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PLANNING & DEVELOPMENT COMMITTEE
Monday, March 23, 2015
3:00 p.m.
1. AGENDA
a. Vuecrest Estates Preliminary Plat (LUA‐13‐000642) Appeal
Planning & Development Committee - 23 Mar 2015 https://renton.civicweb.net/filepro/document/39552/Planning _ Develop...
1 of 2 7/18/2019, 2:15 PM
CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Appeal of Hearing Examiner's Final Decision upon
Reconsideration dated 12/5/2014 regarding the
Vuecrest Estates Preliminary Plat. (File No. LUA-
13-000642)
Meeting:
REGULAR COUNCIL - 05 Jan 2015
Exhibits:
*City Clerk’s letter (12/5/2014)
*Appeal – Van Ness Feldman (11/26/2014)
*HEX’s Final Decision upon Reconsideration
(11/15/2014)
*Reply to Order Authorizing Recon. – Van Ness
Feldman (11/5/2014)
Submitting Data: Dept/Div/Board:
City Clerk
Staff Contact:
Jason Seth, City Clerk
Recommended Action:
Refer to Planning and Development Committee.
Fiscal Impact:
Expenditure Required: $ N/A Transfer Amendment: $N/A
Amount Budgeted: $ N/A Revenue Generated: $N/A
Total Project Budget: $ N/A City Share Total Project: $ N/A
SUMMARY OF ACTION:
EXHIBITS CONTINUED:
*City’s Answer on Reconsideration (10/22/2014)
*HEX’s Order Authorizing Reconsideration (10/21/2014)
*Request for Reconsideration by Van Ness Feldman (10/16/2014)
*HEX’s Final Decision (10/3/2014)
Appeal of the Hearing Examiner’s Final Decision upon Reconsideration on the Vuecrest Estates
Preliminary Plat was filed on 12/5/2014 by Brent Carson, Van Ness Feldman, accompanied by the
required $250.00 fee.
STAFF RECOMMENDATION:
Council to take action on the Vuecrest Estates Preliminary Plat appeal.
Denis Law '
MayorClty ofJL
City Clerk -Jason A.Seth,CMCDecember5,2014
APPEAL FILED BY: Brent Carson, Van Ness Feldman
RE: Appeal of Hearing Examiner's Final Decision upon Reconsideration dated November 15,2014,regarding the Vuecrest Estates Preliminary Plat located at the 4800 Block ofSmithersAve. South(File No. LUA-13-000642)
To Parties of Record:
Pursuant to Title N,Chapter 8,Renton City Code ofOrdinances, written appeal ofthe hearingexaminer's final decision upon reconsideration on Vuecrest Estates land use application has beenfiledwiththeCityClerk.
In accordance with Renton Municipal Code Section 4-8-11 OF, the City Clerk shall notify allpartiesofrecordofthereceiptoftheappeal. Other parties ofrecord may submit letters limited to
support oftheir positions within ten(10)days ofthe date ofmailing ofthe notification ofthefilingoftheappeal. The deadline for submission of additional letters is 5:00 pm, Friday,December 19,2014.
NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will bereviewedbytheCouncil's Planning and Development Committee. The Council Liaison will
notify all parties ofrecord ofthe date and time ofthe Planning and Development Committee
meeting. If you are not listed in local telephone directories and wish to attend the meeting,please call the Council Liaison at 425-430-6501 for information. The recommendation oftheCommitteewillbepresentedforconsiderationbythefullCouncilatasubsequentCouncil
meeting.
Enclosed you will find a copy ofthe appeal and a copy of the Renton Municipal Code regardingappealsofHearingExaminerdecisionsorrecommendations. Please note that the City Councilwillbeconsideringthemeritsoftheappealbaseduponthewrittenrecordpreviouslyestablished.Unless a showing can be made that additional evidence could not reasonably have been availableatthepriorhearingheldbytheHearingExaminer,no further evidence or testimony on this
matter will be accepted by the City Council.
For additional information or assistance,please feel free to call me at 425-430-6502.
Scerely,
on eth
ity Clerk
Enclosures
cc: Council Liaison
1055 South GradyWay•Renton,Washington 98057• (425)430-6510/Fax(425),430-6516•rentonwa.gov
City of Renton Municipal Code; Title IV, Chapter 8, Section 110—Appeals
4-8-110C4
Filing of Appeal and Fee:The notice of appeal shall be accompanied by a fee in accordance with RMC 5-
1-2,the fee schedule of the City. (Ord. 3658, 9-13-1982; Ord. 5660, 5-14-2012; Ord. 5688, 5-13-2013)
4-8-110F: Appeals to City Council—Procedures
1. Standing: Unless otherwise provided by State law or exempted by a State or federal agency, only the
applicant, City or a party of record who has been aggrieved or affected by the Hearing Examiner's
decision and who participated in the Hearing Examiner's public hearing may appeal the Hearing
Examiner's decision.A person(s) will be deemed to have participated in the public hearing process if
that person(s):
a. Testified or gave oral comments at the public hearing; or
b. Submitted any written comments to City staff or the Hearing Examiner
regarding the matter prior to the close of the hearing; or
c. Has been granted status as or has requested to be made a party of record prior
to the close of the public hearing.
2. Notice to Parties of Record:Within five (5) days of receipt of the notice of appeal,the City Clerk shall
notify all parties of record of the receipt of the appeal.
3. Opportunity to Provide Comments: Parties of record may submit letters in support of their positions
within ten (10) days of the dates of mailing of the notification of the filing of the notice of appeal.
4. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional
evidence or testimony shall be accepted by the City Council.The cost of transcription of the hearing
record shall be borne by the applicant. If a transcript is made,the applicant is required to provide a copy
to the City Clerk and the Renton City Attorney at no cost. It shall be presumed that the record before
the City Council is identical to the hearing record before the Hearing Examiner. (Ord. 5675, 12-3-2012)
S. Burden:The burden of proof shall rest with the appellant.
6. Council Evaluation Criteria:The consideration by the City Council shall be based solely upon the
record,the Hearing Examiner's report, the notice of appeal and additional arguments based on the
record by parties.
7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an
application submitted pursuant to RMC 4-8-0701-11, as it exists or may be amended, and after
examination of the record, the Council determines that a substantial error in fact or law exists in the
record, it may modify or reverse the decision of the Hearing Examiner accordingly. (Ord. 5675, 12-3-
2012)
8. Decision Documentation:The decision of the City Council shall be in writing and shall specify any
modified or amended findings and conclusions other than those set forth in the report of the Hearing
Examiner. Each material finding shall be supported by substantial evidence in the record.
9. Council Action Final:The action of the Council approving, modifying or rejecting a decision of the
Examiner shall be final and conclusive, unless appealed within the time frames established under
subsection G5 of this Section. (Ord. 3658, 9-13-1982; Ord.4389, 1-25-1993; Ord.4660, 3-17-1997; Ord.
5558, 10-25-2010)
CITY OF RENTON
NOV 26 2014
1
RECEIVED
2 CITY CLERK'S OFFICE
3
4
5
6
7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON
8
9 RE: Vuecrest Estates Preliminary Plat
APPEAL OF HEARING
10 EXAMINER'S FINAL DECISION
Preliminary Plat UPON RECONSIDSERATION
11 LUA13-000642
12
13
14 The Applicant for Vuecrest Estates Preliminary Plat,by and through its counsel of
15 record, Brent Carson and Van Ness Feldman LLP, files this appeal ofthe Hearing
16 Examiner's Final Decision Upon Reconsideration dated November 15,2014 (the
17 "Decision") and asks the City Council to eliminate or modify Condition 13 ofthe
18 Decision for the reasons set forth below.
19
I.Standing
20 Pursuant to Renton Municipal Code(RMC)4-8-110(F), the Applicant has
21
standing to appeal the Hearing Examiner's Decision.
22
23
24
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 1 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
20 6) 623-9372
I H. Substantial Errors Justifying Elimination or. Modification of Condition 13
2 A. Introduction
3 This Appeal is focused entirely on the requirement of Condition 13 in the
4 Decision. Condition 13 forces the Applicant to extend a public road, Smithers Ave. S.,
5 over adjoining private property that the Applicant does not own or control. The record
6
demonstrates that the owner of that adjoining private property refused to grant the
7
Applicant any rights of access. With the condition, asimposed, the Applicant has no
8
9 ability to develop the Vuecrest Estate's plat.
10 No other subdivision previously approved in this area under the same conditions
11 has been placed in this unfair,unreasonable and illegal predicament. These prior
12 subdivisions each extended Smithers Ave. S. through their properties and ended that
13
public road with a temporary cul-de-sac. The Applicant for Vuecrest Estates likewise
14
proposed to extend Smithers Ave. S. through its property and build a temporary cul-de-sac
15
16 at the end of its property. When the adjoining property to the east develops, Smithers
17 Ave. S. will be extended by that owner to Main Ave.S. (102nd Ave. SE)providing a
18 secondary access route for this neighborhood. Unfortunately,unlike each ofthe prior
19 subdivision approvals, the Hearing Examiner in this case rejected a temporary cul-de-sac
20 and imposed Condition 13, which requires the Applicant,prior to final plat approval, to
21
extend Smithers Ave. S. to the east, across another owner's private property, to connect to
22
Main Ave. S.
23
24
In addition to the disparate treatment of Vuecrest Estates, as compared with other
25 subdivisions in this neighborhood,the Staff in this case misrepresented to the Applicant
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 2 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 that a temporary cul-de-sac would be approved. At the very start ofthe process,the Fire
2 Department's representative stated in writing to the Applicant that: "A proposed
3
temporary cul-de-sac would be acceptable if it meets all required dimensions and
4
5
construction requirements." Exhibit 35,Att. B. The City's senior planner also confirmed
the City's position on the acceptance ofa temporary cul-de-sac:6
7 The City is asking that you provide stub to the property to the•east but are
not asking you to make the improvements to provide secondary access as
g part of the proposed development. However,without the secondary access
a cul-de-sac would be required for fire turn around . . .
9
10
Ex. 35, Att. C. When the City Staffproposed that the Applicant apply for a variance in
order to approve a temporary cul-de-sac, Staff wrote: "it will be supported by the City."11
12 Ex. 35,Att. H.
13 Based on the Staffs clear representations to the Applicant on the acceptability of a
14 temporary cul-de-sac,the Applicant invested hundreds of thousands of dollars to process
15 this preliminary plat and address all issues raised by the City. If a secondary access were
16
going to be required,the Applicant would not have a proceeded with this project. Yet,
17
when the staff report was issued weeks before the Preliminary Plat public hearing,the18
19 Staffreversed course,rejecting the previously accepted temporary cul-de-sac design, and
20 demanding extension ofSmithers Ave. S. to 102 Ave. SE. The Staffs behavior in this
21 matter and their last-minute reversal justifies the City Council to question the credibility
22 of the City's testimony and to strike or revise Condition 13.
23
24
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 3 Feldman up
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
I B. A Temporary Cul-De-Sac Complies with RMC 4-6-060.H.1
2 The Hearing Examiner erred by finding that a temporary cul-de-sac, as proposed
3 by the Applicant, and as originally accepted by Staff, failed to meet the requirements of
4 RMC 4-6-060.H.1. The City's dead end street standards prohibit permanent dead end
5
streets unless a future connection is physically impossible. RMC 4-6-060.H.1. However,
6
7
this code provision, as previously interpreted by City Staff, allows a temporary cul-de-sac
8 to be built if, in the future,that road can be extended when the adjoining property is
g developed.
10 The Applicant did not propose a permanent dead end street. Instead, it proposed a
11 temporary cul-de-sac. To mitigate impacts, the Applicant proposed to install sprinkler
12
systems on every home in the development and to provide an internal circulation road
13
within the plat. Moreover, development of Vuecrest Estates would bring this
14
15 neighborhood one step closer to having a completed secondary access. With Condition
16 13, the plat cannot develop and the opportunity to extend Smithers Ave. S. closer to 102nd
17 Ave. SE is lost.
18 C. If Required, a Variance from the Secondary Access Requirement Should have
been Granted
19
20
As presented above, the temporary cul-de-sac should have been approved without
21 the need for a variance. However, if a variance is required, it should have been granted by
22 the Hearing Examiner. Council should reverse the Hearing Examiner and grant the
23 variance.
24
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 4 Feldman,,,
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 1. The Hearing Examiner Applied the Wrong Variance Criteria.
2 The Hearing Examiner mistakenly applied the street improvement modification
3 provisions set forth in RMC 4-9-250(C)rather than the variance provisions in RMC 4-9-
4 250(B). Had the correct variance provisions been applied,the unrefuted evidence
5
6
presented by the Applicant and its experts should have led the Hearing Examiner to grant
7 the variance from the secondary access requirements.
8 The subject application was for a Preliminary Plat. Preliminary Plats are regulated
9 under Title IV, Chapter 7 ofthe Municipal Code. RMC 4-7-150 establishes the general
10 and minimum street requirements for plats. RMC 4-7-150(D),which imposes the
11 requirements for streets in subdivisions, states that: "The street standards set by RMC 4-
12
6-060 shall apply unless otherwise approved." (Emphasis Added). The street standards in
13
14
RMC 4-6-060 include those provisions in RMC 4-6-060(H) Dead End Streets. Thus, in a
15 plat application,the street standards in RMC 4-6-060 are.applied through the minimum
16 street requirements as set forth in Chapter 7, Section 4-7-150 and may be varied in the
17 preliminary plat approval.
18 The Hearing Examiner is given express authority to grant variances from the
19 requirements for subdivisions, as set forth in Chapter 7,including variances from the
20
street standards. See RMC 4-7-240(1). The Hearing Examiner may grant such a variance
21
22
by following the variance procedures set forth in RMC 4-9-250(B). RMC 4-7-240(A)
23 states: "A variance from the requirements ofthis Chapter may be approved by the
24 Hearing Examiner,pursuant to RMC 4-9-250(B)".
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 5 Feldman u,
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
I The Applicant applied for a variance under RMC 4-9-250(B), seeking a variance
2 from the secondary access standards in RMC 4-6-060,which were being imposed on this
3 subdivision through RMC 4-7-150. Exhibit 35,Att. I. The variance application provided
4
an analysis showing compliance with each of the four criteria under RMC 4-9-250(B)
5
6 including, in particular, criteria RMC 4-9-250(B)(5)(b)which states that"the granting of
7 the variance will not be materially detrimental to the public welfare or injurious to the
g property or improvements in the vicinity and zone in which the subject property is
9 situated." The Applicant never asked for a street improvement modification under section
10 RMC 4-9-250(C). It was an error for the Hearing Examiner to apply the street
11
improvement modification provisions,under RMC 4-9-250(C),when a variance was
12
sought under RMC 4-7-240(A).
13
14
2. The Evidence Supports the Granting of a Variance
15
Witnesses for the Applicant presented unrefuted evidence that the variance criteria
16 had been met and that the variance should have been granted. See Testimony ofMr.
17 Maher Joudi; Testimony of Mr. Carl Anderson; and written testimony of Vincent J.
18 Geglia, Exhibit 35,Att. K.
19 Mr, Vince Geglia, a traffic engineer with Traff )e,provided a report
20
demonstrating that the surrounding streets in this neighborhood carry low volumes of
21
traffic at relatively low speeds and concluding that the risk oftraffic accidents that would
22
23 block access to emergency vehicles is very low. Exhibit 35,Att. K. His report also
24 confirms that the looped road proposed for Vuecrest Estates will provide opportunities for
25 circulation of emergency vehicles within the plat.
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 6 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 Mr. Maher Joudi, a civil engineer with D R Strong Consulting Engineers Inc.,
2 testified that the wide roadways (32.5' ofpavement) and adjacent sidewalks (4.5' each
3
side)provide a total width of over 40 feet for an emergency vehicle to travel from the
4
intersection of 102 Ave. SE and SE 186th Street to the proposed development. He noted
5
6 the minimal on-street parking on these streets, given that each home along this roadway
7 has a garage and off-street parking in their driveway.
g Mr. Carl Anderson, a registered Fire Protection Engineer with The Fire Protection
9 International Consortium, Inc.,presented expert testimony regarding the minimal risks to
10 life and safety posed by this development without having a secondary access and the
11
significant reduction in risk by the Applicant agreeing to install sprinklers in every home.
