT -TT grnr�7_ar _max Hearing Examiner Decision September 5, 2006 Page 6 bylaws provide a vote. Although as seen above, the vote is very limited and provides no control of this litigation. A series of mistakes was identified by the parties in some of the various filings in this matter. They do cast a bit of a shadow over some of the evidence, So as noted above, if there are a number of other members of ASE, Mr. Nicholson would not necessarily get to call the shots or "drive" the bus or steer the litigation_ But there is no evidence that even a real majority of ASE's members can do anything to control the course of this appeal. The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the members any right to control the appeal. Since ASE filed an appeal and its attorney continues to make appearances one has to presume someone or some entity, somewhere is in charge, calls the shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no vote on litigation matters nor do any of ASE's "members." That footer shown above could be somewhat telling in determining who is directing the litigation on behalf of ASE. Mr, Nicholson's Membership Application has a footer that identifies, presumably, that document's computer storage origins, The footer line contains the following text: "C:IDOCUMENTS AND SETTINGIP'ETER/MY DOCU MENTSIDATA/DOCIWES TFIELD/NON PROFITINMNIBERSEV FOR.M.DOC" That footer Iine would seem to indicate that Westfield's legal business and the ASE association's litigation might be handled or originate together. It would merge the potential interests of the two. .Again, recall that Westfield is a competitor of the underlying applicant for the land use decisions being challenged. Or the "footer" could be Just one more mistake in the way this matter was handled by Westfield's and ASE's attorney. It might have been a mistake in how the document was initially created in whatever word processing software was used. But ASE's attorneys have been frank. There have been no real attempts to hide the fact that Westfield employs them and actually pays some of the bills for ASE. But this blending, merging or blurring of the Iines of control all lead to the inevitable question of who controls the litigation and whose interest is being served by the litigation. The conclusion would appear to be inescapable - Westfield is paying some of the bills and no one else, neither Mr. Nicholson nor any other individual or majority of ASE has been identified as being a principle litigant who can direct the litigation of this appeal. So even if this office were to acknowledge that Mr. Nicholson might have standing under this office's normal inclination to liberally grant standing to an individual who can show some interest in a matter, Mr. Nicholson did not file the appeal in his own right. Sticking with our transportation analogy just a bit longer — Mr. Nicholson hitched his cart to the wrong horse and now has no control or say in this litigation. Mr. Nicholson has no ability to do much in his "non -voting" capacity as a mere member. But Mr. Nicholson is not alone (if there are other members of ASE) as no member of ASE or the combinod membership of ASE can do anything with this litigation. It may be unfortunate to preclude lV):r. Nicholson's right to have his standing ascertained or appeal heard but he tied his rights, if any, to an association that granted him no rights to direct litigation. He chose that course rather than file an appeal in his own right. 9TILO 'd saZu0_1 2 aagjeg uaajvm CT tTT. 4G1fil?-vr�-��C Hearing Examiner Decision September 5, 2006 Page 7 While one, generally "pierces the corporate veil' to get at underlying persons or assets, it is generally done so that justice can prevail, Discard the corporate veil in this case and what we find is a competitor, Westfield Corporation. They own the nearby Southcenter Shopping Center. They appear to be paying a good portion of the litigation, employ the attorney who is representing ASE and may have control over the litigation. Although, this office finds no evidence that Westfield controls the litigation, this office finds that no one really seems to control ASE and the attorneys in this matter. ASE, again, has no voting members controlling the appeal. The bylaws provide the ASE membership with a limited range of power and none that go to the heart of who controls this litigation. In SODER13ERG ADV. v. KENT MOORS CORP_ l I Wn, App. 721, 734,524 P.2d 1355 (1974) the court found: " The court could conclude from the evidence here and reasonable inferences therefrom that KM used its undue domination and control, through KM personnel with a primary loyalty to KM, to obtain and then avoid payment for essential services from which KM expected to receive great benefit. The domination was so complete that "the controlled corporation [had], so to speak, no separate mind, Will or existence of its own and [was] but a business conduit for its principal." 1 W. Fletcher, Private Corporations § 43, at 205 (perm. ed. rev. 1963). In Seattle Ass'n of Credit Men v. Daniels, 15 Wn.2d 393, 396,130 P.2d 892 (1942), the court in discussing the doctrine of disregard quoted the following with approval from Pittsburgh Reflector Co. v. Dwyer & Rhodes Co., 1, 73 Wash. 552, 555, 23 P.2d 1114 (1933): "In order to justify the judicial disregard of corporate identities, one, at least, of two things must clearly appear. Either the doininant corporation must control and use the other as a mere tool or instniment in Carrying out its own plans and purposes so that justice requires that it be held liable for the results, or there must be such a confusion of identities and acts as to work a fraud upon third persons." Even if both things must be shown as suggested in Sommer v. Yakima Motor Coach Co., 174 Wash. 638, 26 P.2d 92 (1933) (decided prior to Seattle Assn of Credit Men v. Daniels, supra), the court could and dial conclude from the evidence that both things had been proved. Footnote 1, supra. See J.I. Case Credit Corp. v. Stark, supra at 475. See also Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala, 23,29 So. 2d 298 (1947); Linco Servs., Inc. v. DuPont, 239 Cal. App. 2d 841, 49 Cal_ Rptr. 196 (1966); Dillard & Coffin Co, v. Richmond Cotton Oil Co_, 140 Tenn. 290, 204 S.W. 758 (1918). KM in good conscience can scarcely complain if the trial court determined that to recognize the separate entity of PK under the peculiar circumstances here would in effect place the court in the untenable position of assisting in the accomplishment of a breach of duty owing to plaintiff." As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization without standing have found that no individual member had sufficient standing on their own right, Or the claims made on behalf of the association were too personal to the members and could not be 9T80'd sal-uaa it Jaq.reR Ua JJVM i?T • TT Hearing Examiner Decision September 5, 2006 Page 8 attached to an association_ But those cases that found a lack of standing can still be elucidating. Here we have an organization, in which no member can call the shots_ See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 866-67, 576 P.2d 401 (1978); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed-2d 351 (1992). International Assn of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186 (2002); Des Moines Marina Assn v. City of Des Moines, 124 Wn. App. 282, TMIBERLANE v. BRAM.E 309 79 Wn. App. 303,901 P.2d 1074. This office finds that ASE does not have standing. It is a mere shell created by the applicant's potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed development. This brings us to the standing of PASS. Since the underlying nature of the association was never challenged nor evidence produced to make it suspect as to its aims, it would appear that PASS has members who individually could have standing and as such, PASS has standing to bring its appeal or appeals. The two identified members both live close to the proposed project. They could be affected by the traffic generated bythe proposed development. They could be affected by the construction of the project itself. One of them uses a park that could further be affected by additional residents that would occupy proposed residences. Those interests appear- to be within the zone of interests the appeal provisions were intended to protect. The increased traffic could slow down their respective commutes, increase roadway congestion and possibly lead to increased risk of accidents. They could suffer injury in fact. It will be up to the appellants to prove their case to prevail in obtaining the remedy they seek but they have the right to present a case for review. Jurisdiction to Hearing the Appeal: Repeating again for clarity, the Hearing Examiner Ordinance in part provides the following language on appeals: RMC 4-8-110(E)(3) E APPEALS TO EXAMINED OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000) 1. Applicability and Authority: a. Administrative Determinations: Any administrative decisions made maybe appealed to the Hearing Examiner, in writing, with the Hearing Examiner, Examiner`s secretary or City Clerk. (Ord. 4521, 6-5-1995) b. Environmental Determinations: Except for permits and variances issued purstiant to RMC 4-3-090, Shoreline Master Program Regulations, when any proposal or action is granted, conditioned, or denied on the basis of SEPA by a non -elected official, the decision shall be appealable to the Hearing Examiner under the provisions of this Section. 9 G/60'd salluc_� 'R aaqJelq uau..rPM CT • r T ❑r�ra�_ea_��c Fearing Examiner Decision September 5, 2006 Page 9 C. Authority: To that end, the Examiner shall have all of the powers of the office from whom the appeal is taken insofar as the decision on the particular issue is concerned. 2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005) 3. Standing: a Standing for Filing Appeals of the City's Enviromnenml Determinations: Appeals from environmental determinations as set fortiz in subsection E I b of this Section or RMC 4-9-07ON may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. Any agency or person may appeal the City's compliance with chapter 197-11 WAC for issuance of a Threshold Dctm7nination. A person is aggrieved when all of the following conditions are met: The decision is prejudiced or is likely to prejudice that person; the person's asserted interests are among those that are required to be considered by the City when it made its decision; and a decision in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the decision; and prejudice means injury in fact. (Ord. 3891, 2-25-1.985; Ord. 5153, 9-25-2005) b. Standing for Appeals of Administrative Determinations other than Enviromnental: Appeals from administrative determinations of the City's land use regulation codes and from environmental determinations required by the Renton environmental review regulations may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. (Ord. 3454, 7-28-1980) C. Special Standing Requirements for Appeals of AdmUstrative Detenn.inations Relative to the Tree Cutting and Land Clearing Regulations: Any individual or party of record who is adversely affected by such a decision may appeal the decision to the City's Hearing Examiner pursuant to the procedures established in this Section. (Ord. 4351, 5-4-1992) d. Special Standing Requirements for Appeals of Decisions Relating to Master Site Plans: Any appellant must be seeking to protect an interest that is arguably within the zone of interest to be protected or regulated by this Title must allege an injury in fact, and that injury must be real and present rather than speculative, (Ord. 4551, 9-18-1995) it appears on the face of the appeal that the action or actions claalIenged were those of the Director. Those appear to be the type of decisions that fall within the jurisdiction of the Hearing Examiner. The appeal of PASS may proceed with the following guidance: The party may not challenge the underlying ordinance (Ordinance 5107) since this office cannot review decisions of the City Council. The planned Action and Master Plan decisions of the Director can be challenged. sa�uad T aagjt�g uajr MM c;Z : Z Z gag-9GS-ri�� 9T/OT'd Hearing Examiner Decision September 5, 2006 Pave 10 Decision: The appeal of ASE is dismissed, as they have no standing. The appeal of PASS may proceed to arguments on the merits. ORDERED THIS 5'' day of September 2006. FRED J. KA BEARING EXAMIIqER TRANSMI ED THIS 5'a day of September 2006 to the parties of record: Zanetta Fontes Peter Buck Jerome L. Hillis Warren Barber & Fontes, P.S. Buck & Gordon LLP Hillis CIark Martin & Peterson, P.S. PO Box 626 2025 First Ave, Suite 500 500 Galiand Building Renton, WA 98057 Seattle, WA 98121 1221 Second Avenue Seattle, WA 98101 Claudia lid. Newman Brad Nicholson King County Journal Newspaper Bricklin Newman Dold LLP 2811 Dayton Avenue Attn: Dean Radford 1001 Fourth Ave., Ste. 3303 Retaton, WA 98056 600 Washington Ave S Seattle, WA 98154 Kent, WA 98032 Renton Reporter Attn: Oscar Halpert PO Box 130 Kent, WA 98032 TRANSMITTED THIS 5-' day of September 2006 to the following: Mayor Kathy Keolker Jay Covington, CAO Julia Medzegian, Council Liaison Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services King County Journal Stan Engler, Fire Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services 9T/Tj.d saluo-4 R Jagjea ua..jvm ❑T.iT or-An7-On--=)' • Hearing Examiner Decision September 5, 2006 Page 11 Pursuant to Title TV, Chapter 8, Section I OOGof the City's Code, re nest for reconsideration must be filed in writing on or before 5:00 n.nL. September 1.9, 2006. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourtoen (14) days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take further action as he deems proper. An appeal to the City Council is govemed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, fist floor of City Hall. An anneal musfbe filed in writing on or before 5:00 p.m.. September 19, 2006. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants -will be re-quired prior to approval by City Council or final processing of the file. You may contact this ofSce for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-onc) communications may occur concerning pepdizrg land use decisions. This means that parties to a land use decision may not communicate in private with any decision -maker concerning the proposal. Decision -makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. 9T/ZT •d saq.uod '3 aagjsg uaj-MM 9T : TT gPIR7.—qA—rf:IC, STATE OF WASHINGTON, COUNTY OF KING } AFFIDAVIT OF PUBLICATION PUBLIC NOTICE Jody L. Barton, being first duly sworn on oath that she is the Legal Advertising Representative of the Renton Reporter a bi-weekly newspaper, which newspaper is a legal newspaper of general circulation and is now and has been for more than six months prior to the date of publication hereinafter referred to, published in the English language continuously as a bi-weekly newspaper in King County, Washington. The Renton Reporter has been approved as a Legal Newspaper by order of the Superior Court of the State of Washington for King County. The notice in the exact form annexed was published in regular issues of the Renton Reporter (and not in supplement form) which was regularly distributed to its subscribers during the below stated period. The annexed notice, a: Public Notice was published on April 14, 2007_ The full amount of the fee charged for said foregoing publication is the sum of $142.80. y acton t L-egal Advertising Representative, Renton Reporter Subscribed and sworn to me this 16t' day of April, 2007. s f E t ; o : . L�`� L 9 B D Cantelon� ]VOTARY = CD • 4 Notary Public for the State of Washington, Residi Kent, ngtQ P. O. Number: :7�k': 0 Qt12 . . NOTICE OF APPEAL HEARING RENTON HEARING EXAI4IINER RENTON, WX9141NGTON A Public Hearing will be held by the Renton Hearing Examiner in the Council Chambers on the seventh floor of Renton City hall, 1055 South Grady Way, Renton, Washington, on April 24, 2007 at 9:00 AM to consider the following petitions: The Landing Building Permits B060M9 & 11060540 AppeaL.s LUA07-031, AAD & LUA07-037, A.AD Location: 1002 Park Avenue N. Description: Appeal of Building Permit B0606M, Building 200 of The Landing, which is a IS,100 square foot one-stnry building located south of N 10th Street between Logan Avenue N and Park Avenue N. The appeal contends that the building permit was issued erroneously as it is based on a Hawed Master Site Plan approval and subsequent Site Plan approval. Appeal of Building Permit B060540 for Buildings 101 and 102 at the Landing. Building 101 is a 20,400 square foot one-story building and Building 102 is a 21,000 square foot one-swry building. The buildings are attached and are located northeast of the intersection of Park Avenue N and N Sth Street-. The appellant contends that the building permit was issued erroneously as the approval was based on a flawed Master Site Plan approval and subsequent Site Plan approval. The hearing on April 24, 2007; is set for the attorneys to agree on the ground rules for briefing, and motions and setting dates for oral argument on the motions. NO TESTIAIONY will 1w txkeii at this healing. If the hearing on t:lie trending action cannot be completed on the dots sc t in the public notice, the meeting or hearing may be continued to a date certain and no further notice is required. All interested persons are invited to bepresent at the Public Hearing. The file may be reviewed in the office of the Bearing Examiner an the seventh floor of Renton City Ball. His number is: 425-430-6515. Published in the Renton Reporter April 14, 200 7. 9863224 PLANNING AND DEVELOPMENT COMMITTEE COMMITTEE REPORT March 12, 2007 Appeal by Alliance for South End (ASE) File No. LUA-05-136, SA -A, SM .`i. rjy Date J-/17.2067 1)Director's administrative decision designating the Landing Master Plan Application a Planned Action; and 2) the Director's Master Site Plan Approval. j Referred to P&D Committee on October 2, 2006 1 This appeal came before the Planning and Development Committee (the "Committee") on February 15, 2007. The Committee reviewed the decision of the Hearing Examiner dated September 5, 2006, which dismissed for lack of standing the ASE appeals from. 1) the Director's designation of the Landing Master Plan application as a Planned Action; and 2) the Director's Master Site Plan approval. The Committee reviewed the file, including the briefs therein, and heard argument from the attorneys representing the various parties. Finding no substantial- error in fact or law, the Committee recommends that the Council affirm the decision of the Hearing Examiner. The Committee further recommends that the Council adopt the attached Findings and Conclusions affirming the Examiner's Decision. J Terri Briere, Qhair Dan Clawson, Vice Chair �Q�, Marcie Palmer, Member cc: Neil Watts Jennifer Henning Lawrence J. Warren RIcY 1°rc�5t�. Fred Kau fm4p, EXHIBIT D F.� FINDINGS 1. On May 12, 2006, the City of Renton Development Services Division issued a decision designating Harvest Partners' application for Administrative Master Plan approval as a Planned Action ("Planned Action Decision").' The project known as The Landing involves a mixed -use development proposal including retail, office, entertainment, restaurant, hotel and/or residential uses with associated parking on former industrial property located south of Lake Washington. 2. On May 19, 2006, the City of Renton Department of Planning, Building and Public Works issued a decision approving the Master Site Plan for The Landing ("Master Plan Approval ,).2 3. On May 19, 2006, attorney Peter Buck filed Articles of Incorporation and an Application to form a Nonprofit Corporation with the Washington Secretary of State to form a new corporation he called "Alliance for South End" ("ASE"). The Application states that ASE's Registered Agent is Peter Buck, the sole Director is Peter Buck, and the sole incorporator is Peter Buck.3 4. On May 25, 2006, Mr. Buck filed an appeal of the Planned Action Decision on behalf of ASE. In the appeal statement, Mr. Buck states that his law firm represents WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall, Westfield Southcenter. He further states that Westfield is contributing funds for the appeal." Westfield diet not deny that it was behind the appeals to protect its ecorromic interests.5 News articles suggest Westfield's parent company and related entities have employed similar tactics around the world. On May 30, 2006, ASE filed Articles of Amendment with the Secretary of State. The Articles of Amendment state that qualification for membership in ASE "shall be set out in the corporation's bylaws." 7 The Articles of Amendment also state: "There are no 1 See Planned Action Decision, attached as Exhibit A to Appeal Statement, May 25, 2006. 2 See Master Plan Approval, attached as Exhibit A to Master Plan Appeal, June 1, 2006. 3 See Exhibit A to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing, June 28, 2006. 'See Appeal Statement, May 25, 2006, at 2. 5 Katy Dickey, a Westfield spokeswoman, stated. "Just as it's Westfiield's responsibility to pursue and attract retail demand and enhance our assets, we have an obligation to our retailers, our shareholders and our customers to protect them or defend them. We wouldn't be doing our jobs if we were not constantly monitoring the market and assessing potential opportunities as well as potential threats_" Craig Harris, Mall Owner Battles Renton Plan, SEATTLE POST INTELLIGENCER, July 14, 2006, attached as ExHIBIT I to Declaration of Karen Therese, attached as EXHIBIT A to Applicant's Reply Memorandum to ASE Response on Motion to Dismiss ASE Appeals for Lack of Standing, July 24, 2006. 6 See Exhibit D to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing, June 28, 2006. See Exhibit B to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing, June 28, 2006. r members as of this date." Mr. Buck signed this document, dated May 25, 2006, as the Director and President. 6. On June 1, 2006, Mr. Buck filed an appeal of the Master Plan Approval on behalf of ASE. In this appeal, Mr. Buck again states that his law firm represents Westfield, and that Westfield is contributing funds for the appeal.