12
His unrefuted testimony was that the addition of20 lots"would not be a significant
13
14 detriment to public safety based on what's already in the area."
15 The allegation by Staff,that this project would create a dead end street being 2400
16 feet long with 99 homes ori it was fully refuted by Mr. Carl Anderson who demonstrated
17 that only 800 feet of the roadway would have a single access because of internal
18
secondary access loops that are provided offthis street along its length. Mr.Anderson
19
also confirmed that, ofthe 99 homes that Staff alleged to be on this street, 42 of those are
20
on two different streets, S. 47th PL and SE 185th PL, that have no impact on access to and
21
22 from Vuecrest Estates. Furthermore, of the existing 57 homes not on those two streets, 36
23 are within the Stonehaven Plat that has a looped road,which allows for two ways of
24 access or egress within that plat.
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 7 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
20 6) 623-9372
1 These facts, coupled with the significant mitigation of sprinklering these homes,
2 led Mr.Anderson to his expert opinion that there would be no material detriment to public
3 safety by granting the requested variance. That testimony is unrefuted.
4
If the City Council determines that a variance was required,based upon this
5
6
testimony, the City Council should grant that variance and strike Condition 13 from the
7 Decision.
g D. Condition 13 is Arbitrary and Capricious
9 Requiring.Vuecrest Estates to provide secondary access in this case, as imposed by
10 Condition 13,is arbitrary and capricious. The prior subdivisions in this neighborhood
11 were authorized to extend Smithers Ave. S. through their properties to a temporary cul-de-
12 sac. No secondary access was required for these other projects. Vuecrest Estates merely
13
sought to be treated like all other applicants under similar conditions. There is no basis to
14
15 impose on secondary access requirement on this applicant.
16 It is also arbitrary and capricious to require secondary access given the City Staff's
17 express representations to the Applicant that a secondary access would not be required.
18 Those representations were made four separate times. In the second Pre-Application
19 meeting, the City's Fire Department representative stated the Fire Department's position
20
clearly: "A proposed temporary cul-de-sac would be acceptable . . ." Ex. 35,Att. B. This
21
was reconfirmed in the Fire Department's email: "the actual [secondary access]
22
23
connection does not have to be achieved at this time." Ex. 35,Att. C. After the project
24 was put on hold, and there were further discussions with City Staff and the Mayor and the
25 City attorney's office,the Fire Chief elected to withdraw an earlier letter, and the City
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 8 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 informed the Applicant that the application would be processed for approval without a
2 secondary access. According to the testimony of Ms. Higgins, withdrawal ofthe Fire
3 Chiefs earlier letter was done specifically to induce the Applicant to continue processing
4
its plat application. In January 2014,when the City informed the applicant that a formal
5
variance application was required, it was made clear in Ms. Higgins' email that the City
6
7 supported this variance request. Ex. 35,Att. H.
g In light of these representations, Condition 13 should be eliminated and a
9 temporary cul-de-sac authorized.
10 E. Condition 13 Violates RCW 82.02.020
11 RCW 82.02.020 restricts the City from imposing conditions on a plat where there
12 is no nexus and rough proportionality between the condition imposed and the alleged
13
impacts. See City ofFederal Way v. Town & Country Real Estate, LLC, 161 Wn.App. 17,
14
45 (2011). Here,the roads serving this plat are adequate. There is no permanent dead end
15
16 •street proposed,merely a temporary cul-de-sac. This project is providing its fair share
17 contribution to a future secondary access by extending Smithers Ave. S.through its
18 property. This is consistent with the City's approval ofthe prior plats in the neighborhood
19 that were approved under similar circumstances without requiring a secondary access.
20
The obligation in Condition 13 to extend Smithers Ave. S. to the east, across
21
property that the Applicant does not own or control is a heavy burden that far exceeds the
22
23 impacts caused by the project. The added risk to public safety from approval of these 20
24 homes is negligible. The Applicant attempted,in good faith, to acquire rights from the
25 adjoining owner to extend the road to the east, and that owner would not agree to grant
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 9 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 such access rights. Condition 13 is therefore impossible to meet and effectively results in
2 denial of this project. With Condition 13, as written,until the property to the east
3 develops or agrees to dedicate a right-of-way to the City,no reasonable use can be made
4
of the subject property. This raises the potential of a uncompensated taking.
5
6
F.Condition 13 Violates the Applicant's Substantive Due Process Rights
Condition 13 also violates the Applicant's substantive due process rights. A land
7
8 use regulation violates substantive due process where(1)the regulation fails to achieve a
9 legitimate public purpose; (2)the means adopted are not reasonably necessary to achieve
10 that purpose; or(3)the regulations are unduly burdensome on the property owner.
11 Robinson v. City ofSeattle, 119 Wn.2d 34(1992). While the City's proposed secondary
12 access requirement may meet the first prong,it fails the second two.
13
A secondary access is not reasonably necessary. The roads serving this plat meet
14
or exceed City standards. There is ample width for emergency vehicles to access this plat.
15
16 The total road and sidewalk width of over forty feet(40'), the low traffic volumes,the low
17 speeds through this neighborhood, and low probability of blocking accidents and the
18 internal circulation demonstrate that the risk of a fire truck or ambulance failing to gain
19 access to this plat through existing access roads is negligible. To mitigate impacts, every
20
home in this development will have a sprinkler system, designed to quickly and
21
effectively respond to a fire emergency. Smithers Ave. S. will be extended through
22
23
Vuecrest Estates eastward to the adjoining property that fronts on 102nd Ave. SE.
24 Vuecrest Estates moves this neighborhood one step closer to achieving the desire for
25 secondary access. The other plats in this neighborhood were approved without a
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 10 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 secondary access. Expert testimony from the Applicant's witnesses demonstrated that
2 there is no significant increase in risk from the addition of twenty new homes.
3
Regarding the third factor, courts consider the (a)nature ofthe harm to be avoided;
4
b) the availability and effectiveness of less drastic measures; and(c)the economic loss
5
6
suffered by the property owner.Presbytery ofSeattle v. King Cy., 114 Wn.2d 320, 331,
7 (1990). Other nonexclusive factors that may be helpful in the balancing required under
g the third factor include the seriousness ofthe public problem,the extent to which the
9 landowner's property contributes to the problem, the degree to which the regulation solves
10 the problem, and the feasibility ofless burdensome solutions. Id.
11
Here, imposition of Condition 13 effectively results in denial of the project, the
12
loss ofover hundreds of thousands of dollars invested to date in the Project and the loss of
13
14 millions of dollars in lost profit. The City already approved neighboring plats on this
15 same road without requiring a secondary access, so the determination was already made
16 by the City that this is not a serious problem. Moreover,the repeated position of City
17 Staff that a secondary access connection would not be required for Vuecrest Estates
18 confirms that City Staff did not observe this to be a serious issue. The Applicant made a
19
good faith effort to either acquire the adjoining property,to the east or acquire a right-of-
20
ight-of20
21
way through that property,but the adjacent owner would not agree to sell or grant such a
22 right-of-way.
23 There are far less burdensome solutions to address the City's concerns and these
24 have been agreed upon. Every home will have a fire sprinkler. An alley has been
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 11 Feldman up
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 designed to provide a looped system through this plat to provide enhanced
2 maneuverability around the homes. The internal roads have been designed 4 feet wider
3 than the City minimum standards. All of these measures address the City's concern with
4
far less impact on the Applicant.
5
6
III. Relief Requested
For all of the reasons noted above,we urge the City Council to strike Condition 13
7
8 from the Decision.
9 In the alternative,we ask the City Council to revise Condition 13 to allow the
10 Applicant to provide secondary access in ways other than extending Smithers Ave. S.
11 immediately to the east and to the specified intersection.
12 As shown in Exhibit 37, on sheet 1 of 1,there is one parcel of land(the"Easterly
13
Parcel") immediately east ofthe easterly end of Smithers Ave. S. as proposed to be built
14
by the Applicant. Mr. Jamie Waltier testified that the owner ofthis Easterly Parcel will15
16 not sell his property or provide an easement for secondary access. Exhibit 37 shows on
17 Sheet 1 of 1 another parcel of land(the"Southeasterly Parcel")located between Tract`B"
18 and Tract"C"on the Proposed Vuecrest Estates plat and 102nd Ave. SE. Secondary
19 access might be available through that parcel.
20
Condition 13, as currently written,reads:
21
Prior to the recording ofthefinalplat, a secondaryfire access shall be
22 constructed that extends Smithers Ave S to the east to directly connect to
Main Ave S(102nd Ave SE). The extent ofstreet improvements necessary to
23 effectuate this connection shall be determined by the City ofRenton Fire
24 Department in accordance with applicablefire code standards and shall be
the minimum necessary to providefor safe and effective secondary access for
25 fire trucks and emergency vehicles.
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 12 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
20 6) 623-9372
I As written, it appears that this condition can only be satisfied by acquiring a public
2 access easement through the Easterly Parcel and providing a fire access road to the
3
specified intersection. Even if a secondary access could be established between the plat to
4
a location on 102nd Ave. SE through the Southeasterly Parcel, or through some other
5
6
parcel, it would appear that this would not meet the specific terms of Condition 13.
7 If the City Council does not strike Condition 13,which it should do, Condition 13
g should, at a minimum,be revised to read as follows:
9 Prior to the recording ofthefinalplat, a secondaryfire access shall be
constructed providing a second means ofaccessfrom Main Ave S(102"d
10 Ave. SE)to the plat byfire trucks and emergency vehicles. The extent of
11 street improvements necessary to effectuate this connection shall be
determined by the City ofRenton Fire Department in accordance with
12 applicablefire code standards and shall be the minimum necessary to
providefor safe and effective secondary accessforfire trucks and emergency
13 vehicles
14 At least this revised condition will provide the Applicant with some flexibility to seek a
15 secondary fire access route.
16
17
Dated this 2e day ofNovember,2014.
18
19 VAN NESS EL
20Ar;
r .
21 BY:By t C on,W A#16240
22
23
24
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 13 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 I, Jennifer Sower, declare as follows:
2 That I am over the age of 18 years,not a party to this action, and competent to be a
3 witness herein;
4 That I, as a legal,assistant in the office of Van Ness Feldman,LLP, caused true and
5 correct copies of the following documents to be delivered as set forth below:
6 1. Appeal ofHearing Examiner's Final Decision Upon Reconsideration; and
7 2. Exhibits 35 and 37 entered into the record in September 16,2014 hearing; and
8 3. This Certificate of Service
9 and that on November 26, 2014, I addressed said documents and deposited them for
10 delivery as follows:
11
12
Mr. Jason Seth x] Via hand delivery
Acting Deputy Clerk
13 City of Renton Clerk's Office
1055 S. Grady Way
14 Seventh Floor
Renton,WA 98057
15
16 Larry Warren x] Via email
Renton City Attorney x] Via U.S. mail
17 Renton City Hall lwarrenArentonwa.gov
1055 S. Grady Way
18 Renton,WA 98057
19
20 I certify under penalty of perjury under the laws ofthe State of Washington that
21 the foregoing is true and correct.
22 EXECUTED at Seattle,Washington on this 26th day of November, 2014.
23
24
J er Sower, eclarant
25
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 14 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1
2
3
4
5
6
7
8
9 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
10
11 RE: Vuecrest Estates Preliminary Plat FINAL DECISION UPON
12 Preliminary Plat
RECONSIDERATION
LUA13-000642
13
14
15 SUMMARY
16
The applicant of the above-captioned matter has requested reconsideration by letter dated October
17 16, 2014. The reconsideration request is limited to eliminating or modifying Condition No 13 and
also to admitting an exhibit that was erroneously excluded from the administrative record. Condition
18 No. 13 will not be eliminated, but will be modified largely as requested by the applicant. The
19 resume of Carl Anderson is admitted as Exhibit No.38.
20 EXHIBITS
21 In addition to the addition of Exhibit No. 38, the following exhibits are admitted as part of the
22 reconsideration process:
23 Exhibit 39: Order Authorizing Reconsideration, dated October 21, 104.
Exhibit 40: City's Answer on Reconsideration Request, dated October 22,2014
24 Exhibit 41: Sundance response to Reconsideration, dated October 31, 2014.
25
Exhibit 42: Reply to Order Authorizing Reconsideration, dated November 5, 2014.
26 CONCLUSIONS OF LAW AND FINDINGS OF FACT
PRELIMINARY PLAT RECONSIDERATION- 1
I The issues raised in the applicant's reconsideration request are individually addressed below:
2 1. Applicable Variance/Waiver Criteria. The street waiver standards of RMC 4-9-250(C) apply
3 1 to the applicant's request to waive the secondary access requirement of RMC 4-6-060(H)(2). The
applicant argues that the variance criteria of RMC 4-9-250(B)(5) apply because RMC 4-7-240(A)
4 provides that RMC 4-9-250(B) applies to the requirements "of this Chapter". The applicant argues
that since RMC 4-7-150(D) requires compliance with RMC 4-7-060, that this transforms RMC 4-7-5 060 into a part "of this Chapter", specifically Chapter 4-7 RMC. Reasonable minds could certainly
6 disagree as to whether the RMC 4-7-150(D) mandate for compliance with RMC 4-7-060 makes that
provision a part "of this Chapter". Indeed,the fact that RMC 4-7-0-060 is not expressly incorporated
7 by reference into Chapter 4-7 RMC would lead most people to conclude that RMC 4-7-060 is not a
part of Chapter 4-7 RMC and is simply a requirement in another chapter of the RMC that applies to8subdivisions. For the reasons identified in the Order Authorizing Reconsideration, Ex. 39, it is
9 concluded as a matter of law that the street waiver criteria of RMC 4-9-250(C) apply to the
applicant's request to waive the secondary access requirement of RMC 4-6-060(H)(2).
10
2. Failure to Provide Secondary Access Significantly Unsafe. As a finding of fact, it is11determinedthatthefailuretoprovidesecondaryaccesstotheproposedsubdivisioncreatesa
12 significantly unsafe condition. The applicant focuses upon the inconsistencies in the City staff
position to argue that the secondary access is unnecessary. As noted in the Final Decision on this
13 matter, the inconsistencies in the staff position are troubling. However, there is nothing in the record
to suggest or explain why City fire personnel had any reason to overstate the dangers of waiving
14 secondary fire access. In several prior examiner decisions, City staff have often taken highly
unpopular positions counter to extensive public opposition in order provide objective15recommendationsontheapplicationofdevelopmentstandards. There is nothing to suggest in this
16 administrative record that City staff have succumbed to public pressure to require a secondary
access.
17
Despite the odd sounding comments made by Ms. Higgins, it appears likely that staff's vacillation on18thesecondaryroadissuearisesfromthedifficultiesofbalancingpastpermittingdecisions, public
19 safety, recent safety problems (e.g. the wildfires identified by the fire chief) and the applicant's
constitutional nexus/proportionality rights. All these factors pose very complex and challenging legal
20 and policy issues. Given these multiple factors, it is not surprising that staff remained open minded
21
about the secondary access issue until late in the permitting process.
22 In focusing all of its reconsideration attention on the testimony of City staff, the applicant glosses
over the fact that its own fire expert was unable to opine that there would be no safety problems with
23 waiver of the secondary access requirement. As discussed in the Final Decision of this case, Mr.
Anderson was unable to provide any assurance that a secondary fire access was unnecessary for safe
24 and adequate fire response, despite a direct request from the Examiner to provide that assurance. If
25 the City's fire chief takes the position that secondary access is necessary for safe fire response and
the applicant's own fire expert can't dispute that position, it is difficult to see how the applicant can
26 seriously question why a finding is ultimately made that secondary access is necessary for safe fire
PRELIMINARY PLAT RECONSIDERATION-2
I response.
2 3. Unsafe Fire Response is Materially Detrimental to Public; Unsafe Access Not Consistent
3 with Waiver, Modification or Variance Criteria. Unsafe fire access is unquestionably counter to the
public welfare. The applicant takes the remarkable position that unsafe fire access is not materially
4 detrimental to the public welfare, and therefore there is no consistency issue with the materially
detrimental criterion for variances, RMC 4-9-250(B)(5)(b). The applicant asserts that the examiner
5 erred by requiring the applicant to demonstrate that the proposed single access was safe under the
6 materially detrimental standard. See Ex. 39, p. 5. Under the applicant's reasoning, the public
welfare is not adversely affected if the residents of Vuecrest are left with a street system that prevents
7 fire apparatus from reaching them within the time necessary to safely respond to emergencies. The
applicants are essentially arguing that variances to fire access standards should be approved even
8 when such variances would endanger City residents. This is a patently absurd construction of the
9 "public welfare" term and the City's variance standards. If the single access does not provide for
safe fire access as determined by the hearing examiner, there is no question under any reasonable
10 interpretation that as a conclusion of law the applicant's proposal fails to qualify for a variance under
the material detrimental criterion of RMC 4-9-250(B)(5)(b), fails to qualify for a street waiver under
11 the "no detrimental effect" standard of RMC 4-9-250(C)(5)(e) and fails to qualify for a modification
12
under the "safety" criterion (the most obvious, other criteria are unmet as well) of RMC 4-9-
250(D)(2)(b).
13
4. Record Does not Establish that Improved Secondary Access Necessary for Resident Epress.
14 The applicant correctly argues that it shouldn't be responsible for providing for a fully developed
secondary access route and that there should be some flexibility in where the route is located. This
15 position is reasonable. The City's fire chief did not focus his testimony on problems associated with
16 resident egress from the subdivision during emergencies. It is determined as a finding of fact that
there is nothing in the record to suggest that pavement and curb, gutter and sidewalk is necessary to
17 provide safe egress to residents during times of emergency. If the primary access route becomes
unusable during an emergency and residents must leave to protect themselves, it doesn't appear that
18 that they will hesitate to use a dirt road to do so. Given the nexus/proportionality issues associated
19 With requiring the applicant to provide for secondary access beyond its subdivision borders, any
secondary access requirement should be designed to be the minimum necessary to assure for public
20 safety.
21 DECISION
22 The Final Decision of the above-captioned matter dated 10/13/14 is supplemented with the
23 additional findings of fact and conclusions of law made above. Condition No. 13 is also revised to
provide as follows:
24
25 13. Prior to the recording of the final plat, a secondary fire access shall be constructed that
extends Smithers Ave S to the east to directly connect to Main Ave S (102nd Ave SE). The
26 extent of street improvements necessary to effectuate this connection shall be determined by
PRELIMINARY PLAT RECONSIDERATION- 3
1 the City of Renton Fire Department in accordance with applicable fire code standards and
2 shall be the minimum necessary to provide for safe and effective secondary access for fire
trucks and emergency vehicles.
3
DATED this 15th day of November, 2014.
4
6
City of Renton Hearing Examiner
7
8
Appeal Right and Valuation Notices
9
RMC 4-8-080 provides that the final decision of the hearing examiner is subject to appeal to the
10 Renton City Council. RMC 4-8-110(E)(14) requires appeals of the hearing examiner's decision
11 to be filed within fourteen (14) calendar days from the date of the hearing examiner's decision.
Additional information regarding the appeal process may be obtained from the City Clerk's
12 Office, Renton City Hall—7ffi floor, (425)430-6510.
13 Affected property owners may request a change in valuation for property tax purposes
14 notwithstanding any program ofrevaluation.
15
16
17
18
19
20
21
22
23
24
25
26
PRELIMINARY PLAT RECONSIDERATION-4
CITY OF RENTON
1
2
Nov 05 2014 1,11 c
RECEIVED
3 CITY CLERK'S OFFICE
5
6
7 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
8
9 RE: Vuecrest Estates Preliminary Plat
REPLY TO ORDER AUTHORIZING
10 RECONSIDERATION AND
Preliminary Plat RESPONSES THERETO
11 LUA13-000642
12
13
14 This Memorandum replies to the Hearing Examiner's Order Authorizing
15 Reconsideration and demonstrates why the variance requested under Renton Municipal
16 Code(RMC)4-7-240 should be granted. This Memorandum also replies to the two
17 responses to the Applicant's Request for Reconsideration received by October 31, 2014.'
18
I.THE PLAIN MEANING OF THE CITY CODE CONFIRMS THAT THE19VARIANCEPROVISIONSINRMC4-7-240 AND THE VARIANCE CRITERIA
20 IN RMC 4-9-250.B.5 APPLY
21 The Order Authorizing Reconsideration raises questions about the City Council's
22 intent in passing RMC 4-7-240 and whether the City Council intended another code
23 provision, such as the street waiver provision in RMC 4-9-250.C, to be the only means by
24 t These two responses are the October 31,2014 Memorandum from David N.Rasmussen,President,
Sundance at Talbot Ridge HOA and the City of Renton's October 22,2014 City's Answer on
25 Reconsideration Request by Applicant.
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ,,
RESPONSES THERETO 1
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 which relief from the dead-end street standard in RMC 4-6-060 may be granted. The City
2 Council's intent,however, is irrelevant.
3
Rules of statutory construction used by courts in interpreting state law apply in the
4
context of interpreting City ordinances. Griffin v. Thurston County, 165 Wn.2d 50, 55
5
6 (
2008). If statutory language is unambiguous, the canons of statutory construction are not
7 to be used. Id. The meaning of an unambiguous statute must be derived from the code
g language. The Hearing Examiner is not permitted to look for the City Council's intent
9 that might be imputed to the Council or to construe the code in a way that the Hearing
10 Examiner believes will best accomplish some legislative purpose. See State v. Tvedt, 153,
11
Wn.2d 705, 732 (2005).
12
RMC 4-7-240 plainly and unambiguously provides that"A variance from the
13
14 requirements of this Chapter may be approved by the Hearing Examiner pursuant to RMC
15 4-9-250B." The phrase"This Chapter"used in RMC 4-7-240 clearly refers to Chapter 7
16 Subdivision Regulations, codified in Title IV Development Regulations of the Renton
17 Municipal Code. When the City reviews a proposed subdivision ofreal property, the
18 application must meet specific requirements for streets as set forth in RMC 4-7-150
19
Streets—General Requirements and Minimum Standards. RMC 4-7-150.1) expressly
20
21
states: "The street,standards set by RMC 4-6-060 shall apply unless otherwise approved."
22 This language in RMC 4-7-150.D unambiguously incorporates the street standards of
23 RMC 4-6-060 into the provision of Chapter 7. Moreover,by expressly stating that the
24 street standards in RMC 4-6-060 apply"unless otherwise approved,"this code provision
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .,
RESPONSES THERETO 2
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
I offers the opportunity to vary the requirements of RMC 4-6-060 when approving a
2 subdivision. The phrase"unless otherwise approved" cannot be ignored or deemed
3
superfluous. State v. Bunker, 144 Wn.App. 407, 418 (2008). Rather, it demonstrates that
4
approval of a subdivision under Chapter 7 may vary these street standards. The
5
6
mechanism provided to vary any requirement in Chapter 7 is through a variance, as noted
7 in RMC 4-7-240.
g The fact that alternative means may be provided under the City Code to modify a
9 City standard is not unusual, nor does it cause the City Code to be ambiguous. For
10 example, the City's critical area regulations provide multiple options for modifying those
11
requirements. See RMC 4-3-050.N—Alternatives, Modifications and Variances. The fact
12
that the City Code provides a subdivision applicant a means to seek a variance from the
13
14 street standards through a variance under RMC 4-7-240 must be accepted by the Hearing
15 Examiner as an unambiguous requirement to consider and rule on such a request.
16 There is no ambiguity that the Applicant requested a variance under RMC 4-7-240.
17 Exhibit 35, Attachment I is the letter submitted by Maher Joudi entitled"Vuecrest Estates
18 —Variance Request." That letter sets forth the four criteria for a Variance under RMC 4-
19
9-250.13.5.
20
The Applicant demonstrated that these four variance criteria in RMC 4-9-250.B.5
21
22 were met. We again ask the Hearing Examiner to apply the correct criteria, grant the
23 variance, and strike Condition 13.
24
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .
RESPONSES THERETO 3
719 second Avenue site 1150
Seattle, WA 98104
206) 623-9372
1 II. Response to Sundance at Talbot Ridge HOA
2 The October 31, 2014 Memorandum from David N. Rasmussen, President of the
3 Sundance at Talbot Ridge HOA, fails to address any of the arguments presented in
4
Applicant's Request for Reconsideration pertaining to the requested variance, other than a
5
conclusory statement that the request should be rejected. The Talbot Ridge HOA has
6
7
apparently failed to understand the Applicant's request—that the Hearing Examiner(and
8 the City Staff) applied the wrong standard in reviewing the variance request, and that
9 based upon the record before the Hearing Examiner, the variance should have been
10 granted. No further response is needed.
11
12 III. Response to City's Answer on Reconsideration Request by Applicant
13 The first issue presented in the City's Answer on Reconsideration Request by
14 Applicant("City's Answer") concerns whether the variance provisions should apply. The
15 Applicant has already adequately addressed this issue in its Request for Reconsideration
16 and in the reply above to the Hearing Examiner's Order on Reconsideration.
17
The City's second issue, concerning the weight of testimony, deserves a response.
18
In particular,the Applicant strongly disagrees with the City's statement that the Applicant
19
20 provided no reason to examine the credibility of Chief Peterson. See City's Answer at 3.
21 As borne out by the record, Corey Thomas, the Plan Review Inspector for the City
22 of Renton Fire Department, expressly informed the Applicant that a temporary cul-de-sac
23 was an acceptable street design. Exhibit 35,Attachment B ("A proposed temporary cul-
24 de-sac would be acceptable if it meets all required dimensions and construction
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ..
RESPONSES THERETO 4 719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 requirements."); Exhibit 35, Attachment C{"The road section can be 28-feet if you
2 provide the stub road only for future connection, the actual connection does not have to be
3
achieved at this time."). Chief Peterson reversed these written representations by Fire
4
Department representative Corey Thomas when Chief Peterson wrote in his August 15,
5
6
2013 letter that"any request for a secondary access variance will be denied." (Exhibit 35,
7 Attachment E). Chief Peterson reversed himself two months later when, on October 7,
g 2013, he wrote: "I am withdrawing my letter dated August 15, 2013, regarding Vuecrest
9 Preliminary Plat. Please understand that I reserve the right to reissue the letter based on
10 the final plat design." Exhibit 35,Attachment G. Then, in testimony before the Hearing
11
Examiner, Chief Peterson reversed the Fire Department's position yet again, opposing the
12
requested variance. Chief Peterson never acknowledged his October 7 letter and the fact
13
that there was no change in the plat design justifying reversal of his October 7, 201314
15 decision.
16 The inconsistent statements by Chief Peterson and other Fire Department
17 representatives present the fundamental issue of witness credibility. As courts have noted:
18 "a person who speaks inconsistently is thought to be less credible than a person who does
19
not." State v. Allen S. 98 Wn.App. 452, 467 (1999).
20
21
The record also demonstrates that the October 7, 2013 letter was written explicitly
22 for the Applicant to believe that a temporary cul-de-sac would be approved and to induce
23 the Applicant to continue processing its preliminary plat application. Testimony of
24 Elizabeth Higgins. Past misrepresentations of a witness provide further means to judge a
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman «P
RESPONSES THERETO 5
719 Second Avenue site 1150
Seattle, WA 98104
206) 623-9372
I witness's credibility. In the Matter ofthe Disciplinary Proceedings Against Marshall,
2 160 Wn.2d 317 (2007).
3
Given the inconsistent positions taken by the Fire Department over the history of
4
this preliminary plat application, and the Fire Chief's October 7, 2013 letter, the Hearing
5
Examiner should question the credibility of Chief Pederson's testimony. Moreover, the6
7 Hearing Examiner heard from three separate experts, Registered Fire Protection Engineer
g Carl Anderson, Civil Engineer Maher Joudi, and Traffic Engineer Vince Geglia on why
9 the variance would not be materially detrimental to the public welfare.
10 The third issue presented in the City's Answer concerns the Applicant's request, in
11
the alternative,to modify Condition 13 to provide greater flexibility. While the Applicant
12
appreciates the City's support for greater flexibility in Condition 13, the Applicant
13
14 disagrees with the City's demand that a fully improved road section be built by Vuecrest
15 Estates on property it does not own or control.
16 To illustrate the importance of greater flexibility in Condition 13, and to address
17 the City's position on the extent ofroad improvements for a secondary fire access,page
18 one from Exhibit 37 is attached to this Reply Memorandum and marked as "Attachment
19
A". Attachment A shows the two separate parcels of land between the Vuecrest Estates
20
Preliminary Plat and 102nd Ave. SE. For illustrative and argument purposes, these two
21
22
parcels have been marked on Attachment A as Parcel A and Parcel B.
23 To implement the specific language of Condition 13, as imposed in the Hearing
24 Examiner's Final Decision, access would be required through Parcel A. That is because
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman LLP
RESPONSES THERETO 6
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
I Condition 13 reads"Smithers Ave. S shall . . . be extended to the east..." The record
2 demonstrates that the owner of Parcel A is unwilling to sell or grant an easement.
3 Testimony of Jamie Waltier.
4
Hypothetically, a temporary alternative secondary fire access might be able to be
5
6
established through Parcel B to 102nd Ave. SE or through some other route. Such a
7 secondary fire access might provide access to fire and emergency vehicles until a full
g public roadway is established through Parcel A when Parcel A is developed.
9 The City's argument against allowing a temporary fire access and requiring a
10 "fully improved road section"is based on an unsupported claim that the"road will never
11
be,built to standards." In fact,under the linkage and connection requirements in RMC 4-7-
12
150(E)(2) and(4), whenever Parcel A develops, the full road section established for
13
14 Smithers Ave. S will need to be continued from the eastern boundary ofVuecrest Estates
15 to 102 Ave. SE. That is a burden rightfully imposed on the owner of Parcel A. If the
16 variance is denied because ofconcerns for fire access, then Condition 13 should address
17 fire access only and provide Vuecrest Estates with flexibility on achieving that objective.
18
19 IV. Conclusion
20 We urge the Hearing Examiner to reconsider his Final Decision, grant the
21 requested variance and strike Condition 13. Ifthe Hearing Examiner denies the variance,
22 we ask the Hearing Examiner to revise Condition 13 to allow a temporary fire access lane
23 to be established,prior to final plat approval, across any parcel that could provide a
24
secondary means of access for fire and emergency vehicles.
25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .,
RESPONSES THERETO 7
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1
2 Dated this 5th day of November,2014.
3
4 VANANES
SD5By6Bry441624(
7
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25
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman «P
RESPONSES THERETO 8
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 I,Jennifer Sower, declare as follows:
2 That I am over the age of 18 years, not a party to this action, and competent to be a
3 witness herein;
4 That 1, as a legal assistant in the office of Van Ness Feldman, LLP, caused true and
5 correct copies of the following documents to be delivered as set forth below:
6 1. Reply on Order on Reconsideration;
7 2. This Certificate of Service; and
8 3. Attachment A
9 and that on November 5, 2014, I addressed said documents and deposited them for
10 delivery as follows:
11
Mr. Jason Seth x] Via hand delivery12ActingDeputyClerk
13 City of Renton Clerk's Office
1055 S. Grady Way
14 Seventh Floor
Renton, WA 98057
15
Mr. Phil A. Olbrechts x] Via email
16 City of Renton Hearing Examiner polbrechts(&omwlaw.com
17
Larry Warren x] Via email
18 Renton City Attorney x] Via U.S. mail
Renton City Hall
lwarren(cyrentonwa.gov191055S. Grady Way
20
Renton, WA 98057
21 1 certify under penalty of perjury under the laws of the State of Washington that
22 the foregoing is true and correct.