$ 7. Under the Renton Municipal Code, an appellant must have standing to file an appeal.9 Applicant Harvest Partners and the City filed motions to dismiss the ASE appeals for lack of standing. 8. In response to the motions, ASE presented evidence of one "member," Brad Nicholson.10 The evidence included a "Membership Application" signed by Mr. Nicholson, and an unsworn declaration from ASE's "Director," Margaret Potter." Margaret Potter is a former employee of Buck & Gordon, the law firm representing Westfield.12 Regarding the statement to the Office of the Secretary of State that ASE had no members, ASE stated this was a "scrivener's error," and that the filing instead should have said "There are no members with voting rights as of this date."13 The ASE Response did not include ASE's Bylaws or any other corporate records regarding membership in ASE. 9. On the eve of the hearing before the Hearing Examiner regarding ASE's standing, ASE filed additional documents with the parties and the Examiner. These documents included a sworn declaration from Mr. Buck, appended to which was an unsigned, undated "excerpt" from the ASE Bylaws regarding membership in ASE.14 According to Section 1.2 of the Bylaws excerpt, the members are only given certain limited voting rights, and "none of the Member (sic) shall have any other rights whatsoever."15 10.On August 22, 2006, the parties presented oral arguments on standing and other jurisdictional issues to the Hearing Examiner. 11. On September 5, 2006, the Hearing Examiner issued its decision dismissing the ASE appeals. According to the decision, "This office finds that ASE does not have standing. It is a mere shell created by the applicant's potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed development." 16 8 See Master Plan Appeal, June 1, 2006. 'See RMC 4-9-200.N; RMC 4-8-110.E.d. '('See Appellant Alliance for South End's Response to Applicant's Motions to Dismiss for Lack of Standing, July 18, 2006. 11 See Declaration of Margaret E, Potter, attached to Appellant AIliance for South End's Response to Applicant's Motions to Dismiss for Lack of Standing, July 18, 2006. 12 See Applicant's Reply Memorandum to ASE Response on Motion to Dismiss ASE Appeals for Lack of Standing, July 24, 2006, 13 Id, at 14, 14 See Declaration of Peter L. Buck, August 18, 2006, at Exhibit A. 1s Id. 16 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction brought by Attorneys for Alliance for South End and Progressive Alliance for a Sustainable Southend, September 5, 2006, at 8. CONCLUSIONS From these Findings, the Committee adopts the following Conclusions. 1. The appellant bears the burden of establishing that it has standing,17 ASE, as the appellant, has the burden of proof. 2. Standing is jurisdictional. 3. As an association, ASE has the burden of establishing that it has standing to bring these appeals on behalf of members with standing, or that it has standing on its own behalf. 4. ASE has never asserted that it has standing on its own behalf Therefore, ASE has the burden to demonstrate it has standing to bring suit on behalf of its members. 5. Standing should exist as of the time the appeals are filed. t$ Developments that occur following commencement of an action should not be the basis for standing. '9 In this case, there was not only insufficient evidence of standing at the time the appeals were filed, but also at the close of the record. 6. It is no small matter for an organization to assert the right to sue on behalf of others. Courts have found that such a right requires the representational relationship to be a strong one, in order to ensure the fidelity of the organization to those for whom it claims to speak."' 7. ASE's Articles of Incorporation provide evidence that there were no members at the time the appeal was filed. ASE claims this was scrivener's error. Even assuming ASE's view of the evidence, ASE offered evidence of only one member, Mr. Nicholson, who could not vote and who had no input over the ASE Board, officers, Bylaws, Articles of Incorporation, or litigation. The member was therefore no different than a mere bystander. Thus, even if ASE had a member at the time the appeals were filed, ASE has failed to produce credible evidence to establish that its member guides ASE's actions or has control over the organization, or that the organization is acting "on behalf' of the member. Rather, all evidence produced by ASE, including the excerpts from the ASE Bylaws, suggests the opposite — ASE's member has no meaningful control over the association. 8. ASE is merely a shell corporation, established solely to delay the development of an economic competitor. ASE lacks associational standing to bring these appeals. 17 See Concerned Olympia Residents for the Environment v. City of Olympia, 33 Wn. App. 677, 683, 657 P.2d 790 (1983). 18 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n. 5 (1992) ("[S]tanding is to be determined as of the commencement of the suit"). Appellants must have standing to file an appeal. RMC 4-9-200.N; RMC 4-8-110.E.d. 19 See, e.g, Perry v. Village ofArlington Heights, 186 F.3d 826, 830 (1999) ("It is not enough for [a parry] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be satisfied from the outset..."). 20 Friends of Tilden Park v. District of Columbia, 806 A.2d 1201, 1209 (D.C. 2002). AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: December 10, 2006 SEA 1918819v2 50665-1 p EXHIBITr Seattle TABLE OF CONTENTS Page ARTICLEI Membership................................................................................................................ I Section 1.1 Qualifications.............................................................................. Section1.2 Rights of Members.................................................................................................. 1 Section 1.3 Certificates of Membership..................................................................................... 2 Section 1.4 Status of Membership.............................................................................................. 2 Section 1.5 Termination of Membership.................................................................................... 2 ARTICLE 2 Meetings of Members................................................................................................. 2 Section2.1 Annual Meetings..................................................................................................... 2 Section 2.2 Special Meetings..................................................................................................... 2 Section2.3 Notice of Meetings.................................................................................................. 3 Section2.4 Quorum.................................................................................................................... 4 Section2.5 Voting...................................................................................................................... 4 Section 2.6 Meetings Held by Telephone or Similar Communications Equipment .................. 4 Section 2.7 Consultation with Members Regarding Major Decisions ....................................... 4 ARTICLE3 Board of Directors...................................................................................................... 4 Section 3.1 Powers and Qualifications....................................................................................... 4 Section3.2 Number and Term................................................................................................... 4 Section3.3 Committees..............................................................................................................4 Section3.4 Election.................................................................................................................... 5 Section3.5 Removal........................................................................................... .... 5 Section3.6 Vacancies................................................................................................................ 5 ARTICLE 4 Meetings of Board of Directors.................................................................................. 5 Section4.1 Annual Meeting....................................................................................................... 5 Section4.2 Special Meetings.....................................................................................................5 Section 4.3 Notice of Meetings.................................................................................................. 5 Section4.4 Quorum.................................................................................................................... 6 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment .................. 7 ARTICLE 5 Actions by Written Consent....................................................................................... 7 ARTICLE 6 Waiver of Notice....................................................................................................... 7 ARTICLE7 Officers............................................................................................................ --- 7 Section 7.1 Officers Enumerated.............................................................................•-................ 7 Section7.2 President.................................................................................................................. 7 Section7.3 Vice President......................................................................................................... 8 Section7.4 Secretary.................................................................................................................. 8 Section7.5 Treasurer.................................................................................................................. 8 Section7.6 Vacancies................................................................................................................ 8 Section7.7 Salaries......................................................................................................•----......... 8 Section7.8 Removal.................................................................................................................. 8 SEA 1918819v2 50655-10 Seattl e ARTICLE 8 Administrative and Financial Provisions................................................................... 8 Section8.1 Fiscal Year............................................................................................................... 8 Section8.2 Loans Prohibited..................................................................................................... 8 Section8.3 Corporate Seal........................................................................................................ 8 Section8.4 Books and Records.................................................................................................. 8 Section 8.5 Amendment of Articles of Incorporation................................................................ 9 Section 8.6 Amendment of Bylaws............................................................................................ 9 Section 8.7 Rules of Procedure.................................................................................................. 9 ii SEA 191881M 50665-10 Seattle AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 MEMBERSHIP Section 1.1 Qualifications. The members of the corporation ("Members") shall consist of individuals, domestic or foreign profit or nonprofit corporations, general or limited partnerships, associations or other entities (each, a "Person") that have each of the following qualifications, as determined by the board of directors in its sole discretion: (a) The Person will support the purposes of the corporation and will not have a conflict with supporting the purposes of the corporation. (b) The Person has paid dues to the corporation in such amounts, if any, and at such times as the board of directors may establish by resolution. (c) The Person has made such applications or entered into such agreements as the board of directors may require. (d) The Person has been elected as a Member by the board of directors. Section 1.2 Rights of Members. The Members shall have the right to vote on matters as set forth in these Bylaws, including: (a) the election of directors, pursuant to RCW 24,03,100-7 (b) any increases or decreases in the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent, pursuant to RCW 24.03.100; (c) the removal of directors at any time with or without cause or notice, pursuant to RCW 24.03.103; (d) all amendments to these Bylaws, pursuant to RCW 24.03.070; (e) all amendments to the corporation's Articles of Incorporation, pursuant to RCW 24.03.165(1); (f) any sale, lease, exchange, or other disposition of all or substantially all, of the corporation's property and assets, if not in the ordinary course of business, pursuant to RCW 24.03.215 (1); (g) any plan of merger or consolidation of the corporation, pursuant to RCW 24.03.195 (1); SEA 191881 M 50665-10 Seattle (h) any voluntary dissolution and winding up of the corporation, pursuant to RCW 24.03.220(1); (i) any plan providing for the distribution of assets in dissolution, pursuant to RCW 24.03.230(1); and (j) any other matters that may properly be presented to the Members for a vote, pursuant to the corporation's Articles of Incorporation, Bylaws, or action of the board of directors, or by operation of law. Section 1.3 Certificates of Membership. Certificates of membership in the corporation may be issued. If issued, they shall be numbered, and the respective Members' names shall be entered in the membership register of the corporation as the certificates are issued. Certificates, if any are issued, shall bear the Member's name and shall be signed by the president or the secretary. Section 1.4 Status of Membership. Membership in the corporation shall be personal, shall not survive the death of any individual Member, and may not be transferred by any means. Section 1.5 Termination of Membership. Membership in the corporation may be terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, (b) or for failure to actively support corporate purposes, or to actively participate in corporate activities, or (c) for failure continually to meet the qualifications of a Member pursuant to Section 1.1 of these Bylaws. Removal shall require the affirmative vote of three -fourths (3/4`h,) of directors present at a duly held meeting of the board of directors. In the event that any such termination is contemplated, the board of directors shall notify the Member in a record of the reasons for the proposed action, and of the time and place of the meeting of the board of directors at which termination is to be considered, not later than ten (10) days prior thereto. Prior to the meeting, the subject Member shall be entitled to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the board, the termination may be immediate, without prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expire, and for the transaction of such other business as may properly come before the meeting, shall be held each year at the registered office of the corporation, on the 1st day of April, at 10-00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the safe hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half (1/2) of the SEA 1918819v2 50665-10 Seattle votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (10) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten (10) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. Section 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2.3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 2.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. SEA 191881M 50665-10 Seattle Section 2.4 Quorum. Members holding one -tenth (1/10th) of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney -in -fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting Section 2.7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims. ARTICLE 3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (1). The Members, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent. Each director shall hold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said SEA 1918819v2 50665-10 Seattle 4 resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation; amend the Articles of Incorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting, to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, whenever in their judgment the best interests of the corporation will be served thereby. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE 4 MEETINGS OF BOARD OF DIRECTORS Section 41 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution of the membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three (3) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by SEA 191881M 50665-10 Seattle 5 regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 Consent to Notice by Email. If notice is provided to directors by email, it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action SEA 191881M 50665-10 Seattle 6 to either the person acting as secretary of the meeting before the adjournment of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taker at a meeting of the Members or board of directors (or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Bylaws, "executed" means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE G WAIVER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors. and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He/She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. SEA 1918819v2 56665-10 Seattle 7 Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records. Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7.7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 31. Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers' and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any Member of more than three (3) months' standing or a representative of more than five percent (5%) of the membership. Costs of inspecting or copying SEA 191881M 50665-10 Seattle 8 shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation may be amended by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles of Incorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on December 10, 2006. SEA 1918819v2 50665-10 Seattle / Nicho fkn, 9 ecretary 9 February 22, 2007 DECISION OF THE HEARING EXAMINER ON MATTERS OF STANDING AND JURISDICTION BROUGHT BY ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND BRAD NICHOLSON, AN INDIVIDUAL This decision will be the second time this office has addressed the issue of standing involving property commonly called the Landing_ Both matters involve appeals of various aspects of administrative decision -malting. In brief summary, The Landing is a proposed mixed use land use project proposed for approximately 47 acres in north Renton. The land, in the main, was property used by the Boeing Company for its airplane business and vacated as the company consolidated its operations toward the north and west. With the potential for the land to be developed or redeveloped the City of Renton conducted an environmental review of proposed changes to its Comprehensive Plan and Zoning Code and potential land use changes for the property. The City issued an Environmental Impact Statement (EIS). The adequacy of the EIS was appealed and after a public hearing on the appeal, the appeal was denied. The appellant in that matter is a member of a group challenging current decisions regarding the current proposal and also appealed the current proposal in his own name. Subsequently, Boeing sold off some of the acreage and a developer offered a development plan. The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. That ordinance designated as Planned Action uses and activities described in the EIS and subject to mitigation measures that had been separately proposed as part of a Development Agreement originally agreed to by Boeing and the City. That ordinance further allowed changes to that or other proposals that fell within the scope and character of the original plan. The original developer abandoned their original plans and the property changed hands to the current applicant. New plans were submitted and found by the Director of Development Services (Director) to be in conformance with the original Planned Action. The proposal was approved as a Planned Action and the Master Site Plan was approved. These actions by the director apparently removed any need for subsequent public hearings or environmental analysis of the new proposal. Those decisions were appealed by two separate associations. It was found that one association, the one that has filed this new appeal, did not have standing while the second association was found to have standing. That second association withdrew their appeal. The association found to not have standing appealed that decision to the City Council. The City Council has not resolved the appeal on standing at this time. One of the identified appellants in this matter, ASE, was also an appellant in the earlier proceeding, hereinafter Landing I. In Landing I, this office found that ASE did not have standing (see, Examiner's Decision dated September 5, 2006) It found ASE had no real control of the litigation and was a sham organization fronting for a competitor which itself could have no standing to challenge City actions. In this proceeding, hereinafter Landing El, ASE again filed an appeal but was joined by Brad Nicholson, an individual who is also the only identified member of ASE. Some of the background has been provided above but the detailed facts of the land use issues or permits are not necessary to determine the standing of the parties. (A third appeal, not yet scheduled at this time, has been filed on the issuance of a building permit (Building permit #BO60540) for the project and that chatter could be referred as Landing III.) EXHIBIT F Hearing Examiner's Decision