23 EXECUTED at Seattle, Washington on this 5t`day ofNovember, 2014.
24 Ua,gnak
25 Je 'fer Sower, Declarant
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ,,,
RESPONSES THERETO 9
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
ATTACHMENT A
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i8
CITY OF RENTON
OCT 22 2014
1 RECEIVED
CITY CLERK'S OFFICE
2
3
4
5
BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
6
RE: Vuecrest Estates Preliminary Plat
7
Preliminary Plat CITY'S ANSWER
8 LUA13-000642 ON RECONSIDERATION
9 REQUEST BY APPLICANT
10
INTRODUCTION
11
12 This Vuecrest Plat application primarily revolves around a dispute as to
13 whether on extra-long, dead end street should be allowed. The Examiner decided that
14 it should not be allowed.
15 The Request for Reconsideration (Reconsideration) raises three basic points,
16
each of which is without merit. The Examiner should refuse to reconsider his decision,
17
except to rephrase Condition 13.
18
ARGUMENT
19
20 The three points will be rephrased as responses to the Reconsideration.
21 1. The Examiner used the Correct Criteria in Denying the Waiver.
22 The Reconsideration argues that the Examiner erred in denying a Waiver
23 under RMC 4-9-250.C.5, and that the Examiner should have used the variance procedure
24
under
25
Y
City's Answer to Applicant's U j Renton City Attorney
Request for Reconsideration-1 414 1055 South Gradyy WaY
ORIGINAL
Renton,WA 98057-3232
Phone: (425)430-6480
NT Fax: (425)430-6498
1 RMC 4-9-250.8. However, variances are applicable to only certain land use regulations
2
4-9-250 B.1, none of which are street standards. This point was made in the Examiner's
3
decision footnote 3 at page 27. But even if there was a variance available both waiver
4
and variance criteria require a finding that there will be no detriment to the public
5
6 welfare, 4-9-250.B.5.b for variances and 4-9-250.C.5.e for waiver, a fact that was not
7 established by the Applicant. The Reconsideration also refers to the "modification
8 provisions "(page 4 at line 3 citing to 4-9-250.C.) but modification is dealt with in
9 subsection 4-8-250.1), again noted in Examiner decision in footnote 3 at page 27, as
10
unavailing and requires a finding that public safety is met.
11
2. The Examiner Should Not Give Greater Weight to Testimony of the Applicant's
12 Expert than that of the Fire Chief.
13
The Reconsideration incorrectly states, in several spots,that there is
14
unrefuted testimony that the variance criteria had been met, (page 2, line 2;page 5,
15
line 21). These assertions, of necessity, emphasize testimony about lack of detriment to
16
17 public welfare. They were, of course, refuted by the testimony of Chief Peterson about
18 concerns of greater response time and potentially blocked access in case of fire or
19 natural disaster, summarized in the Examiner's decision at page 8. In fact, Chief
20 Peterson's early opposition to this plat was recently reinforced by a wildfire, in the city,
21
that blocked egress for citizens from their homes down a long, dead end access road.
22
Examiner's decision pg. 8)
23
Further,the City has a strongly stated policy against long, dead end roads
24
25 expressed in RMC 4-6-060.H. The policy is clear under RMC 4-6-060.H.2 that any dead
end street over 700 feet in length requires two mean vcc and fire sprinklers for all
City's Answer to Applicant's j Renton City Attorney
Request for Reconsideration-2 ea 1055 South Grady Way
0 Renton,WA 98057-3232
Phone: (425)430- 0
1Vri+0 648Fax: (425)430-6498
1 houses beyond 500 feet. The only exception to that policy is for waiver of the
2
turnaround to be ranted b the CED Administrator withgy approval of the Fire &
3
Emergency Services. There is no provision for waiver of the limitations of the length of
4
the dead end street. There is also no room for an expert witness to argue that the
5
6 policy, so clearly enunciated, can be ignored because in the expert's opinion "there
7 would be no material detriment to public safety." (Reconsideration, pg. 6, lines 6, 7).
8 That opinion not only contradicts City policy but also recent experience from the
9 wildfire. It is-also refuted by the testimony of Chief Peterson, one of the City
10
Administrators charged with enforcing and interpreting the code section in question.
11
There is also no reason shown in the Reconsideration why the Examiner
12
13 should change his opinion that Chief Peterson's testimony was more persuasive than
14 the expert, Mr.Anderson. The failure to state a reason to re-examine credibility alone,
15 should be.enough to carry the day for the City.
16 3. Public Safety Should Not be Compromised by Changing Staff Positions.
17
The essence of this dead end road conflict is public safety. The Examiner is
18
asked, because of conflicting staff messages, to ignore public safety, City policy and
19
State policy and grant a waiver of code that limits the length of the dead end street.
20
21
The Examiner is asked to ignore by implication, RCW 58.17.110(1) (a)that each plat to
22 be approved, must provide appropriate streets and RCW 58.17.110(1) (b)that the plat
23 would be in the public interest. The Examiner is without jurisdiction to do.
24 The Reconsideration advances an estoppel argument without so stating. That
25
is unsurprising because estoppel generally does not run against the State or its
Y
City's Answer to Applicant's j Renton City Attorney
Request for Reconsideration-3 1055 South Grady Way
0 Renton,WA 98057-3232
Phone: (425)430-6480
NT Fax: (425)430-6498
1 subdivisions, such as the City. Estate of Hambelton v. Department of Revenue_
2
Wn.2d.October, 2014 . Estoppel( is even more inappropriate if public safety is
3
clearly implicated, as in this case.
4
5
Applicant can hardly act surprised by Chief Peterson's position. He opposed
6 the plat by letter dated August 15, 2013, and only conditionally withdrew it by letter
7 dated October 7, 2013. He did not state that he would approve the road length if the
8 plat stayed the same. And, subsequently,the Chief's fears were vindicated not only by a
9 wildfire incident in the City but undoubtedly by the OSO landslide.
10
And, applicant knew by State law and City code that approval of the extra
11
length dead end road was not within the power of the mid-level staff. The ultimate
12
13 approval had to come from the Examiner and the Examiner's authority could not be
14 fettered by staff statements. And Applicant should have been aware that any variance,
15 waiver or modification of the road length had to be granted by the CED Administrator in
16 consultation with the Fire and Emergency Services or the Examiner, as the case may be.
17
No statement of mid-level staff can remove the authority of the Examiner and City
18
Administrators to make decisions about this dead end road and the plat itself.
19
The Reconsideration does acknowledge that the applicant was on notice of
20
21 Chief Peterson's opposition to the extra-long, dead end street. But it does not
22 acknowledge that the platting process often involves opposition on one or more aspects
23 of the plat that are ultimately resolved. And such was the case here. Concerns about
24 drainage and set-backs from steep slopes were resolved. The applicant doesn't claim to
25
be naive about the give and take of the process. This preliminary plat has been
Y
City's Answer to Applicant's Renton City Attorney
Request for Reconsideration-4 1055 South Grady Way
0 Renton,WA 98057-3232
Phone: (425)430-6480
NTO Fax: (425)430-6498
1 approved in all respects, with conditions. Once the condition of providing a secondary
2
means of access has been met the plat may proceed. It may not be timely today, but
3
may be tomorrow.
4
MODIFIED CONDITION 13
5
6 The City agrees that Condition 13 can be modified to provide the applicant
7 with more flexibility in providing a secondary means of access. But, that condition
8 should not be limited to access by fire and emergency services vehicles only; it should
9
also state that the secondary access must be a fully improved road section so that it
10
would provide an acceptable road surface for egress for citizens in an emergency.
11
Otherwise, the road will never be built to standards as the "final link" development will
12
13 have legal access to developed City streets that are nearby and will not trigger the City's
14 dead end road limitations and thus would not require the later developer to bring
15 Applicants secondary means of access to City standards. There would remain, only an
16 emergency access road, not a completed standard street section.
17
Alternatively, if the Examiner is not willing to modify the conditions as
18
proposed, then the original condition should remain.
19
CONCLUSION
20
21 For the reasons stated,the Reconsideration should be denied, but Condition
22 13 modified as stated above.
23 DATED THISJ2- day of October, 2014.
24
25
awrence J. War , WSBA#5853
Renton Ci o
City's Answer to Applicant's j Renton City Attorney
a%Request for Reconsideration-5 1055 South Grady Way
Renton,WA 98057-3232
Phone: (425)430-6480
N O Fax: (425)430-6498
1
2
3
4
5
6
7
8 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
9
RE: Vuecrest Preliminary Plat10 ORDER AUTHORIZING
RECONSIDERATION
11 LUA13-000642
12
13
14 The Applicant has requested reconsideration of the Hearing Examiner's decision on the above-captioned
matter. Since the reconsideration request affect parties ofrecord and the interests ofthe City, the parties15ofrecordwhotestifiedatthehearingandCitystaffwillbegivenanopportunitytorespondtotherequest
16 for reconsideration before a decision on the reconsideration request is issued. Any responses must be
based upon evidence that is already in the record. No evidence that has not been recorded at the hearing
17 or entered as an exhibit at the hearing will be considered in the reconsideration request.
18 The Applicant seeks reconsideration of its denial of a variance request to the requirements ofRMC 4-6-
060, which prohibits the Applicant's proposed dead end street. The Applicant raises a challenging19reconsiderationissue, because there are three different sets of variance/modification/waiverl criteria that
20
each arguably apply to the proposed dead end street. The Applicant argues that the variance criteria of
RMC 4-9-250(C) apply. City staff, in the staffreport, asserts that the request is a"modification",which
21 would require application of the RMC 4-9-250(D) criteria. The final decision employed the street
waiver" criteria of RMC 4-9-250(C).
22
23 1 For those not familiar with Renton's variance/modification/waiver standards, RMC 4-9-250(B)(5) allows for the
24 "variance" of zoning standards identified in RMC 4-9-250(B)(1) and other standards in the RMC that expressly
authorize application of RMC 4-9-250(C). RMC 4-9-250(C)allows for the"waiver"of street improvements. RMC
25 4-9-250(D) allows for"modification"of"standards",apparently those standards not subject to the variance or street
waiver process. The Applicant's reconsideration request presents the issue of which of these three types of review
26 processes apply—variance,waiver or modification?
Reconsideration- 1
I The weak point in the Applicant's position is that the RMC 4-9-250(C) criteria only applies if RMC 4-6-
060 is considered a requirement of Chapter 4-7 RMC. RMC 4-7-240(A) provides that the criteria of
2 RMC 4-9-250(C) apply to"the requirements of this Chapter [Chapter 4.7 RMC]". Of course, RMC 4-
3 6-060 is a part of Chapter 4-6 RMC. The Applicant notes that RMC 4-7-150(D) requires compliance
with RMC 4-6-060. Through this cross-reference, the Applicant argues that RMC 4-6-060 should be
4 considered a part of Chapter 4-7 RMC. The Applicant's interpretation raises some troubling issues,
notably:
5
1. For the reasons outlined in Footnote 3 of the Final Decision, the variance criteria
6 advocated by the Applicant would not apply if RMC 4-6-060 were not considered a part of
Chapter 4.7 RMC. This means that a dead end road built as part of a subdivision would be7
subject to variance criteria while the waiver criteria would apply for the same dead end street
8 proposed as part of another type of development proposal. For example, under the
Applicant's interpretation the RMC 4-9-250(C) variance criteria would apply to its proposed
9 dead end since it's part of a subdivision, but if the exact same street configuration were
proposed as part of a college campus or apartment complex, the modification criteria of RMC
10 4-9-250(C) would apply instead. Why would the City Council intend that a different safety
11 standard (as applied in the variance/waiver criteria) apply to the same dead end street simply
because it's part of a subdivision as opposed to another type of development project?
12
2. Street waiver criteria, RMC 4-9-250(C), are precisely designed to address the unique
13 circumstances applicable to street improvements. Why would the City Council intend to
forego these specifically applicable waiver standards for the generic variance standards of
14 RMC 4-9-250(B) because a street was proposed as part of a subdivision?
15 3. Subdivision review is subject to numerous development standards that are not cross-
16 referenced in Chapter 4.7 RMC, such as zoning bulk and dimensional standards and
drainage standards. Why would the City Council intend applicable variance criteria to
17 differ depending on whether or not a development standard is cross-referenced in Chapter 4-7
RMC?
18
A response from the City on the issues raised above would be of particular value, due to the City's19extensiveexperienceintheadoptionandapplicationofthenumerousvariance/waiver/modification
20 criteria in RMC 4-9-250. The City is also requested to explain why it chose to apply the modification
criteria as opposed to the waiver criteria. The applicability ofthe modification criteria as opposed to the
21 waiver criteria is already addressed to some extent in Footnote 3 of the Final Decision. Further, ifthe
issue of which variance/modification/wavier criteria applies has been contested in past examiner
22 proceedings, it would be useful for staffto submit copies of the examiner decisions resolving those issues.
23 ORDER ON RECONSIDERATION
24
25 a Some, but not all, bulk and dimensional standards are expressly subject to RMC 4-9.250(B)criteria and therefore
26 don't have to be cross-referenced in Chapter 4-7 RMC for RMC 4-9-250(B)to apply. See RMC 4-9-250(B)(1).
Reconsideration-2
1 1. Persons who testified at the hearing on the above-captioned matter and City staff shall have until 5:00
pm, October 31, 2014 to provide written comments in response to the request for reconsideration
2 submitted by the Applicant, dated October 16, 2014.
3 . The Applicant shall have until November 5, 2014 at 5:00 pm to provide a written reply to the
4 responses authorized in the preceding paragraph.
5 3. All written comments authorized above may be emailed to the Examiner at olbrechtslaw(d),=ail.com
and Elizabeth Higgins at EHiggins(oMentonwa.gov. In the alternative written comments may be
6 mailed or delivered to Elizabeth Higgins, City of Renton Senior Planner, at 1055 South Grady Way,
7
Renton, WA 98057. Mailed or delivered comments must be received by the City by the deadlines
specified in this Order.
8
4. No new evidence may be presented in the replies or responses. All information presented must be
9 drawn from documents and testimony admitted into the public hearing of this proceeding, held on
September 11, 2014. Applicable laws, court opinions and hearing examiner decisions are not
10 considered new evidence and may be submitted if relevant to a response or reply to the Applicant's
11
request for reconsideration.
12
13 DATED this 21 st day ofOctober,2014.
14 x .
NIT—'k-01hrechis
15
16 City of Renton Hearing Examiner
17
18
19
20
21
22
23
24
25
26
Reconsideration-3
CITY OF RENTON
1 OCT 16 2014 .
2 RECEIVED f [
f
CITY CLERKS OFFICE
3
4
5
6
7 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
8 .
9 RE: Vuecrest Estates Preliminary Plat
10 Preliminary Plat REQUEST FOR
LUA13-000642 RECONSIDERATION
11
12
13
I. INTRODUCTION
14
Pursuant to Renton Municipal Code(RMC)4-8-100(G)(9) and RMC 4-8-
15
16
110(E)(i3),the Applicant for the Vuecrest Estates Preliminary Plat requests that the
17 Hearing Examiner reconsider his Final Decision dated October 3,2014(the"Decision")
18 with respect to the issue of secondary access. The Hearing Examiner failed to apply the
19 correct criteria to consider the variance,which was sought under RMC 4-9-250(B). By
20 applying the wrong criteria under RMC 4-9-250(C)(5),the Hearing Examiner reached an
21
erroneous conclusion in his Decision and in the imposition of Condition 13.
22
23
24
25
REQUEST FOR RECONSIDERATION- 1 van Ness
Feldman up
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
1 The Hearing Examiner should also reconsider his decision to accurately apply the
2 unrefuted testimony by the Applicant's expert,Mr. Carl Anderson', demonstrating that the
3 variance criteria was met, and in particular, that granting the variance would not be
4
materially detrimental to public welfare.
5
The Hearing Examiner also should grant the variance and remove Condition 13 to
6
7 remedy the fraudulent or negligent misrepresentations by City staff that secondary access
g would not be required.