February 22, 2007 Page 2of7 The parties filed two appeal letters asking that this office review and reverse decisions of the Director. Those appeals were filed on August 3 1, 2006. In one decision, the Director approved a Site Plan for portions of the Landing project. The facts of that project are unnecessary to detail at this stage of the proceedings. In the second challenged decision, the Director apparently issued an interpretation of a code provision dealing with setbacks from public streets. In that second decision, the Director found that a provision of code omitted a procedure that would allow a modification to the setback requirements. The Director issued his interpretation on July 17, 2006. The two decisions of the Director were unrelated other than the fact that the Site Plan approved by the Director granted a modification, a modification that would not have been permitted absent the prior interpretation, that provided a procedure for a modification where code had not specifically allowed it. Timeliness of Appeal of Administrator's Interpretation Before even tackling the issue of the standing of the parties, this office will deal with the second issue first, the Director's interpretation. This office finds it does not have jurisdiction. The attempted appeal is untimely. This office does not believe it has jurisdiction over the original decision by the Director to graft modification criteria onto the L N-C 1 provisions of the Code. The decision was made on July 17, 2006 and no direct challenge of that decision was made until the parties filed their letter on August 31, 2006. This office does have some qualms about such "Wile -making." This does not mean that this office can confer on itself jurisdiction over the matter. Clearly, a decision without any anchor grounding it to a specific matter means few if any players know it was made. As a matter of fact, depending on who requested such a decision, only parties seeking such a positive interpretation might be aware it was made and would have little incentive to appeal or inform others about such an interpretation. Obviously, if a particular interpretation is sought and denied by the Director, at least, there would be a party that would know about the decision and have incentive to lodge an appeal. But the general public, a public that might be affected by such interpretations would be cut out of the process, not be generally informed, and be clueless that an interpretation was issued that could be appealed. In this case, that leaves no one or almost no one with the ability to challenge it. As mentioned at the hearing, this also means that innocent parties reading the existing code have no indication that such an interpretation now is automatically read into the existing provisions. But while such scenarios might be problematic, this office does not grant equitable relief. The decision was made on July 17, 2006 and the appeal was filed on August 31, 2006, which is more than 14 days after the decision and substantially beyond the appeal period. If the parties want relief it would appear that they would need to petition a court and not this office. Applicable Hearing Examiner Code provisions: RMC 4-8-110(E)(3) E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL. DETERMINATIONS: (Amd. Ord. 4827, 1- 24-2000) 1. Applicability and Authority: a. Administrative Determinations: Any administrative decisions made may be appealed to the Hearing Examiner, in writing, with the Hearing Examiner, Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995) 3. Standing. Hearing Examiner's Decision February 22, 2007 Page 3 of 7 b. Standing for Appeals of Administrative Determinations other than Environmental: Appeals from administrative determinations of the City's land use regulation codes and from environmental determinations required by the Renton environmental review regulations may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. (Ord. 3454, 7-28-1980) The Parties and Filings So we come to the issue of the standing of the parties. There is the association, ASE, a party that in Landing 1 was found to be without standing. They are back again. They have indicated that things have changed since the last ruling and that ASE should be granted standing. Separately, there is Brad Nicholson who appears as an individual claiming he is injured or will be injured and should be granted standing. There were two appeals filed. One of the appeals challenged the Site PIan approval noting a number of reasons why it failed to meet the City's criteria for review. This first appeal was filed in the name of both ASE and Brad Nicholson. It was signed by an attorney, signing for ASE. It was not signed by Brad Nicholson. It was accompanied by one filing fee. The second appeal challenged the Director's Interpretation of provision or possibly lack of a provision allowing modifications of required setback limits. It followed the form and substance of the first appeal mentioned above. It was filed for both ASE and Nicholson, it was signed by the ASE attorney but not Nicholson and it was accompanied by only one filing fee. The City and underlying applicant, Harvest Partners (hereinafter Harvest), claim that neither party should have standing. They claim ASE has not changed its basic foundation or governing structure. They also claim that even if ASE's structure did change, neither the association nor any of its individual members (only Brad Nicholson has been identified although ASE claims it has up to about ten (10) members) suffers the necessary injuries to have associational standing. In regard to Brad Nicholson, the City and Harvest advance the argument that Nicholson did not sign either of the appeals, did not provide an appeal fee for either appeal and was not mentioned in the "prayers" for relief, which only mentions ASE. Perfection of Appeal by Brad Nicholson in the absence of signature and separate filing fee. Again, this office will dispense with the second of these subsidiary issues first. The rules require appeals to be filed in writing (references omitted), contain sufficient information to inform the City about the reasons for the appeal and be accompanied by the appropriate filing fee. There are no other rules about signatures, how many people can join in "one" appeal, how many fees are required if multiple parties join in an appeal or require formal "prayers" for relief Nicholson, at this point, has sufficient standing to actually allege he has standing to bring an appeal. Nicholson should not be thwarted by the failure of a signature or the payment of a second. fee. Neither is required by Code if multiple parties join in an appeal. If there is any problem with a person being improperly added to an appeal and/or not intending to be a party to an appeal, there are plenty of opportunities to rectify such a mistake. On the other hand barring a person due to criteria not included in the requirements for an appeal would be inappropriate. This office will consider the challenges appropriately filed on Nicholson's behalf. Nicholson's actual standing to bring and argue an appeal will be discussed below. Hearing Examiner's uecision February 22, 2007 Page 4 of 7 ASE's Standing ASE claims that it anticipated the Landing I decision of this office based on the questions raised at the original Landing I hearing on standing. ASE recognized that this office had concerns about who directed the organization and who directed the litigation for Landing I. Since ASE apparently expected to appeal additional aspects of the Landing proposal or proposals they recognized a need to address the issues that were raised by those associational standing questions. ASE called a special meeting and adopted a new policy. They also modified bylaws although the date of bylaw changers reflecting the policy change is unclear from the record. The policy was adopted at a special meeting of the Board of Directors held on August 31, 2006, the date that the appeal was filed. The policy, in full, states: "The members shall be consulted by the Board of Directors in advance of all major decisions concerning appeals or litigation, including whether or not to appeal, whether to dismiss appeals, whether to settle, etc. The corporation shall carry out the directions of the members." Unfortunately, ASE appears not to have let their tea leaves fully settle. Accepting that this new policy was adopted by ASE, the new policy does little to warm this office to their arguments in this second proceeding. The new policy is not a bylaw but merely a policy and has no legal weight. The Directors consult and seek input but there is nothing that requires them to follow the feedback. The policy is quoted above. The amended bylaws state a more succinct version: "Section 2.7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims." The bylaws contain no line repeating the policy statement that "The Corporation shall carry out the directions of the members." The Directors, well, sole Director, can actually "fire" members if they do not fzxrther the causes of ASE. ASE is still not governed by its members. The number of members is still a closely held secret but for purposes of ruminating about how ASE works, say there are nine (9) members. For purposes of argument, say, five members decide that the litigation is too costly or that some compromise offered made the Harvest's project and Site Plan acceptable but ASE (whatever or whomever it or they are) decides that settlement is not in the interests of ASE, those five members could be removed from membership. The bylaws allow removal of members if membership is detrimental to the corporation. "Section 1.5 Termination of Membership. Membership in the corporation may be terminated (a) for any action by a Member that is detrimental to the best interests of the corporation, (b) or for failure to actively support corporate purposes..." This office urges both ASE and others to fully read the bylaws and the policy. They are carefully crafted to make sure that ASE gives very little, read no, powers over litigation to its members. The members have very little, actually, no opportunity to derail this litigation or to firmly direct this litigation. The association remains the shell corporation it was in Landing I. Hearing Examiner's Decision February 22, 2007 Page 5 of 7 This office will rely on its decision in Landing I and not repeat its examination of associational standing or why ASE is a sham standing in for a competitor that does not have standing. This office finds ASE does not have standing to appeal either of the Director's decisions. Brad Nicholson's Standing ASE and its attorney or Brad Nicholson, himself, did make one appropriate move. Nicholson joined the appeal as an individual appellant, Brad Nicholson was included on the initial filing papers as an appellant. This office has already dealt with the arguments that Mr. Nicholson was not appropriately made an appellant since he neither signed the appeal letter nor paid a separate appeal fee. As noted above, the absence of a signature and a separate filing fee does