9 Finally,in the alternative,the Hearing Examiner should revise the language in
10 Condition 13 to provide greater flexibility to achieving secondary access in the future.
11
12 II. ARGUMENT
13 A. The Hearing Examiner Should Reconsider the Decision,Apply the Correct
Variance Criteria, Grant the Variance and Eliminate Condition 13.
14
The Hearing Examiner Decision mistakenly applied the street improvement
15
modification provisions set forth in RMC 4-9-250(C)rather than the variance provisions
16
17
in RMC 4-9-250(B). Had the correct variance provisions been applied,the unrefuted
18 evidence presented by the Applicant and its experts should have led the Hearing Examiner
19 to grant the variance from the secondary access requirements. We ask the Hearing
20 Examiner on reconsideration to grant the requested variance and strike Condition 13.
21 The approval considered-by the Hearing Examiner, in the matter, is for a
22
Preliminary Plat. Preliminary Plats are regulated by the City of Renton under Title IV,
23
24 The Examiner also erred by failing to include as an Exhibit in the Decision,Exhibit 38,the resume of
Mr.Anderson,which was offered and admitted(a copy ofExhibit 3 8 as submitted at the hearing is
25 attached).
REQUEST FOR RECONSIDERATION 12 Van Ness
Feldman U
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
I Chapter 7 ofthe Municipal Code. RMC 4-7-150 establishes the general and minimum
2 street requirements for plats. RMC 4-7-150(D),which imposes the requirements for
3
streets in subdivisions, states that: "The street standards set by RMC 4-6-060 shall apply
4
unless otherwise approved." The street standards in RMC 4-6-060 include those
5
6
provisions in RMC 4-6-060(H) Dead End Streets,which were the topic of much
7 discussion at the public hearing and are at the crux ofthe secondary access issue. Thus,in
g a plat application,the street standards in RMC 4-6-060 are applied through the minimum
9 street requirements as set forth in Chapter 7, Section 4-7-150.
10 The Hearing Examiner is given express authority to grant variances from the
11 requirements for subdivisions, as set forth in Chapter 7,including variances from the
12
street standards. See RMC 4-7-240(1). The Hearing Examiner may grant such a variance
13
14 by following the variance procedures set forth in RMC 4-9-250(B). RMC 4-7-240(A)
15 states: "A variance from the requirements ofthis Chapter may be approved by the
16 Hearing Examiner,pursuant to RMC 4-9-250(B)".
17 The Applicant applied for a variance under RMC 4-9-250(B), seeking a variance
18 from the secondary access standards in RMC 4-6-060, which were being imposed on this
19
subdivision through RMC 4-7-150. See Exhibit 35,Att. I. The variance application
20
provided an analysis showing compliance with each of the four criteria under RMC 4-9-
21
22 250(B)including,in particular, criteria RMC 4-9-250(B)(5)(b) which states that"the
23 granting ofthe variance will not be materially detrimental to the public welfare or
24 injurious to the property or improvements in the vicinity and zone in which the subject
25
REQUEST FOR RECONSIDERATION- 3 Ilan Ness
Feldman
719 Second Avenue Suite 1150
57=-7 Seattle, WA 98104
206) 623-9372
1 property is situated." The Applicant never asked for a street improvement modification
2 under section RMC 4-9-250(C). It was an error for the Hearing Examiner to apply the
3 street improvement modification provisions under RMC 4-9-250(C).when a variance was
4
sought under RMC 4-7-240(A).
5
6
At the plat hearing, the witnesses for the Applicant presented unrefuted evidence
that the variance criteria had been met and that the variance should have been granted. In
g particular, these witnesses established that approval ofthe variance would"not be
9 materially detrimental" as provided in RMC 4-9-250(B)(5)(b). See Testimony of Mr.
10 Maher Joudi;Testimony of Mr. Carl Anderson; and written testimony ofVincent J.
11 Geglia,Exhibit 35,Att. K.
12
The Hearing Examiner erred by applying the street improvement modification
13
14
standards in RMC 4-9-250(C). By applying the wrong criteria,the Hearing Examiner
15 mistakenly applied a"no detrimental effect"standard from RMC 4-9-250(C)(5)(e)to the
16 facts in the case. See Decision at 27.
17 The Decision acknowledges that the unrefuted testimony from the Applicant's fire
18 expert, Mr. Carl Anderson,was that the addition of 20 lots"would not be a significant
19
detriment to public safety based on what's already in the area." This expert testimony
20
confirms compliance with criteria RMC 4-9-250(B)(5)(b) that the variance would not be
21
22 materially detrimental to the public welfare. By applying the improper"no detrimental"
23 standard from RMC 4-9-250(C)(5)(e),the Hearing Examiner mistakenly concluded that
24 Mr. Anderson's testimony was not persuasive.
25
REQUEST FOR RECONSIDERATION-4 Vali Ness
Feldman LLP
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
i
I Repeatedly,the Decision, as written, demonstrates that by applying the wrong
2 criteria the Hearing Examiner reached the wrong conclusions in response to the
3 Applicant's variance request. For example,the Decision states that the burden was on the
4
Applicant to demonstrate that the single access"would be safe." Decision at 15. There is
5
no such criterion within the context of the requested variance. The Decision likewise
6
7 asserts that the burden was on the Applicant that sprinklers would reduce the fire hazard
g "to insignificant levels." Again,these conclusions may be appropriate under the
9 modification criteria of"no detriment,"but these conclusions are erroneous under the
10 applicable variance criteria.
11 The Examiner should apply the correct variance criteria and,based on the evidence
12
in this record, grant the variance as requested and strike Condition 13.
13
14 B. On Reconsideration,the Hearing Examiner Should Give Proper Weight to
15
the Applicant's Experts who Established that Granting the Variance Would
not be Materially Detrimental to Public Welfare.
16 On reconsideration,the Hearing Examiner should give proper weight to the
17 testimony ofthe Applicant's experts and should discount the exaggerated and
18
questionable testimony presented by staff. The allegation by staff of a dead end street
19
20
being 2400 feet long with 99 homes on it failed to accurately describe the"on-the ground"
21
conditions. Mr. Carl Anderson's unrefuted testimony demonstrated that only 800 feet of
22 the roadway will have a single access because of the internal secondary access loops that
23 are provided off of this street along its length. Mr. Anderson's testimony confirmed that,
24 ofthe 99 homes that staff alleged to be on this street,42 of those are on two streets, S 47a'
25
REQUEST FOR RECONSIDERATION- 5 Van Ness
Feldman
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
I PL and SE 185`h PL,that have no impact on access to and from Vuecrest, and of the
2 existing 57 homes not on those two streets, 36 are within the Stonehaven Plat that has a
3 looped road which allows for two ways of access or egress within that plat.
4
These facts, coupled with the significant mitigation of sprinklering these homes,
5
led Mr. Anderson to his expert opinion that there would be no material detriment to public
6
7 safety by granting the requested variance. That testimony is unrefuted.
8 In his October 7,2013 letter,Fire Chief Mark Peterson went on record
9 withdrawing his August 15,2013 letter and thereby confirming that a secondary access
10 would not be required for this plat. There have been no.changes in the plat design since
I 1 the time ofthat October 7h letter that would provide Mr. Peterson with a basis to"reissue"
12
his August 15'h letter. In fact,Mr.Peterson has never reissued that letter. Instead, Mr.
13
14
Peterson testified at the plat hearing as if his October 7,2013 letter never existed and that
15 he had never given his authorization on October 74'for the plat review to continue without
16 providing a secondary access. Given Mr.Anderson's unrefuted testimony and the lack of
17 credible testimony by staff,the Hearing Examiner should, on reconsideration, grant the
18 variance, as requested, and strike Condition 13.
19
20 C. The Hearing Examiner Should Grant the Variance and Remove Condition 13
to Remedy the City Staffs Fraudulent or Negligent Misrepresentations that a
21 Secondary Access would not be Required.
22 The record in this case establishes that the City staff expressly represented to the
23 Applicant that a secondary access would not be required. Those representations induced
24 the Applicant to process this preliminary plat through the preliminary plat hearing.
25
REQUEST FOR RECONSIDERATION- 6 Ilan Ness
Feldman
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
I The first representations on this issue occurred during the second pre-application
2 conference. Mr. Corey Thomas, on behalf of the Fire Department,prepared a detailed
3 written memo dated November 13,2012 confirming that a temporary cul-de-sac would be
4
acceptable to the Fire Department. He wrote:
5
Street system shall be designed to be extended to adjoining
6 underdeveloped properties for future extension. It was previously decided
7 to require a 32-foot wide street ifthe street grid could not be extended. If
this future extension can be achieved,the required 32-foot paved street
8 may be reduced to 28-feet ofpavement. A proposed temporary cul-de-sac
would be acceptable if it meets all required dimensions and construction
9 requirements."
10 Exhibit 35,Att. B. (Emphasis added)
11 prior to formally submitting the preliminary plat application, the Applicant sought
12
confirmation of the Fire Department's position that a temporary cul-de-sac would be
13
acceptable. For the second time,the Fire Department expressly represented in a January
14
15 23, 2013 email to the Applicant that a secondary access would not be required:
16 The road section can be 28-feet if you provide the stub road only for
future connection, the actual connection does not have to be achieved at
17 this time. A temporary 90-foot diameter cul-de-sac is acceptable also. . . .
All homes require fire sprinkler systems . . . . The only way to eliminate
18 the fire sprinklers is to complete the road connection to lVd
right away
19
sic]."
20 Ex. 35,Att. C. (Emphasis added) The City's senior planner,Vanessa Dolbee crystalized
21 the City's position that a cul-de-sac would be authorized:
22 The City is asking that you provide stub to the property to the east but are
not asking you to make the improvements to provide secondary access as23partoftheproposeddevelopment. However,without the secondary access
24 a cul-de-sac would be required for fire turn around. ."
25 Id. (Emphasis added)
REQUEST FOR RECONSIDERATION- 7 Van Ness
Feldman LLP
719 Second Avenue Suite 1150572-7 Seattle, WA 98104
206) 623-9372
I After submitting the application, and after receiving the August 15, 2013 letter
2 from Fire Chief Peterson,which indicated that a secondary access would be required,
3 there were detailed discussions with the City. These discussions led to the Fire Chief's
4
letter of October 7,2013; a letter that withdrew his August 15 h letter. The Applicant
5
6
accepted the Fire Chief at his written word that, so long as the final plat design did not
7 change, a secondary access would not be required. The Applicant relied on that letter and
g continued a lengthy and expensive process to answer all staffissues to bring the
9 preliminary plat to hearing, including paying for an additional geotechnical report.
10 Ms. Higgins testified at the hearing that the October 7'h letter,informing the
11 Applicant that a secondary access was not going to be required, was solicited by Ms.
12
Higgins in order to induce the Applicant to continue processing the preliminary plat
13
14
application. Fire Chief Peterson's testimony at the hearing indicates that he had no
15 intention of allowing the preliminary plat to proceed without requiring a secondary access.
16 Tragically,this was never disclosed to the Applicant until the staffreport was issued in
17 September 2014 proposing Condition 13 to require a secondary access.
18 The Hearing Examiner should be deeply troubled by the actions ofCity staff in
19
this matter and by Ms. Higgins' testimony about her soliciting Fire Chief Peterson's
20
October 7th letter to induce the Applicant to support a secondary geotechnical study. The
21
22 behavior of Ms. Higgins and the prior representations of City staff that no secondary
23 access would be required may ultimately support a damages claim against the City by the
24 Applicant for fraudulent or negligent misrepresentation. By confirming that the Fire Chief
25
REQUEST FOR RECONSIDERATION- 8 Van Ness
Feldman up
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
206) 623-9372
I was withdrawing his prior letter, Ms. Higgins and Chief Peterson intended for the
2 Applicant to believe that no secondary access would be required. Yet,apparently,this
3 was all a hoax, and Chief Peterson never intended to allow this plat to be approved
4
without a secondary access. This hoax only came to light weeks before the preliminary
5
6
plat hearing after the Applicant spent tens of thousands ofdollars to reach the preliminary
plat hearing. The Applicant would have ended this application a year ago had the October
g 15a`letter not been issued.
9 The Examiner correctly notes in the Decision at 16 that these actions by staff strain
10 the credibility of the City's testimony. While the Hearing Examiner may not have the
11 authority to find fraudulent or negligent misrepresentation in this matter,the Hearing
12
Examiner has the opportunity to avoid such future claims by the Applicant and to remedy
13
14 the outrageous behavior of City staffby granting the requested variance and striking
15 Condition 13.
16
D. If the Variance is not Granted,The Hearing Examiner on Reconsideration
17 should,in the Alternative,Revise Condition 13 to Provide Greater Flexibility
for Secondary Access.
18
In the event the Hearing Examiner does not agree to reconsider the standards
19
20
applied to the requested variance, or applies the variance criteria but concludes that the
21 variance should not be granted,the Applicant asks the Hearing Examiner to revise
22 Condition 13 to allow the Applicant to provide secondary access in ways other than
23 extending Smithers Ave. S. immediately to the east and to the specified intersection.
24
25
REQUEST FOR RECONSIDERATION- 9 Van Ness
Feldman
719 Second Avenue Suite 1150
57722.7 Seattle, WA 98104
206) 623-9372
1 As shown in Exhibit 37,on sheet 1 of 1,there is one parcel of land(the"Easterly
2 Parcel") immediately east ofthe easterly end of Smithers Ave. S as proposed to be built
3 by the Applicant. Mr. Jamie Waltier testified that the owner of this Easterly Parcel will
4
not sell his property or provide an easement for secondary access. Exhibit 37 shows on
5
Sheet 1 of 1 another parcel of land(the"Southeasterly Parcel")located between Tract"B"
6
7 and Tract"C"on the Proposed Vuecrest Estates plat and 102nd Ave. SE. Secondary
g access might be available through that parcel.
9 Condition 13, as currently written,reads:.
10 Smithers Ave. S. shall connect to S. 48`h PZ and be extended to the east to
11 provide a secondary accessfrom Main Ave. S(102"d Ave. SE) at its
intersection with SE 18e St.
12
As written,it appears that this condition can only be satisfied by acquiring a public
13
access easement through the Easterly Parcel and providing a fire access road to the
14
15 specified intersection. Even if a secondary access could be established between the plat to
16 a location on
102nd Ave. SE through the Southeasterly Parcel,or through some other
17 parcel, it would appear that this would not meet the specific terms of Condition 13.
18 On reconsideration, ifCondition 13 is not deleted based upon the granting of
19 Applicant's variance request, Condition 13 should be revised to read as follows:
20
Prior to recording thefinalplat, a secondaryfire access shall be
21 constructedproviding a second means ofaccessfrom Main Ave S(102'd
Ave. SE) to theplat byfire trucks and emergency vehicles. The extent of
22 improvements for this secondaryfire truck access shall be determined by
23 the City ofRenton Fire Department in accordance with applicable fire
code standards and shall be the minimum necessary toprovidefor safe
24 and effective secondaryfire access.
25
REQUEST FOR RECONSIDERATION- 10 Van Ness
Feldman,,
57722-7 719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
1 III. CONCLUSION
2 The Applicant was induced into proceeding with this plat application by repeated
3 representations by City staff that no secondary access would be required. The Applicant
4 has met its burden to obtain a variance from the secondary access standard. On remand,
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the Hearing Examiner should apply the variance criteria in RMC 4-9-205(B)(5),not the
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modification provisions in RMC 4-9-250(C), give proper weight to the Applicant's expert
8 testimony that established compliance with these criteria, approve the variance and strike
9 Condition 13.
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Dated this 16'h day of October,2014
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12 Vary NESS F MAN
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By:
14 Brent arson,W BA#16240
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REQUEST FOR RECONSIDERATION- 11 Vail Ness
Feldman
57722-7719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
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7 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
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9 RE: Vuecrest Estates Preliminary Plat
10 Preliminary Plat REQUEST FOR
LUA13-000642 RECONSIDERATION
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13 I,Jennifer Sower, declare as follows:
14 That I am over the age of 18 years,not a party to this action, and competent to be a
15 witness herein;
16 That I, as a legal assistant in the office ofVan Ness Feldman, LLP, caused true and
17 correct copies of the following documents to be delivered as set forth below:
18 1. Applicant's Request for Reconsideration; and
19 2. This Certificate of Service
20 and that on October 16, 2014, 1 addressed said documents and deposited them for delivery
21 as follows:
22 Mr. Jason Seth x] Via hand delivery
23 Acting Deputy Clerk
City ofRenton Clerk's Office
24 1055 S. Grady Way
Seventh Floor
25 Renton, WA 98057
CERTIFICATE OF SERVICE- 1 Van Ness
Feldman LLP
719 Second Avenue Suite 1150
Seattle. WA 98104
206) 623-9372
1 Mr. Phil A. Olbrechts x] Via email
City of Renton Hearing Examiner2 polbrechts(a,amwlaw.com
3
Larry Warren x] Via email
4 Renton City Attorney x] Via U.S. mail
5 Renton City Hall
1055 S. Grady Way lwarren(&,,rentonwa.gov
6 Renton, WA 98057
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I certify under penalty of perjury under the laws of the State ofWashington that
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the foregoing is true and correct.
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EXECUTED at Seattle,Washington on this 16t'day ofOctober, 2014.
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J fer Sower, Declarant
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CERTIFICATE OF SERVICE-2 Van Ness
Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
206) 623-9372
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8 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
9
10 RE. Vueerest Estates Preliminary Plat
FINAL DECISION
11 Preliminary Plat
LUA13-000642
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14
SUMMARY
15
16 The applicant requests preliminary plat approval, street improvement waiver and possibly a critical
area exemption for a 20-lot residential subdivision. The street wavier is to allow a dead-end road in
17 excess of 700 feet. The critical area exemption is for placing a drainage line across the face of a
steep slope. The preliminary plat is approved. The street improvement waiver is not approved. The
18 applicant was unable to establish that the street waiver would not result in an unsafe fire response
19 condition for residents of the proposed subdivision.
20 The critical area exemption is not considered to be consolidated with the preliminary plat and street
modifications of this proposal. The staff report at no point identifies the exemption as consolidated
21 with the preliminary plat application. The proposal summary makes no mention of the critical area
22 exemption. However, Page 17 of the staff report recommends approval of a critical areas exemption,
suggesting that consolidation was intended. If the exemption was intended to be consolidated with
23 the preliminary plat application, there is insufficient information in the record to assess its merits.
RMC 4-3-050(C)(5)(d)(iv) requires a geotechnical report to be prepared that assesses compliance
24 with the exemption criteria and to also propose mitigation. No reference to any such report is made
in the staff report and no such geotechnical report could be found in the administrative record.25 Impacts of the proposed stormwater vault and retaining walls are assessed in the geotechnical
26 reports, but nothing else in the geotechnical reports could be found that specifically addressed the
drainage line or the exemption criteria. Given the absence of this needed information and the fact
PRELIMINARY PLAT- 1
1 that the staff report does not clearly identify the administrative exemption decision as consolidated
for hearing examiner review, the exemption decision will not be considered as consolidated with the2preliminaryplatandstreetimprovementmodificationrequest.
3
4 TESTIMONY
5
6 Staff Testimony
7
Elizabeth Higgins, Senior Planner,-City of Renton
8
Ms. Higgins described the project as a proposed 20 lot single family development in South Renton.9 The original application had 21 lots, but was subsequently revised to 20 lots. The proposal as
10 submitted generally meets the Renton municipal code with the exception of street standards relating
to access. The applicant has submitted a request for a street modification. There are environmentally
11 sensitive areas on or near the property and critical areas regulations apply. The project conforms to
the critical areas code.
12
13 The 9.3 acre site is south of Carr Road and east of Talbot Road in south Renton. The project is in an
area of residential development with various densities. To the east are condos at higher density. To
14 the south and southeast are lower density residential developments. Densities to the north and
northeast are consistent with the project.
15
The project was originally an undeveloped portion of an existing condo development. The site is16isolatedfromthecondosbyasteepslope. The project was submitted in 2013 but was placed on
17 hold for additional geotechnical reports due to concerns about the slope. Three separate geotechnical
reports were submitted by three individual firms. New notification was sent out. The Environmental
18 Review Committee added six additional conditions of approval. No appeals were filed.
19 The site has protected slopes on the west side. Slopes are 45 degrees or more. The site plan was
20 revised to eliminate a rockery retaining wall on the top of the slope and stormwater facilities were
moved farther away from the slope. The project will have a 10-foot No Disturb area on the top of
21 the slope.
22 There are wetlands on site. The depression wetlands are Category II wetlands. These require a 50
23 foot buffer. The project proposes to do buffer averaging. Properties adjacent to the project will be
included in the buffer. Up to 50% of the buffer width will be reduced in places. The north wetland
24 abuts a portion of the wetland that is part ofthe Stonehaven wetland reserve. Stream studies indicate
there is a stream that is nearby, but not within the project site. The water collects across the subject
25 property but the stream is not on it. The property was vacant except for a temporary cul de sac.
26 The property has a mix of deciduous and evergreen trees. The Applicant submitted a tree
PRELIMINARY PLAT-2
I replacement plan. There are 101 significant trees on the property. These are trees measuring 6" in
diameter. 54 trees will be removed for streets and alleys. There are be 120 trees in critical areas2buffers, all will be retained. 42 of the significant trees will be retained. 23 significant trees must be
3 replaced with 140 2"trees. All of the new trees will be planted in Tract C.
4 1 The site has three different zoning classifications. They are R-14, a medium density residential
development near the condos, an R-1 zone, a low density designation in the sloped area, and 6.065acresofR-8 in the upper portion. The 20 lots are in the R-6 zone. After deduction for critical areas
6 and roadways there are 4.57 developable acres. With 20 lots the resultant density is 4.23 du/acre,
which is above the 4 du/acre minimum.
7 There will be 20 single family residential lots of 4,500sf to 8,000sf. Tract A is a stormwater tract.
Tracts B and E are wetlands tracts. Tract C is the tree replacement area. Tract D is an open space
8 tract. Tract F is a Native Growth Protection Area on the slope. There will be an alley to provide rear
9 access to abutting lots.
10 Staffrecommends formation of a homeowners association to have equal undivided ownership of the
tracts, alley and private road. Another recommended condition of approval (Staff Report#9) lots 17-
11 20 would provide easements to other lots to allow alley to provide through access. With respect to
12 access, Applicant has requested a modification to street standards. Renton requires a secondary
access when primary access is a dead end street over 700 feet in length. Staff does not support the
13 modification request because it does not meet the test that there is no physical way a second access
can be achieved. There are no physical constraints that cannot be overcome. They believe the second
14 access is possible. They recommend a condition of approval requiring construction of a second
15 access prior to recording of the final plat.
16 A portion of the project is included in the Talbot Urban Separator which imposes requirements for
development. With a single exception, these requirements don't apply because the project does not
17 propose development within the Urban Separator. This exception is the drainage facility which will
extend from the top of the slope through the Urban Separator. Vegetation removed during18installationofthestormwaterconveyancesystemmustbereplaced.
19
With respect to drainage, the stormwater system has been revised from the original plan to minimize
20 the impact to the critical slope. Discharge from the stormwater vault will be within a closed 12"
pipe down the slope. Staff recommends a condition of approval requiring a stormwater easement.
21
22 The project meets compliance with the City's Comprehensive Plan and development regulations, if
the required conditions of approval are met. Staff recommends the Applicant submit a detailed
23 landscape plan. The project complies with the critical areas regulations if the conditions of approval
from Environmental Review Committee are met. With the exception of the street requirement, the
24 project meets the requirements of the subdivision code and the Talbot Urban Separator. In terms of
public services (police, fire, parks, schools), resources are available to provide services to the
ZS property. Students would need to be bussed to school. There are sidewalks available for safe
26 walking routes to bus stops. A certificate of water availability would be required by the Soos Creek
PRELIMINARY PLAT- 3
I Water District. A stormwater easement is required to demonstrate that downstream systems would
2 be available. Staffrecommends approval ofthe project with conditions.
3 In response to a question by the Hearing Examiner, Ms. Higgins stated the Applicant would have to
negotiate an agreement with adjacent property owners to acquire an access easement or purchase
4 1 land. The Applicant does not own the property the City will require for secondary access. Staff
stated they would not allow the Applicant to record the final plat without this secondary access, in5theeventtheApplicantwasunabletopurchasetheadjacentpropertyoracquireaneasement.
6
Applicant Testimony
7
8
Maher Jouei, ER Strong Consulting Engineers,Applicant's Agent
9 Mr. Jouei thanked Staff for the thorough review of the project. The Applicant concurs with the
majority of the report with the exception ofthe secondary access.
10
Public Testimony
11
12
Owen Reese
13 1 Mr. Reese is a civil engineer with Aspect Consulting. He is representing the Campen Springs Condo
Association. He was hired to review the proposed development. Harbor homes approached the
14 Condo Association with respect to the stormwater lines. The Condo Association is on the downside
of the steep slope to west of the proposed development. The Condo Association had questions about15stormwatermanagementandprotectionofthesteepslope. Harbor Homes and their agents have
16 been very open and helpful. The Condo Association issued a letter of intent to allow an easement for
stormwater lines. The Condo Association and Harbor Homes are working together cooperatively.
17
The Condo Association has identified several minor issues along the western line of lots. Harbor
18 Homes has been very responsive. The Condo Association is providing testimony today to allow
19 Staff and the Hearing Examiner to hear their issues.
20 There are no current retaining walls proposed. The Condo Association is requesting the City to
allow only engineered retaining walls to be constructed on the proposed development, rather than
21 just erosion control structures. They further request any new fill should be free draining structural
22 fill and not native soils. The native soils will not provide the needed results with respect to drainage.
23 The back yards of western lots slope towards the steep slope. At one point there was a proposed
interceptor trench. The Condo Association requests the City require Harbor Homes to minimize the
24 extent of the western lot that drains to the slope. Whatever does drain there,please make sure it does
25
so in a dispersed manner.
26 The stormwater tight line should be designed using sound engineering practices in a straight line
PRELIMINARY PLAT-4
I with high density plastic. The Condo Association is requesting anchors along only the top and
bottom of the pipe rather than along the whole length as the City recommended. This will keep the2pipeinplaceeveniftheslopemoves. The anchors should be designed to allow for tree fall and soil
3 movement. The water should be slowed down before entering the Condo Association property. The
pipeline should be constructed at the top and pulled down the slope rather than moving it up hill.
4
An engineering geologist from Aspect Consulting reviewed the site. With respect to the ephemeral5stream, the stream is in a well-defined channel outside the wetlands and then disperses down the
6 slope, depositing sediment on the downhill side in an alluvial fan. This stream is prone to
movement. The concern is that if the stream changes its channel, it may deliver sediment
7 downstream and overwhelm the Campen Springs stormwater system. The Condo Association is
asking Harbor Homes to monitor the stream and create a more defined channel. In response to
8 questioning from the examiner, Mr. Reese responded that the proposal will not exacerbate the
9 condition ofthe stream.
10 Eric Hanson
11 Mr. Hanson testified he understands Vuecrest will be developed. He believes the existing proposal
12
is not consistent with the character of the area or Renton. He stated this proposal should be denied
for two reasons. The first reason is because of the variance to extend Smithers Road to another dead
13 end. The second reason is he feels the proposal gives only meager concessions to critical areas.
14 Mr. Hanson noted the Renton municipal code requiring a secondary access. He stated the road is
needed for emergency services and traffic flow. He supports the Staff requirement for secondary15access. He does not feel mitigation is adequate because the road is 2,400 feet from the main arterial,
16 more than three times farther than code requirements. He stated the deviation is major. He is not
surprised the Renton Fire Department and Community Development staff does not support the
17 deviation. He stated the traffic will double or triple on local streets due to the proposed
development. He is concerned about pedestrian safety. There are no engineering or geographical
18 reasons for the variance. The only reason is that the Applicant does not own the adjacent property.
19
Mr. Hanson's second concern is environmental sensitivity. The project has steep slopes, a wetland
20 and a stream. He stated the environmental review identified 401 significant trees. Removal of the
trees would create erosion and slide risks. The existing vegetation also sustains deer in the area. The
21 proposed mitigation for the trees is not sufficient. Only 65 trees would be replaced or retained. The
22 emphasis should be on retaining the trees rather than replacing them with less robust trees. He
acknowledges 140 additional 2" diameter trees will be planted. Immature trees are a poor substitute
23 for existing trees and vegetation. They won't effectively prevent erosion.
24 1 David Rasmussen
25 Mr. Rasmussen is the president of the Sundance Talbot Ridge Homeowners Association. He
26 concurs with Mr. Hanson's comments and believes they represent those of the HOA. He is
PRELIMINARY PLAT- 5
I concerned about water access during an emergency situation. Sundance abuts green lands on three
2 sides. There are plans to develop one of these sides. His concern with water flow is the chance of a
wild fire on the greenbelt. He's concerned there will be insufficient access for emergency fire
3 protection. Additionally,there must be secondary access.
4 Jim Condelles
5 Mr. Condelles represents the Reserve at Stonehaven Homeowners Association which is adjacent to
6 the Sundance association. Mr. Condelles objects for the same reasons as Mr. Rasmussen and Mr.
Hanson. Secondary access should be required. There is a bottleneck on a dead end road.
7
He urges the development be scaled back. He stated he doesn't feel the wetlands buffer averaging is8effective. He wants to see full 50 foot setbacks adjacent to all parts of the wetlands. He notes the
9 varying seasonal character of the wetlands. He stated the small change to the project from the
original proposal is insufficient to protect the critical areas. The character of the northwest is being
10 eroded by piecemeal development. He noted all the types of wildlife he's seen on this property. He
also noted the old growth evergreen trees. This is a virtual rainforest in an urban area that serves as a
11 wildlife corridor. He wants to see a rethinking of the scope.
12 Ellen Brighten
13
Ms. Brighten owns two adjacent properties. She owns property in Campen Springs. She has not
14 been notified of the project. She also owns at Talbot Park. She regularly sees deer. She also stated
there are water problems. The springs at Campen Springs move. She is concerned about drainage15issues. Ms. Brighten displayed several pictures of the area(Ex. 34).
16
Travis Martinez
17
Ms. Martinez is the president of the HOA for Talbot Park due north of Campen Springs. They have18awaterproblemthatresultsin $50,000 worth of damage per year due to the springs. They are very
19 concerned stormwater issues will increase. They have received no guarantee that they will not be
adversely affected or reimbursed when they are affected by project related stormwater.
20
Ron Hensen
21 Mr. Hensen lives on Smithers Avenue. Smithers Road is adjacent to the proposed development. He
22 has owned the property for 12 years. He has maintained the property for years. He recounted the
development history of the area. He knew development would happen on this property eventually.
23 He is concerned about his property values and safety. There is a 50 acre Department of Natural
Resources property to the north that is currently for sale. Altogether, there was a single point of
24 access for a couple dozen homes. In the near future, that number could be 150 homes on the same
25 single point of access. This will result in more traffic and a reduced quality of life for existing
residents.
26
PRELIMINARY PLAT- 6
I There is an unnoted existing drainage out of the wetlands. There used to be another smaller stream
that was obliterated by the traffic circle. The stream can be observed about 8-9 months of the year.2 During rain events, the system is overwhelmed and water overtops into the stormwater drainage
3 system. There is a subsurface hydrologic connection that connects the wetlands. Proposed Lot 17 is
a seep that will not support a residential development. He is in support of a stormwater system that
4 proactively drains this development and future developments.
Mr. Hensen also described abundant wildlife in the area.
5
6 Staff Response
7 Larry Warren, Renton City Attorney
8 The Hearing Examiner asked the City Attorney if there is a proportionality problem in that the
9 Applicant is being asked to provide secondary access now when it should have been provided by
past developments for developments farther down the road. Are the Applicants being asked to create
10 an improvement that mitigates more than their own impact?
11 In response, Mr. Warren stated he had not considered the question in that framework. He stated he
12 did not feel there was a proportionality problem because each future development along the line
would be required to do their part.