not appear to be a bar to his challenge under this office's reading of Code. The City and Harvest next argue even if his signature and fee were not necessary, he has no discernible, individualized interest or injury in a project in north Renton Iocated about two miles from his home. This office, possibly inappropriately, has consistently held that individuals have standing to challenge certain City decisions in administrative and environmental appeals. This office actually found in Landing I, that PASS, the separate citizens' association, had standing to bring that action. This office also previously found that this very individual, Mr. Nicholson, had standing to challenge the adequacy of the Environmental Impact Statement for the Boeing Comprehensive Plan Amendment and Rezone actions. It would be inconsistent to now find he did not have standing when the actual development, the Site Plan in contention, was being reviewed. Given the positions taken by the City and Harvest this office admits that it has trouble figuring out how one challenges potentially improper decisions. While far from suggesting any improper motives, if there were collusion between an applicant and the City, no person or group could possibly challenge a decision. If for instance under Site Plan review, the City approved a 40- story complex (and it has done no such thing) and found justification in its policies but a modification were required, and the applicant was satisfied, no one could challenge that and that, this office believes would be untenable. Such a glaring example might be unfair but it provides a frame of reference. How glaring would the nustake have to be to provide a basis for standing or taken the other way, how small a mistake deprives one of standing because the harm is small. It seems clear that Nicholson has a strong belief that the approved Site Plan violates City policies and/or Code provisions. He argues that allowing it to go forward will harm him either due to being a badly designed project that does not meet code or one that may create severe traffic problems adversely affecting him or cause stormwater problems with water bodies he alleges he uses. The strong belief that there is an error does not demonstrate error. Facts will be required of the appellant to show error. Nicholson should be permitted the opportunity to show those factual harms subject to the normal burdens of proof attached to an administrative appeal and the requirements that the decision below is entitled to substantial weight. Brad Nicholson has standing to file the appeal. Hearing Examiner's recision February 22, 2007 Page 6 of 7 Decision: The appeal of ASE is dismissed, as they have no standing. The appeal of Brad Nicholson may proceed to arguments on the merits regarding the Site Plan review. This office does not have jurisdiction to review the Director's Interpretation, ORDERED THIS 22nd day of February 2007. 7�- k �C FRED J. UFMAN HEARIN TRANSMITTED THIS 22ad day of February 2007 to the parties of record: Zanetta Fontes Peter Buck Jerome L. Hillis Warren Barber & Fontes, P.S. Buck & Gordon LLP Hillis Clark Martin & Peterson, P.S. PO Box 626 2025 First Ave, Suite 500 500 Galland Building Renton, WA 98057 Seattle, WA 98121 1221 Second Avenue Seattle, WA 98101 Renton Reporter Attn: Oscar Halpert PO Box 130 Kent, WA 99032 Brad Nicholson 2811 Dayton Avenue Renton, WA 98056 TRANSN F= THIS 22°d day of February 2007 to the following: Mayor Kathy Keolker Larry Warren, City Attorney Jay Covington, CAO Julia Medzegian, Council Liaison Gregg Zimmerman, PBPW Director Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Ross Radley Attorney at Law 3316 Fuhrman Ave E., Ste. 250 Seattle, WA 98102 Larry Rude, Fine Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Dev Services King County Journal A Hearing Examiner's Decision February 22, 2007 Page 7 of 7 Pursuant to Title 1V, Chapter 8, Section IOOGof the City's Code, request for reconsideration must be filed in wrion on or before 5:00 p.m.,March $ 2007. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen (14) days from the date of the Examinees decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take further action as be deems proper. An appeal to the City Council is governed by Title N, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An apipeal MMsLbe filed in writLuz on or before 5:00 P.m.. March $. 2007. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants will be required urior to approval by CLt.Y Council or final iRrocessigg of the-e. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision -maker concerning the proposal. Decision -makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. 1 2 3 4 5 6 7 8 9 10 lI 12 13 14 I51 16i 17 18 19 20 21 22 23 1 24 25 26 BEFORE THE HEARING EXAM In the Matter of the Appeals of Alliance for South End (ASE) re; The Director's Administrative Decision Designating The Landing Master Plan Application a Planned Action The Director's Master Site Plan Approval Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval and Interpretation/Po I icy Decision RECEIVED DEC ! 1 2006 MLLIS, GLARK, RLFART IAA e, PETERSOfv iNER OF THE CITY OF RENTON 1 I I NO. LUA-05-136, SA -A, SM I NO. LUA-05-136, SA-M h NO. LUA-06-071, SA -A h f STIPULATION AND ORDER f l I. RECITALS 1. Applicant Harvest Partners has applied for approvals related to a mixed -use commercial and residential project known as The Landing, which includes retail, office, entertainment, restaurant, hotel- and residential uses with associated parking on approximately 47 acres of land within the City of Renton, which is more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference ("The Landing Project"). The Site Plan for The Landing Project contains Quadrants A, B, and C, as depicted on Exhibit B, which is attached hereto and incorporated herein by this reference. ?. Target Corporation, a Minnesota corporation ("Target"), has applied for a building permit to construct a retail store in Quadrant C of the Landing Project, which is depicted as Building STIPULATION - I Bucko Gordon LLP Y;%WP\ASFtiSETTLEMEN"IIYEST)NG SETTLEMENT AGREEMENTS1120406)ASE TARGET 2025 First Avenue, Suite 500 STIPULATION 120406 FINAL DOC Seattle, WA 48121 {266)382•9540 EXHIBIT 1 100 on the site plan attached hereto as Exhibit C and incorporated herein by this reference fthe 2 "Quadrant C Site Plan"). Tar-get's plans include construction of a principal use store, roads, 3 driveways, access ways, utilities, street improvements, drive aisles, parking, and loading as may be 4 required in Target°s reasonable discretion to construct, occupy and operate its retail store 5 (collectively referred to herein as "Target's Landing Project"), all as shown on Exhibit D, which is 6 attached hereto and incorporated herein by this reference. 7 3, Harvest Partners has applied for building permits to construct additional retail 8 structures in Quadrant C, including Buildings 103 and 104 as depicted on the Quadrant C Site Plan. 9 4. Targets Landing Project and Buildings 103 and 104 are collectively referred to herein 10 as the "Vested Developments" and are shown on Exhibit D hereto. 11 5. All of the parties hereto have entered into a separate settlement agreement of even 12 date herewith ("Settlement Agreement") related to the Vested Developments. 13 6. The above entitled causes have the potential to affect the Vested Developments and 14 the parties want to avoid any such effect. 15 7. In accordance with the Settlement Agreement, the parties desire to enter this 16 stipulation related to the above entitled causes. 17 IL STIPULATION is IT IS HEREBY STIPULATED by and between the parties hereto, by and through their 19 counsel of record, that: 20 I. The above entitled causes and allegations therein do not pertain to and shall have no 21 effect upon the Vested Developments. The Vested Developments are hereby deemed vested as of the 22 date of filing of their respective building permit applications, and may proceed with the building 23 permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of 24 the above entitled causes; and 25 2. ASC and Nicholson reserve all of their claims as to all portions of The Landing 26 Project other than the Vested Developments, including without limitation Buildings 101 and 102 as STIPULATION - 2 B U C k 0, Gordon LLP Y:\WMASE\SETTLEMCNT\M- SETTLEMENT AGRECMENT51l204061A5E TARGET 2025 First Avenue, Suite 500 STIPULATION 120406 f1NAL.DOC Seattle, WA98121 f2�h1 382.9540 L3 1 depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Parties all agree that the 2 Settlement Agreement and this Stipulation and Order shell not preclude or diminish any of the 3 parties' claims, defenses or arguments in any current or future appeals of the remaining portions of 4 The Landing Project and no party shall assert any position to the contrary. 5 6 DATED this day of December, 2006 7 C1TY OF RENTON S 9 gy �f r YAN L. Fontes, WSBA #9604 10 n# City Attorney Il 12 BUCK & GORDON, LLP 13 14 By (SEE ATTACHED) Peter S. Buck, WSBA 45060 15 Attorneys for Petitioners Brad Nicholson and Alliance for South End 16 (ASE) 17 HILLIS CLARK MARTIN & PETERSON, P.S. 18 19 By ( SEE ATTACHED), Jerome L. Hillis, WSBA 41704 20 T. Ryan Durkan, WSBA #I 1805 Karen D. Breckenridge, WSBA #36666 21 Attorneys for Applicant Harvest Partners 22 23 [REMAINDER OF PAGE 1S INTENTIONALLY BLANK] 24 25 26 STIPULATION - 3 BuCkOGordon LLP Y_IVYMASM- ETfLEMDMVL-STING SETTLEMENT AGREEMENTSI12040AsSE TARGET 2W5 FTA A--. Suits S00 Seattle, WA 98121 STIPULATION 120406 FiNAL,DOC (206) 382-9540 1 2 3 4 S 6 7 8 9 10 11 12 13 i 14 15 16 I7 i8 19 20 21 22 23 24 25 26 depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Parties all agree that the Settlement Agreement and this Stipulation and Order shall not preclude or diminish any of the parties' claims, defenses or arguments in any current or future appeals of the remaining portions of The'Landing Project and n party shall assert any position to the contrary. DATED this day of December, 2046 CITY OF RENTON By (SEE _ATTACHED ) Zanetta L. Fontes, WSBA #9604 Assistant City Attorney L-oz Attorneys for Petitioners Brad Nicholson and Alliance for South End (ASE) HILLIS CLARK MARTIN & PETERSON, P.S. By (SEE ATTACHED) -- Jerome L. Hillis, WSBA #1704 T. Ryan Durkan, WSBA #11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners [REMAINDER OF PAGE IS INTENTIONALLY BLANK] STIPULATION - 3 BUCko GOrdOCI LLP Y1WPXASEl9ETTLEMDMVESTING SETTLEMENT AGREETviEN'I'S11?04061A5E TARGET 2025 first Avenue. Suite 500 Seattle, WA 9B121 STIPULATION 120406 F]NAL.pOC (206) 382-95417 1� 3 4 5 6 7 S 9 10 I1 12 13 14 15 16 ]7 18 19 ?0 2I 1)1) 23 24 25 ?6 depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Parties all agree that the Settlement Agreement and this Stipulation and Order shall not preclude or diminish any of the parties' claims, defenses or arguments in any current or future appeals of the remaining portions of The Landing Project and no party shall assert any position to the contrary. DATED this day of December, 2006 CITY OF RENTON By (SEE ATTACHED) Zanetta L. Fontes, WSBA #9604 Assistant City Attorney BUCK & GORDON, LLP By (SEE ATTACHED). Peter S. Buck, WSBA #5060 Attorneys for Petitioners Brad Nicholson and Alliance for South End (ASE) HILLIS CLARK MARTIN & PETERSON, P.S. By a/W/02V--� Jerome L. lifijisl WS BAW 1704 T. Ryan Durk , WSBA #11805 Karen D. Breckenridge, WSBA 936666 Attorneys for Applicant Harvest Partners [REMAINDER OF PAGE I5 INTENTIONALLY BLANK] STIPULATION - 3 BUCko Gordon LLP YAWRASMSETTLEMENTIVESTING SETTLEMENT AGREEMEWS\I2WM1A5E TARGET 2025 First Avenue, Suite 500 Seattle, WA 98121 STIPULATION [PULATION 120406 riNAL.DOC (206) 382-9540 a RECEIVED JAN 1 9 Z907 HILLIS, CLARK, MARTIN & PETERSON, PS 1 III. ORDER 2 Pursuant to the foregoing Stipulation of the parties, it is hereby ORDERED that- 3 1. The above entitled causes and allegations therein do not pertain to and shall have no 4 effect upon the Vested Developments. The Vested Developments are hereby deemed vested as of the 5 date of filing of their respective building permit applications, and may proceed with the building 6 permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of 2 the above entitled causes. 8 2. ASE and Nicholson reserve all of their claims as to all portions of The Landing 9 Project other than the Vested Developments, including without Iimitation Buildings 101 and 102 as 10 depicted on the Quadrant C. Site Plan and Quadrants A, B, and D. The Settlement Agreement and 11 this Stipulation and Order shall not preclude or diminish any of the parties' claims, defenses or 12 13 arguments in any current or future appeals of the remaining portions of The Landing Project and no 14 party shall assert any position to the contrary. 15 16 DONE this I day o 17 „ 18 City of Rento e7ai-i'lExaminer 14 20 21 22 23 24 25 26 STIPULATION - 4 Buck O Gordon l-LP Y:`WPIA METl'LEME1,MVESTING SETTLEMENT AGREEMENTsu2MWASE TARGET 2025 First Avenue, Suite 500 SeaSTIPULATION 120406 FINAL.DDC (206) 3 WA 98121 206� 352-9540 EXHIBIT A LEGAL DESCRIPTION OF LANDING PROJECT Lot 2A and Lot 3A of Boeing Lakeshore Landing Lot Line Adjustment No. LUA-06-004, recorded May I0, 2006 under Recording No. 20060510900003; Together with Lot IA and Lot 4A Boeing Lakeshore Landing Lot Line Adjustment No. LUA-06-057-LLA, recorded August 8, 2006 under Recording No. 20060808900001; Situate in the County of King, State of Washington. Y 1WP%ASEISErtLrKlFN %VF5TLNG SL•' MIENt AGRFFAiENM1?WIIe4STlPULA7TUN AND ORD@R L\14101TS DOC y r� EXHIBIT D THE VESTED DEVELOPMENTS N13rUff R.— r-r,7:E, Y N%yl'1A5E55ML"1W1MYE31'ING SETTLE.ME T AGKEEIAE-NT511204WAST$1'ULATION AND OIIUL'A C%71113IT5 DOC l dlitius 1i,r all III'Lhuldrelnt C' except utility contlectiow;1u1 Buildils_o 101 & 10-1 an: cnnsidCM] lr111(&111e t `,CmCd 1)i4'L'llIp1111'lltti. Cniss-limcking in parking areas 1 iS 110L imended to jimclUlle the installatitut (11'Ctlrll. Sldc:51a1k. 1 or Iandscaltin., ill Nurse areas. Fseludtl lhrtv i�til +I ` ® Dv%CIUIII1k1[h S` 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 091 24 25 CITY OF RENTON DEC 112006 CITY CLERK'S OFFICE wRA-4a, b%vered 6y ke as ter. BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON AND/OR BEFORE THE PLANNING/BUILDINGIPUBLIC WORKS ADMINISTRATOR In the Matter of the Appeals of ) Alliance for South End (ASE) and } B060540 Brad Nicholson re: ) } NOTICE OF APPEAL OF The Building Permit Application Approval for } BUILDING PERMIT Buildings 101 and 102 } APPLICATION APPROVAL I. INTRODUCTION The Alliance for South End (ASE) and Brad Nicholson hereby file this Notice of Appeal of the Building Permit Application Approval for the structures designated as Buildings 101 and 102 in The Landing's Site Plan, which was issued by the City's Development Services staff on or about November 28, 2006 (the "Approval," attached hereto as Exhibit A),I The Approval was based on substantial errors in law and/or fact, including reliance on a flawed Master Plan and Site Plan, violations of the City's Permit Classification and Review ordinance, and violations of the City's Site Development Plan Review ordinance, as set forth in further detail below. ' The Building Permit Application for these structures and the "Plan Check" intake sheet prepared by staff for that application (the "Application") are attached hereto as Exhibit B. Buildings 101 and 102 are shown on the attached Exhibit C (Quadrant C Site Plan), All exhibits are incorporated herein by this reference. NOTICE OF APPEAL OF Burke► Gordon !LP BUILDING PERMIT APPLICATION APPROVAL - 1 2025 First Avenue, Suite 500 Y;1WMASEIBUILDTNG PERMIMNOTICE OF BUH,DING PERMIT APPEAL Seattle, WA 98121 121 Io6.DOC (206) 382-9540 cc- 1-a vry irk C,4y A4y "•� IiW Sr1le=5 ��le- $ AS5t. e:�y 4 d�Q R I I N A L 5 } c.y �c ke 1�sZte. r. &eejy zW'Ife r�o y r/ phF� ,4r4a,ao� f t..��I�fv�r 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 II. TIMELINESS AND JURISDICTION This appeal is filed with the Hearing Examiner pursuant to Renton Municipal Code (RMC) 4-8-110.E, specifying a 14-day appeal period for administrative decisions. This appeal is also filed with the Planning/Building/Public Works Administrator pursuant to RMC 4-5-050.D.4, which states that "[t]he Appeals Board for purposes of Section 112 of the International Building Code shall be the Planning/Building/Public Works Administrator or his/her designee." III. STANDING A. ASE Standing Appellant ASE is a Washington nonprofit corporation established to advance its members' interests in Renton's environment, land use planning, and governmental and fiscal integrity. ASE's membership is made up of Renton citizens who are directly impacted by The Landing project in their daily activities. ASE's members control the direction of the corporation by expressing their views in consultations with the board of directors in advance of all major decisions concerning appeals, litigation or settlement of claims, as required by ASE's bylaws, and by voting on matters set forth in ASE's bylaws, including but not limited to the election of directors and any increases or decreases in the number of directors, pursuant to RCW 24.03.100; 1 the removal of directors at any time with or without cause or notice, pursuant to RCW I 24.03.103; all amendments to ASE's bylaws, pursuant to RCW 24-03.070; and all amendments to ASE's Articles of Incorporation, pursuant to RCW 24.03.165(1), NOTICE OF APPEAL OF Bucker Gordon LLP BUILDING PERMIT APPLICATION APPROVAL - 2 2025 First Avenue, Suite 500 YAWP\ASEISUILDING PERMIMNOTICE OF BUILDFNG PERMIT APPEAL Seattle, WA 48121 121 106.DOC (206) 3B2-9540 1 2 3 4 4 6 7 S' 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ASE has standing to file this appeal because i) the interests of ASE's members are within the zone of interest to be protected or regulated by the City's Site Development Review ordinance, the City's Permit Classification and Review Ordinance, the State Environmental Policy Act (SEPA) and Renton's SEPA ordinance (discussed in the Master Plan and Site Plan appeals), and the International Building Code; and ii) ASE's members have suffered and will suffer the following injury in fact: a ASE has one or more members that frequently drive the roads surrounding the proposed project, who will be impacted by the increases in traffic associated with this project and by the congestion that will degrade the roadway system. • ASE has one or more members who enjoy Lake Washington and the natural environment thereof, including water quality and fish habitat, who fish in the waters immediately impacted by runoff from the project, and who will be impacted by the degradation to water quality and harm to fish habitat associated with the project's water runoff and the use of outdated stormwater standards. • ASE has one or more members who are residents of Renton with an active interest in the integrity of City of Renton's land use and environmental review processes, who have actively participated in past land use decisions associated with redevelopment of this property, who seek to ensure that the City abides by its policies and procedures and conducts all project reviews in an open, proper and ethical manner, and who are negatively impacted by the improper processing in connection with this project. Due to the City's failure to follow its own procedures, NOTICE OF APPEAL OF Bucke Gordon LLP BUILDING PERMIT APPLICATION APPROVAL - 3 2025 First Avenue, suite 500 Y:IWMASEIBUILDINGr PERMITs1NOTICE OF BUILDING PERMIT APPEAL Seattle, WA 98121 121106 DOC (205) 382-9540 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 ASE's members were unable to introduce evidence regarding project impacts such as traffic and stormwater, which directly injure them. • ASE has one or more members who wish to have their community planned and development consistent with the provisions of the Renton Comprehensive Plan, and are injured by the City's denial of their rights to such a community due to the fact that The Landing is not consistent with the Comprehensive Plan. • ASE has one or more members actively involved in earlier City of Renton proceedings for this project who did not challenge previous decisions because they relied on City promises of future environmental processing, promises which the City has refused to honor. As we have disclosed before, this firm also represents WEA Southcenter LLC, the owner of Westfield Southcenter. WEA Southcenter LLC continues to be our client in other matters and contributes some funds to this appeal by ASE. We wish to reiterate, however, that WEA Southcenter LLC is not a member of ASE. ASE's standing in this case has nothing to do ,with WEA Southcenter LLC. Rather, ASE's standing is established by the standing of its members, all Renton citizens who control ASE's activities. B. Nicholson Standing Appellant Brad Nicholson is a lifelong resident of the City of Renton and member of ASE who lives near The Landing site, owns property near the site, commutes through the site, and uses Gene Coulon Park and the waters of Lake Washington adjoining the site. NOTICE OF APPEAL OF BUILDING PERMIT APPLICATION APPROVAL - 4 Y:1WMASEIBUILDING PERMITS\NOTICE OC BUILDING PERMIT APPEAL 121106. DOC Buck► Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 Nicholson has standing to file this appeal because i) his interests are within the zone of interest to be protected or regulated by the City's Site Development Review ordinance, the City's Permit Classification and Review Ordinance, SEPA and Renton's I SEPA ordinance, and the International Building Code; and ii) he has suffered and will suffer the following injury in fact: • As a result of the unanalyzed and unmitigated traffic and stormwater impacts caused by the project, Nicholson will suffer harm from increased traffic, delays, and risk in traveling along the roads he depends upon to commute and travel generally in the community; from decreased water quality in Lake Washington, the Cedar River, and Johns Creek, and harm to Chinook salmon and other salmonids that use these water bodies. • Nicholson also has a longstanding interest in the land use decisions of the City of Renton and has participated extensively in public hearings and