13
The Hearing Examiner asked if the City was considering a latecomers agreement to allow the
14 Applicant to be reimbursed for a portion of the costs when later development took place. Mr.
Warren stated the Applicant must request a latecomers agreement. He stated there was only one lot15betweentheproposalsiteandtheconnectionpoint. The expense should not be huge.
16
Elizabeth Higgins
17
Ms. Higgins addressed the request by Mr. Reese related to retaining walls. She stated mitigation
18 measure #4 from the Environmental Review Committee requires a building permit for retaining
19 walls for any proposed wall,regardless of location or size.
20 Steven Lee, City of Renton Engineer
21 Mr. Lee responded to Mr. Reese's recommendations. He stated heconcurred with Mr. Reese. He
22 agreed that all of Mr. Reese's suggestions should be implemented as conditions of approval. He
wanted to add one further condition. With respect to the stormwater pipe on the slope, he suggests
23 the addition of a slip joint at the base of the hill to allow for movement.
24 Mr. Lee stated he felt the project will not affect downstream stormwater. He noted other projects
have been installed on steeper slopes than this. These prior projects have been successful in
25 avoiding erosion. The closed tight line stormwater pipe will eliminate erosion impacts.
26
PRELIMINARY PLAT- 7
1 In response to the Hearing Examiner, Mr. Lee stated he was unaware of the small stream that used
2 to be in the location of the temporary cul de sac. The post project result will be a reduction in
surface run off from the project than current conditions. He stated slope stability will be improved
3 post project.
4 Mark Peterson, Chief, Renton Fire Department
5 In response to the Hearing Examiner, Mr. Peterson stated the fire department is opposed to the street
6 modification. He feels the length of the street is too challenging to service to the area by fire
apparatus. He stated last year there was a wildfire traveling along the electric easement in a nearby
7 neighborhood. This neighborhood had one access point that was cut off by the fire. The fire
department could not get in to help residents and residents could not evacuate. Mr. Peterson is also
8 concerned about the neighborhood being cut off in a seismic event. City code requires a secondary
9 access in roads over 700 feet. The fire department cannot maintain adequate response times to the
neighborhood. Without secondary access, an additional minute is added to the response time to this
10 neighborhood.
11 Applicant Response
12 Brent Carson, Van Ness Feldman, Applicant's Agent
13
The Applicant disagrees with the Staff with respect to the street modification. In response to Mr.
14 Peterson, Mr. Carson noted the Renton Fire Department has sent the Applicant a letter stating they
would not support the project without a secondary access. He further noted the Fire Department had15rescindedthatletter, with the condition that they could reinstate the letter at any time based on final
16 Plat design. He noted that the fire department reinstated the letter even though there had been no
change in fire access since the time the letter had been rescinded.
17
Mr. Carson introduced a letter into the record (Ex. 35) with attachments addressed to the Examiner.
18 This packet included a letter from the Applicant's traffic consultant. Mr. Carson called several
19 witnesses. Mr. Carson introduced two further exhibits (Ex. 36 and Ex. 37), the resume of Mr. Jouei
Maher and a set of site plans.
20
Maher Jouei, ER Strong Consulting Engineers, Applicant's Agent
21
22 Mr. Jouei stated the Vuecrest Estates project drainage is tight lined to Campen Springs. Talbot Park
drainage goes a different direction than the project drainage. The Vuecrest system will collect all
23 impervious surface drainage and send it to Campen Springs.
24 Mr. Jouei stated the City sent them a letter stating a proposed temporary cul de sac might be
25 acceptable under certain conditions including a stub road for future connections. They would not be
asked to construct the actual connection. The pre-application meetings did not suggest they would
26 be required to provide a completed secondary access. On July 3, 2014 the Applicant received
PRELIMINARY PLAT- 8
I preliminary comments with an email note that said the situation regarding the second access had
changed. They subsequently were told they could not construct the project as proposed because the2FireDepartmentwouldnotsupporttheprojectwithoutsecondaryaccess. That letter was rescinded
3 in October 2013. In February 2014, they received a letter from Ms. Higgins that stated the City
would support a street modification to permit the project to go forward without secondary access.
4 The City did not mention they would not support the modification until August 2014. There has
been no material change to the layout since October 2013. Mr. Jouei stated the project is a part of
5 the solution by construction a stub for future access. There is one undeveloped property left before
6 the grid system is completed.
7 Mr. Jouei stated the project complies with the road dimension requirements in the code. He stated
emergency vehicles can access the project even in worst case scenarios with cars parked on both
8 sides. The road curvatures meet the requirements. There is a loop road in Stonehaven that provides
9 secondary access.
10 Mr. Jouei reviewed the variance criteria in the street modification. He stated the project suffers from
unique circumstances because Talbot Ridge and the Reserve at Stonehaven were approved with the
11 same variance the current Applicant proposes. He stated the variance will not be materially
12 detrimental to the public welfare because the roads meet the dimensional requirements. He noted the
additional trips from Vuecrest would result in 1.6 additional vehicles per minute in the PM Peak
13 Hour. These roads are all LOS A with no accident history. He stated the project benefits the welfare
of the public by connecting the grid system. The project has an internal loop system with the alley.
14 The alley will be designed to accommodate emergency vehicles. The project will not ask for any
special considerations beyond those already granted to existing developments. The proposal is the15minimumrequestedbytheCitybyprovidingastubroad. The project provides what the City asked
16 for initially. Nothing has changed since then.
17 Mr. Jouei noted there are not many on-street parked cars. All area homes include two car garages for
18
every lot to accommodate parking.
19 Jamie Waltier, Hansen Homes
20 Mr. Waltier thanked Staff for their efforts on the project. He stated the neighbor to the east is not
interested in selling his property. They will not be able to purchase a right of way or easement. Mr.
21 Waltier stated the City had supported the stub road without a secondary access. They've incurred
22 significant costs in designing this project they would not otherwise have spent if the City has been
consistent on their requirement for a secondary access. As is, the project is not financially viable
23 with the requirement for a secondary access.
24 Carl Anderson, Fire Protection Engineer, Applicant's Agent
25 Mr. Anderson discussed the second access issue from an emergency access perspective. He also
26 suggested mitigation measures. With respect to the public welfare, the proposal is at the end of a
PRELIMINARY PLAT- 9
I dead end. It does not materially affect the existing homes in the area. For the new plat, there are
mitigating measures that can be taken. The Applicant is intending to put in a temporary cul de sac to2Citystandards. The internal alley will also provide emergency access, though it is not intended as a
3 primary emergency access. Although not specifically spelled out in the variance request, the
intention is to put fire sprinkler systems in each proposed home. In terms of mitigating fire response
4 to the area, a fire sprinkler system reduces the need for fire responses. The homes will not require
full structural responses. The Staff Report mentions 99 homes are accessed on the dead end. The
5 dead end will be 2,400 feet. However, the actual road network has internal secondary means that
6 reduces the housing served by only the dead end itself. Stonehaven has an internal looped road that
would allow another access into Vuecrest. Only about 800 feet of roadway will be single access.
7 The 2012 International Fire Code Appendix D-107 addresses substitution of fire sprinklers rather
than the provision of secondary fire access. This appendix was not adopted in Renton, though it
8 does support the variance.
9
In response to Mr. Carson, Mr. Anderson stated he is familiar with the International Fire Code
10 Section 503.1.2 which reads the Fire Marshall may require secondary access based on a range of
conditions. Mr. Anderson stated the project does not meet any of the conditions in the
11 aforementioned Fire Code Section. This project will eventually result in improved access.
12 Hearing Examiner asked Mr. Anderson if he is testifying that he has no fire safety concerns over
13 the fact that this subdivision only has one access point. Mr. Anderson responded, "I don't
believe that the addition of Vuecrest is a significant detriment to public safety based on what's
14 already there in the area." The Hearing Examiner stated, "There are a couple points along that '/2
mile dead end route where if the road was blocked there'd be no way for the fire department to15gettothesubdivision, isn't that correct?" Mr. Anderson responded "That's correct." The
16 Hearing Examiner, "What about the Fire Chief Peterson's concern about if you had people
evacuating quickly that would make it more difficult for the Fire Department to get to the site, is
17 that a problem here at all, really?" Mr. Anderson responded "It could be a concern, but in the
type of isolated events you'd run into, is the likelihood that these additional 20 homes create a
18 significant additional detriment to public safety? I wouldn't think that number would be
19 detrimental, particularly given that this is another piece toward making an eventual connection,
which corrects an existing 1,700 foot dead end."
20
21 Brent Carson, Van Ness Feldman,Applicant's Agent
22 Mr. Carson stated his letter goes into detail regarding each of the aforementioned issues. He wanted
23 to highlight a few points. He stated the 11th hour switch in the City's position. The City's code is
clear related to pre-application meetings when submitting long plats in order to avoid the
24 circumstance where applicants are not clear about what codes will apply. The first pre-application
25 stated a permanent dead end street is not approvable given the City code. The second pre-
application meeting allowed a temporary cul de sac with a future stub to allow for eventual
26 completion of a loop system. The Code says once the pre-application is done, the applicant should
PRELIMINARY PLAT- 10
I proceed in concert with the City's advice. The Applicant has done that.
2 With respect to Mr. Peterson's withdrawal of his letter, this is no minor thing. Mr. Peterson stated in
3 August 2013 that a secondary access would be required for approval. Mr. Carson was hired at this
point. He spoke to the City Staff and the Mayor which led to Mr. Peterson's withdrawal of the letter.
4 Mr. Peterson stated he could reissue the letter based on the final design. The design was not changed
and Mr. Peterson did not reissue the letter. Mr. Peterson desires to have a secondary access but has5notproventheneed. Mr. Carson noted Ms. Vanessa Dolby of the City of Renton stated they would
6 not need to provide secondary access. Ms. Higgins also provided a letter that stated the City would
approve a street modification to allow the project to move forward without a secondary access. The
7 Applicant contends a variance is not required because they are not proposing a permanent dead end,
but are instead providing a temporary cul de sac. However, to the extent a variance is required; the
8 Examiner has the authority to grant the variance. The Applicant supports approval of the variance
9 request(street modification).
10 Mr. Carson notes Stonehaven was approved with a dead end of more than 700 feet because
Stonehaven provided a temporary stub to adjacent properties. No variance was required in that plat.
11 All secondary access will be provided in the future as adjacent properties develop.
12 The adjacent property owner in this case refuses to sell the property or grant an access easement.
13 The Staff requirement of a secondary access point represents a significant hardship to the Applicant.
If this was a significant public interest, they could use their condemnation authority. Otherwise, this
14 represents an unnecessary hardship to the Applicant. The Applicant has offered adequate mitigation
in the form of sprinklers for every residence. The effect of the City's recommendation is legally15arbitraryandcapricious. The Applicant asks to remove Condition 5 and grant the variance and the
16 plat request.
17 Staff Rebuttal
18 Elizabeth Higgins, Senior Planner, City of Renton
19
Ms. Higgins answered a question from the Hearing Examiner regarding the typical condition of
20 requiring a gravel, gated access road as emergency access. Ms. Higgins stated the secondary access
would need to comply with the Fire Code. Ms. Higgins also stated the Fire Department always asks
21 for secondary access. Public Works assumes there will be no dead ends. She stated she doesn't
22 know the history here and cannot discuss the historical interpretation of secondary access.
23 Since February, the City has taken a closer look at developments next to slopes. They have studied
slope stability on existing slopes with respect to vegetation and stormwater.
24
25 She also.stated pre-application conferences allow for recommendations with respect to requirements
but do not provide enough information to set those requirements. Ms. Higgins stated the letter from
26 Chief Peterson was withdrawn at her request to get the Applicant to support a secondary
PRELIMINARY PLAT- 11
I geotechnical study. The Applicant suggested they would not invest more money in the geotechnical
2 study ifthe Chief's letter remained.
3 Lang Warren, Renton City Attorney
4 Mr. Warren addressed the comment of dead end roads. He stated this project extends the dead end
road. There is no way to tell how long before the adjacent property owner will want to develop the5property, if ever. The road may exist as a dead end road ad infinitum. This project creates a longer
6 dead end road that could be blocked at some point. There is no solution to the dead end road as
currently proposed.
7
The City Code on dead end roads (RMC 4-6-060(H)) requires two means of access and sprinklers
8 for roads over 700 feet. There is no waiver of secondary means of access. There is only a waiver for
9 methods of turn around. This code was in place before the Application but after the other existing
subdivision located along the dead end road. There is no definition of a dead end road in City code.
10 Common definitions would call this road a dead end. This is an infill project on a difficult site.
11 Applicant's Rebuttal
12 Brent Carson, Van Ness Feldman, Applicant's Age
13
Mr. Carson noted RMC 4-6-060(H)(6) regarding the waiver of a turnaround does not apply. Under
14 certain circumstances is related to the circumstances when a turnaround does not apply. The Code
section that does apply is RMC 4-7-240 in the subdivision code. This allows variances to be15approvedbytheHearingExaminer.
16
This is the same situation as Stonehaven. There is no substantial increased to the public welfare but
17 the Staff recommendation does provide a significant burden to the Applicant.
18 Public Rebuttal
19
David Rasmussen
20
Mr. Rasmussen stated that parking in front of Stonehaven do not represent the true parking21situation, especially around the holidays.
22 EXHIBITS
23
24 Exhibits 1-31 listed on page 2 of the September 15, 2014 Staff Report, in addition to the Staff Report
itself(Ex. 1), were admitted into evidence during the public hearing. Additional exhibits admitted
25 during the hearing are the following:
26
PRELIMINARY PLAT- 12
1 Ex. 32 Eric Hanson Testimony Summary
Ex. 33 Owen Reese Testimony Summary2Ex. 34 Ellen Brighten Pictures of Campen Springs and wildlife
3 Ex. 35 Brent Carson Letter to HE(9/15/14)
Ex. 36 Resume of Mr. Maher Jouie
4 Ex. 37 Set of maps showing subject site and surrounding area.
5
FINDINGS OF FACT
6
7 Procedural:
g 11. Applicant. Harbour Homes.
9 2. Hearing. The Examiner held a hearing on the subject application on September 11, 2014 in
10 the City ofRenton Council City Chambers.
11 3. Project Description. The applicant has submitted an application for a 20 lot Preliminary Plat.
The application includes a request for the waiver of street improvements to allow a dead-end road in
12
excess of 700 feet. Approval of the project would result in the subdivision of a 9.31 acre property,
13 located in the Talbot planning area of the City, into 20 lots suitable for single-family residential use.
14 The proposed density is 4.23 dwelling units per net acre. The project site is currently undeveloped,
except for a paved, temporary cul-de-sac.
15
The site contains three land use zones, Residential 1 dwelling unit per net acre (du/ac), Residential 8
16 (g du/ac) and Residential 14 (14 du/ac) [Exhibit 3]. Additionally, the area zoned R-1 is located
17 within the Urban Separator overlay. Only the 6.06 acre (263,328 sf) portion that is zoned R-8 is
proposed to be developed. The proposed density would be 4.23 du/ac Subdivision into 20 lots would
18 result in a density of 4.05 dwelling units per net acre. Lot sizes would range from 4,500 square feet
to 8,134 square feet. In addition to the 20 lots, 6 tracts are proposed for sensitive areas and tree
19 retention.
20
The site is proposed to be accessed via an extension of Smithers Ave. S. The requested modification
21 of Renton Municipal Code, if approved, would permit this access although it is considered to be a
dead end" road from the intersection of SE 186th St. The undeveloped site has approximately 400
22 trees that have been deemed to be "significant." Trees will be removed, retained, and replaced as
23 required by Renton Municipal Code. An estimated 3,396 cy of cut and 10,035 cy of fill would be
required for site construction. A stormwater detention vault is proposed that would discharge to a
24 closed conveyance system on site and subsequently transported to an area-wide system off site. The
applicant has submitted a Critical Areas Report, Supplemental Stream Study, Traffic Impact
25 Analysis, Slope Analysis, Geotechnical Engineering study, and a Drainage Technical Information
26
Report with the application.