proceedings' regarding The Landing site. As a result of the City's illegal processing of the Building Permit Application for Buildings 101 and 102, the City's failure to hold a public hearing on the Director's decisions approving The Landing project, and the Director's illegal designation of The Landing Master Site Plan as a "Planned Action," Nicholson is already suffering harm from an inability to participate and voice objections to the City Hearing Examiner and the City Couneil.2 2 In addition, as a member of ASE, Nicholson is injured in the manner set forth in section III.A above. NOTICE OF APPEAL OF Burke Gordon ALP BUILDING PERMIT APPLICATION APPROVAL - 5 2025 First Avenue, suite 5DD YAWP1ASEIBUILDING PERMITS NOTICE OF BUILDING PERMIT APPEAL Seattle, WA 98121 121 I06.DOC (2D6) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 pill 21 22 23 24 25 IV. GROUNDS FOR APPEAL A building permit is void if issued in violation of any provision of the RMC. Section 105.4 of the International Building Code, adopted by reference in RMC 4-5-050, provides as follows: The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. As discussed below, the City's Approval of the Building Permit Application for Buildings 101 and 102 presumed to give authority to violate numerous provisions of the RMC. Therefore, the Approval and the building permits it purports to authorize are invalid. A. The Approval Relied on a Flawed Master Plan and Site Plan The Approval necessarily relied on the Master Plan approval dated May 19, 2006, and the Site Plan approval dated August 17, 2006. RMC 4-9-200.B(1)(a) provides that "[n]o Site Plan Review within an area shall be approved until such time as a Master Plan is approved for the same area." Similarly, RMC 4-9-200.B(2) provides that "[n]o building permit shall be issued for any use requiring Site Plan Review pursuant to this Section until the Reviewing Official has approved, or approved with conditions, the Site Plan application." The Director's Master Plan and Site Plan approvals were erroneous, for the reasons discussed in ASE's Master Site Plan appeal, Planned Action Appeal, Site Plan Appeal, and Appeal of Administrative Interpretation/Policy Decision, and its pleadings in NOTICE OF APPEAL OF Bucke Gordon ALP BUILDING PERMIT APPLICATION APPROVAL - 6 2025 First Avenue, suite 500 YAWPIASEWILDING PERMIT'SMTICE OF BUILDINO PERMrr APPEAL Seattle, WA 98121 121 106.DOC 4206) 382-9W 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 those appeals, all of which are incorporated herein by this reference.3 The Building Permit Application for Buildings 101 and 102 cannot be approved until the City corrects the errors in the Master Plan and Site Plan approvals for The Landing. B. The Approval Violated Procedural Requirements of the City's Permit Classification and Review Ordinance (RMC 4-8-080). The Approval failed to comply with the procedures prescribed in RMC 4-8-080. As was the case with the City's processing of the Site Plan for The Landing, the Hearing Examiner was the appropriate official to review and take action on the Building Permit Application for Buildings 101 and 102. By processing the Application at the staff level, the City violated RMC 4-8-080. The City should have processed the Application using the procedures set forth in RMC 4-8-080 for Type VI permits, which are reviewed and approved by the Hearing Examiner. See RMC 4-8-080.G (Land Use Permit Procedures — Type VI). RMC 4-8- 070.H(i) provides that the Hearing Examiner "shall review and act on . , . [b]uilding permits submitted in conjunction with any of the above," including "[s]ite plan approvals requiring a public hearing." RMC 4-8-070.H(1)(q),(n). A public hearing before the Hearing Examiner was required by RMC 4-9-200.1) for The Landing's Site Plan because the project exceeds the thresholds for "Large Project Scale" in RMC 4-9-200.D(2)(b).4 Therefore, the Hearing Examiner should have reviewed the Building Permit Application' 3 See appeal statements and related pleadings, under Master Site Plan Appeal and Planned Action Appeal (LUA-05-136, SA -A, SM); Site Plan Appeal and Appeal of Administrative Interpretation/Policy Decision (LUA-06-071, SA -A). 4 A public hearing is also required because there are significant unresolved concerns about the proposal. RMC 4-9-200.D(2)(a). NOTICE OF APPEAL OF BuCkO Gordan lILLP BUILDING PERMIT APPLICATION APPROVAL - 7 2025 First Avenue, Suite 500 Y:1WP1ASEIBUILDING PERMITSWOTICE OF BUILDING PERMIT APPEAL Seattle, WA 98121 121106. DOC (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 01 24 25 for Buildings 101 and 102. Instead of following the correct procedures, the City has processed the Application using the procedures set forth for either Type I or Type III building permits, which are reviewed and approved by staff. See RMC 4-8-080.G. C. The Approval Violated the City's Site Development Plan Review Ordinance (RMC 4-9-200). The Approval violates several provisions of the City's Site Development Plan Review ordinance, including the requirement in RMC 4-9-200.E(1)(b) that Site Plans must conform to existing land use regulations, including the regulations regarding maximum setbacks in the Urban Center — North 1 (UC-N1) zone, RMC 4-2-120E. RMC 4-2-120E requires a maximum setback of five feet for both "Front Yard" and "Side Yard Along a Street." The setbacks shown on the Site Plan and other plans submitted by the applicant for the Building Permit Application are in gross violation of this maximum setback. For example, the setback to Building 102 is approximately 90 feet from Park Avenue and 70 feet from North 8th Street. These setbacks may not be modified except by the Hearing Examiner through the variance process pursuant to RMC 4-9-250.B. See also RMC 4-8-070.H(1) (providing for Hearing Examiner review of and action on "variances associated with a development permit that requires review by the Hearing Examiner"). The Hearing Examiner did not grant a variance from the setback regulations for this project. To the extent that staff is relying on the administrative Interpretation/Policy' Decision issued by the Director on July 17, 2006, this project does not comply with the criteria established by that Interpretation/Policy Decision. Additionally, appellants ASE NOTICE OF APPEAL OF Bueko Gordon LLP BUILDING PERMIT APPLICATION APPROVAL - 8 2025 First Avenue, suite 500 Y:IWPIASEIBUILDING PERMITs1NOT10E OF BUILDING PERMIT APPEAL Seattle, WA 98121 121106. DOC (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 i 20 21 22 23 24 25 and Nicholson have filed a separate appeal of that decision, which has been incorporated above by reference. IV, CONCLUSION For the reasons stated above, ASE respectfully requests that the Hearing Examiner remand the Approval for further proceedings. Dated this day of December, 2006. BUC & RD N LLP By:y mar cZKe.r2q a1 Peter L. Buck, WSBA #05060 Attorneys for Alliance for the South End NOTICE OF APPEAL OF BUILDING PERMIT APPLICATION APPROVAL - 9 Y:IWPWSEWILDIW PERMITSWOTICE OF BU II.DING PERMrr APPEAL 121146.DOC Bucks Gordon LAP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 EXHIBIT A The Approval The Approval (SCANNED FROM OVERSIZED PLAN SHEET FOR APPLICATION NO. 8060540) FILE COPY I understand that the plan check approvals are sub- ject to errors and ornissions and approval of plans does not authorize the violation of any adopted code or ordinance. Receipt of contractor's copy of ap- proved plans acknowledged. BY DATE Permit No. PEPW204 101r59 APPROVAL SHALL. NOT BE CONSTRUED AS THE AUTHORITY TO VIOLATE OR CANCEL ANY PROVISIONS F CODES, ORDINAPICES, OR OTHE ENFO11 CED BY THIS CI�Y EO L-ATIONS DAT@I 06 APPROVE PERMITL " PBPw2.05 10.199 hr Exhibit A Y:'"ASESEXRIB1TSHEM 12-11-06.DOC EXHIBIT B The Application CITY OF RENTON Development Services Division BUILDING 1055 South Grady Way, Renton WA 98055 PERMIT 0 Phone: (425) 430-7200 UST BE PROVIDI APPLICATION IF INOR ER TO PROCSSLL REQUESTED ITEMS ITH S A PL CATIO 1. Property Address: (If new construction, 2. Description of Work to be performed: SIO&W '5TVPY V-CT-AIL 3. Value of Construction: 4. Boeing Job# (If applicable): (If new construction -City will compute value) 5. Tax Assessor Number: O (00 -0030~ 006. Land Use File # (If applicable) 7. Property Owner: Phone: -(?.I 0 S( —I -a$60 $21�{ + STc►1 5T 1� viz. Ci (State: tAS TX Zip: 7SZ; Street Address: dui � v ty � p. 8. Contractor: S D DGAON COPPOFATION OF wt6W0J&Phone: (T:j) --ysq - StreetAddress:2315 IW't 2oa CitylState:l3F VvE�'w Zip: 800 9. State Contractor's License #:St>17'6hG W 1 U-6 N'fi WA INS #: (Must include copy of contractor's license) (Certification #, mfg. home installer 10. Contractor's City of Renton Business License # (Required): SL b 2 D I ? o 11. Interim Construction Lender: Nt'f►� Phone: Street Address: City/State: Zip: 12. Tenant Name (If applicable): N%k Suite/Room #: 13. Contact Person: MAO>r FbvJg)L Daytime Phone: (2100 CO24-1&14 Email Address: m6ower &C-al l t SOA. 60'^^ Fax Number: 14. ALL APPLICANTS MUST COMPLETE THE FOLLOWING: Bldg Sq Ft: Finished: Sprinkler Req (YIN) �' Public Owned (YIN) N Unfinished: 6 Dwelling Count Building Height3- Garage: 4 Story Count . I IBC Type of Const Vj� _ Remodeled Sq. FL O OCC Group AA Flood Zone (YIN) Site Coverage%: i certify that the information on this application furnished by me is true and correct and that the applicable requirements of the City of Renton will be met. I understand that this application is valid for six months from the application date. If a pern is not issued during this time period, the application will become void. This application does not constitute a permit to wor Work is not to commence until the building permit is posted on premises where work is to be performed. Certification is hereby rendered that no work is to be done except as described, and that all work shall conform to the applicable codes. Work in public rights -of -way and/or utility easements is not authorized "r iEzaplication. Applicant Signature: RECEIVED Date: Q:webVw\dcvservlfo=NbuildinglBuildApp.doc SEP 18 20 Rev 6104 Exhibit B BUILDING DIVISION y� � CITY OF RENTON DEPARTMENT OF PLANNINGBUILDING/PUBLIC WORKS DEVELOPMENT SERVICES DIVISION 1055 SOUTH GRADY WAY RENTON, WA 98055 DATE: 12l �' Reid Middleton, Inc 728 134�m St SW, ##200 Everett, WA 98204 REF: PLAN CHECK #: Original (j'" Valuation: 9/-3 / ,s-- 0- Resubm ittal { ) Additional Information ( ) For Single Family Review: Life Safety and Structural:( ) Structural Only---- PROJECT OWNER NAME: p V i 4 / u t! PROJECT ADDRESS: -�' Please furnish a structural plan check for the above -referenced project. The following ply ns and related documents are enclosed for your review: 1. Architectural/Structural Drawings: 2. Structural Calculations: 3. Geotechnical Report: 4. Other: Kindly refer to the plan check number in billing and correspondence. -Thank you. Conklin ,elopment Services Representative -430-7276 #4:reidmidd CDVbld223 10/03 EXHIBIT C Quadrant C Site Plan D�1L 108 RETAIL 13,3K Exhibit C 0 RETAIL 14K 1104 RETAIL 9.2K 102 101 JUNIOR JJNIOR ANCHOR ANCHOR 20,7K 20,4K r\ T 100 ANCHOR 126.8K