PRELIMINARY PLAT- 13
1
2 4. Adequacy of Infrastructure/Public Services. As conditioned, the project will be served by
adequate/appropriate infrastructure and public services as follows:
3
4 A. Water and Sewer Service. Although the project site lies within the boundaries of the
Renton Water Service Area, the City does not have water service mains near the project
5 site. Water service would be provided by the Soos Creek Water and Sewer District from
6 an existing water main located at the Smithers Ave S street end at the north portion of the
property. A certificate of water availability from SCWSD must be provided prior to
7 issuance of construction permits. The site is provided sanitary sewer service by the City
8 of Renton. There is a sewer main and a manhole at the south end of Smithers Ave S.
9 B. Police and Fire Protection. Police service would be provided by the Renton Fire
10 Department. The Renton Police Department has commented that there would be minimal
impacts from the project.
11
12 Fire service would be provided by the Renton Fire Department. Fire Prevention staff
indicate that sufficient resources exist to furnish services to the proposed development;
13 subject to the condition that the applicant provides Code required improvements and fees
14 presumably including fire impact fees) and that a second access be provided to the site in
accordance with RMC 4-6-060H, which prohibits dead end streets longer than 700 feet in
15 length.
16
The need for a second access is the most significant factual issues presented in this17hearing. The applicant disputes the need for the secondary access. It is determined that
18 the secondary access is necessary to provide adequate/appropriate fire protection service.
19
The proposed project site is located at the end of an existing dead end street in excess of
20 700 feet. The proposal asks for approval of a temporary cul-de-sac on an extension of this
21 street. The length of the extended dead-end street would be approximately 2,364 feet,
from the point at which it becomes a dead end at Main Avenue South (SE 102nd St) and
22 SE 186th St to the new street end within the proposed project. Currently,there are 99 lots
23 that are accessed by this dead end street.
24 As testified by Renton Fire Mark Peterson, the length of the street is too challenging to
25 service to the area by fire apparatus. He stated last year there was a wildfire traveling
along the electric easement in a nearby neighborhood. This neighborhood had one access
26 point that was cut off by the fire. The fire department could not get in to help residents
PRELIMINARY PLAT- 14
I and residents could not evacuate. Mr. Peterson is also concerned about the neighborhood
2 being cut off in a seismic event. City code requires a secondary access in roads over 700
feet. The fire department cannot maintain adequate response times to the neighborhood.
3 Without secondary access, an additional minute is added to the response time to this
4 neighborhood.
5 The applicant presented its own fire expert, Carl Anderson, to provide testimony on the
6 safety of fire access. Mr. Anderson's testimony was not persuasive. The hearing
examiner asked Mr. Anderson if he had any safety concerns over the fact that the
7 proposed subdivision only has one access point. Mr. Anderson did not respond with a
g simple "yes" or "no". Mr. Anderson did not testify that the subdivision would have safe
or adequate fire access with one fire access road. Rather, he concluded that the addition
9 of the proposed 20 lots would not be "a significant detriment to public safety based on
10 what's already in the area". Mr. Anderson's somewhat tortured response leaves the very
strong impression that he did not want to opine on the fire safety of a single access point11tothesubdivision; that instead the most supportive comment he could make for his client
12 was that in the context of the safety problems faced by the 99 other lots in the area, the
safety impact to the proposed subdivision was not that significant. The fact that other
13
subdivisions may have similar safety issues has no bearing on whether the single access
14 to the proposed subdivision is safe and adequate. In short, the applicant has not provided
15 any expert testimony to refute the Fire Chiefs testimony that the proposed single access
would be safe or adequate for the proposed 20 lots.
16
17 Mr. Anderson noted that the applicant would be willing to provide sprinkler systems to
mitigate against the single access. He did not testify that this would completely mitigate
18 against the dangers of single access. Mr. Anderson noted that Appendix D to the
19 International Fire Code addresses the use of fire sprinklers to substitute for secondary
access roads. Appendix D was not offered into evidence and the examiner cannot take
20 judicial notice of it because it has not been adopted by the City of Renton. More
21 determinative is that the Renton Municipal Code does not expressly authorize a
substitution of secondary access roads with fire sprinklers. In fact, RMC 4-6-060(H)(2)
22 already requires sprinklers in addition to two access roads for streets longer than 700 feet
23 in length. Clearly, fire sprinklers are not considered an adequate substitute for secondary
access under city standards if they are already required in addition to secondary access for
24 dead end roads such as the one serving the proposed development. If the applicant
25 wishes to use fire sprinklers as a substitute for secondary access, it has the burden`of
26
establishing that the sprinklers will reduce the fire hazard to insignificant levels. The
PRELIMINARY PLAT- 15
I applicant has only shown that the fire hazard is reduced, but has not established or even
2 asserted that the reduction in hazard would be reduced to acceptable levels.
3 The applicant's arguments are well noted that the single access road was found sufficient
4 for the other 99 lot served by it and that staff has changed its position on the adequacy of
the access for the proposed subdivision. The inconsistencies in the staff's position does
5 undermine the credibility of their position. However, the reasoning of the fire chief's
6 testimony is highly compelling; that testimony is largely left unchallenged by the
applicant; and the need for the two access points is clearly laid out in the City's
development standards with no express exception for sprinkler systems. Further, it must
g also be acknowledged that circumstances have changed since the approval of other
subdivisions along the dead end road. In prior years development occurred at a much
9 more rapid pace and expectations were high that a looped road would be completed
10 relatively quickly. The length of the dead end road was of course shorter for each
preceding subdivision and the amount ofroad necessary to complete a looped system was11correspondinglylonger.
12
The applicant presented testimony that accidents were unlikely to prevent fire access13
given the width of the single access road, but the fire chief was well aware of this
14 condition when he presented his testimony.
15
The preponderance of evidence and substantial evidence in the record establish that two
16 access points are necessary to provide adequate/appropriate and safe fire access to the
17 proposed subdivision.
18 C. Drainage. The applicant submitted a drainage report and drainage plan on July 15, 2014,
19 Ex. 11. Staff have determined that the report demonstrates compliance with 2009 King
County Surface Water Manual and additional requirements, based on specific site
20 conditions, as required by the Department of Community and Economic Development.
21 This proposal is specifically required to comply with the 2009 King County Surface
Water Manual and the 2009 City ofRenton Amendments to the KCSWM, Chapter 1 and
22 2. Based on the City's flow control map, this site falls within the Flow Control Duration
23 Standard, Forested Conditions. This means that off-site flow volumes and rates may not
be higher than predevelopment levels. The site is subject to full drainage review. The
24 project is required to provide detention and water quality under the current King County
25 Surface Water Manual. The engineer has provided a design for a combined detention and
water quality vault to be located on Tract A of the site. A tightlined stormwater
26 conveyance system shall be utilized to transport discharged stormwater from a vault to an
PRELIMINARY PLAT- 16
I existing system at the bottom of the protected slope (Tract F). A recorded easement
2 agreement demonstrating access to the existing system is required by the conditions of
approval prior to issuance of construction permits.
3
4 Owen Reese, a civil engineer retained by the homeowner's association of the neighboring
Campen Springs development, made several recommendations on drainage mitigation
5 during the hearing. City engineering staff confirmed that the stormwater suggestions
6 made by Mr. Reese should be added to the conditions of approval. The suggestions
reasonably protect against slope stability, are made by qualified experts and there is no
7 evidence to the contrary. The drainage and slope stability recommendations made by Mr.
8 Reese will be made conditions of approval'.
9 D. Parks/Open Space. City ordinances require the payment of park impact fees prior to
10 building permit issuance. RMC 4-2-115, which governs open space requirements for
residential development, does not have any specific requirements for open space for
11 residential development in the R-Ior R-8 district. RMC 4-2-115 does impose open space
12 requirements for the R-14 district based upon the number of dwelling units, but since no
dwelling units are proposed for the R-14 portion of the development, no open space is13
required. RMC 4-3-110 requires that 50% of the portion of the plat within the Urban
14 Separator Overlay shall be designated as a non-revocable open space tract. As
15 determined in the staff report, p. 14, the open space tract proposed by the applicant
satisfies this standard (which appears to be accomplished by Tract F, which takes up most
16 if not all of the Urban Separator property, see Ex. 4) . The impact fees in conjunction
17 with the open space tract required by the Talbot Urban Separator provide for adequate
parks and open space.
18
19 E. Streets. The proposal provides for adequate/appropriate streets. Access to the plat is
proposed via Smithers Ave and the conditions of approval require the applicant to extend
20 Smithers through the adjoining property to the east to 102nd Ave S. Internal access
21 includes looped alley access. The applicant prepared a traffic impact analysis, admitted
as Ex. 30, that was reviewed and approved by City public works staff. The study
22 determined that the proposal would generate 16 am peak hour trips and 21 pm peals hour
23 trips. The study shows that affected intersections would maintain a level of service A
with or without the project. There is no concurrency analysis submitted into the record.
24
25 1 Mr.Reese also recommended that the applicant monitor a migrating stream channel located off-site. Mr.Reese and
staff acknowledged that the-proposal does not adversely affect or exacerbate this condition. Consequently, the
26 project cannot be legally conditioned to address the issue.
PRELIMINARY PLAT- 17
I However, given the lack of any significant impact on affected intersections it is
2 determined at this time the proposal is consistent with the City level of service standards.
3 F. Parking. Sufficient area exists, on each lot, to accommodate required off, street parking
4 for a minimum of two vehicles per dwelling unit as required by City code.
5 G. Schools. Adequate/appropriate provision is made for schools. The proposal is located
6 within the Renton School District. The staff report notes that it is anticipated that the
Renton School District can accommodate additional students generated by this proposal
7 at the following schools: Benson Hill Elementary, Nelson Middle School, and Lindbergh
8 High School. These schools are not within walking distance of the proposed
9
development. Transportation would be required.
10 A School Impact Fee, based on new single family lots, will also be required in order to
mitigate the proposal's potential impacts to the Renton School District. The fee is payable
11 to the City as specified by the Renton Municipal Code. Currently the fee is assessed at
12 5,455.00 per single family residence.
13 5.Adverse Impacts. There are no adverse impacts associated with the proposal as conditioned
14 with secondary access. Adequate public facilities and drainage control are provided as determined in
Finding of Fact No. 4. The proposal involves single-family housing at a density 4.23 dwelling units
15 per acre, which is at the bottom end of the 4-8 units per acre required in the R-8 zone. This is a
legislatively set standard of what is considered a compatible density for the area. Consequently,16 there are no issues of compatibility with surrounding development based on density.
17 Many of the public comment letters expressed concern over the loss of trees. There are 401
trees on site with diameters of more than six inches. The applicant proposes to retain 42 of these
18 trees and replace the remaining trees with 140 two-inch diameter trees. Most development of
undeveloped areas involves the removal of trees. What constitutes an acceptable level of tree
19 removal is a highly subjective determination. As with density, the Renton City Council has
20 legislatively determined an acceptable level of tree removal by the adoption of tree retention
ordinance codified as RMC 4-4-130. As noted at p. 14 of the staff report, the applicant's tree
21 retention and replacement plan is consistent with RMC 4-4-130. Consequently, the proposed tree
removal cannot be considered a significant impact of the proposal.
22 There are protected slopes, wetlands, and a stream located within proposed sensitive area
23 tracts (Native Growth Protection Areas) on the site. The anticipated impacts of these areas have been
addressed in technical reports and studies [Exhibits 16-27] and the Environmental Review
24 Committee Report [Exhibit 31]. The project complies with all critical area regulations provided all
mitigation measures are met as identified in the Environmental Review Committee Report. A storm
25 drainage line is proposed across the face of the protected slopes. A critical area exemption is
26
required for placing drainage lines on protected slopes. Staff determined that the proposed drainage
line, as conditioned, would improve slope stability. Staff has found slope stability to improve for
PRELIMINARY PLAT- 18
I other proposals under the same conditions. As concluded in the conclusions of law, this resulting
increase in slope stability serves as the basis for approving the critical area exemption.2 Several public comment letters expressed concern over the encroachment of the project onto
3 the fifty foot buffer of a Category U wetland and at least one comment letter asserted there are two
Category H wetlands on-site as opposed to one. As depicted in a site plan attached to the critical area
4 study, Ex. 17, five2 lots encroach onto the fifty foot buffer of the wetland as well as Tract A (the
storm drainage tract) and portions of the interior road. The applicant has proposed to remove these
5 encroachments through buffer averaging, which is allowed by the code and involves the replacement
6 of buffer reduction area by 1:1 increases in buffer area at other parts of the buffer. A total of 10,463
square feet of buffer will be reduced and a total of 12, 198 square feet will be added in the buffer
7 averaging proposal. The buffer averaging proposal has been reviewed and approved by qualified
third party review, Ex. 16, as well as by staff. The critical area studies provide a compelling and
8 thorough justification for the averaging based upon best available science. There is no evidence in
9 the record that the proposed averaging would adversely affect the wetland or that the wetland
delineations are inaccurate. For these reasons, the proposed buffer averaging is determined to be
10 consistent with the City's critical area regulations and will not create any significant adverse impacts
to the wetland functions or values.
11 Erosion and slope stability were also cited in numerous public comment letters as an area of
12
concern. As noted previously, staff have concluded that the proposed drainage line across the steep
slope will serve to improve slope stability. The City has detailed erosion control standards
13 applicable to clearing and grading activities that will protect adjoining properties from erosion
impacts. As previously noted, the City stormwater regulations require off-site stormwater flow
14 volumes and velocities to be at or less than pre-development conditions. The proposal has also been
subject to extensive geotechnical review coupled with third party review designed to assure that the15proposalwillnotadverselyaffectslopestability, as shown in Ex. 19-26 and 31. There has been no
16 expert testimony to show that the analysis and mitigation pertaining to erosion and slope stability is
deficient, except for some suggestions made by Mr. Reese, all of which have been adopted except a
17 request to monitor stream channel migration that Mr. Reese acknowledged is not affected by the
proposal. For all these reasons, it is determined that the proposal will not create any significant slope
18 stability or erosion impacts.
19
20
Conclusions of Law
21
1. Authori . RMC 4-7-020(C) and 4-7-050(D)(5)provide that the Hearing Examiner shall hold
22 a hearing and issue a final decision on preliminary plat applications. RMC 4-8-080(G) classifies
23 preliminary plat applications as Type III applications. RMC 4-8-080(G) classifies development
standard modifications as Type I applications. RMC 4-8-080(C)(2) requires consolidated permits to
24
25 2 The site plan actually only shows a buffer reduction in four lots,neglecting to identify a reduction in buffer for Lot
21. The text of the critical areas study,however,identifies at p. 14 that the buffer on Lot 21 will be removed through
26 averaging. Consequently,it is understood that the site plan incorrectly fails to identify buffer removal from Lot 21.
PRELIMINARY PLAT- 19
I each be processed under "the highest-number procedure", which in this case is Type III review,
2 involving a review and a final decision issued by the hearing examiner.
3 2. Zoning/Comprehensive Plan Designations. The developed portion of the property is zoned
R-8. Other portions of the property are zoned R-1, R-1 and the western third is within the Talbot
4 Urban Separator Overlay. The comprehensive plan designations are Residential Low Density
5 (RLD), Residential Single-Family(RSF) and Residential Medium Density(RMD).
6 13. Review Criteria. Chapter 4-7 RMC governs the criteria for subdivision review. Applicable
7 standards are quoted below in italics and applied through corresponding conclusions of law.
8 RMC 4-7-080(B): A subdivision shall be consistent with thefollowing principles ofacceptability:
9 1. Legal Lots: Create legal building sites which comply with allprovisions ofthe City Zoning Code.
10 2. Access:Establish access to a public roadfor each segregatedparcel.
11 3. Physical Characteristics: Have suitable physical characteristics. A proposed plat may be denied
12 because offlood, inundation, or wetland conditions. Construction ofprotective improvements may
be required as a condition ofapproval, and such improvements shall be noted on thefinalplat.
13
4. Drainage: Make adequate provision for drainage ways, streets, alleys, other public ways, water
14 supplies and sanitary wastes.
15 4. As to compliance with the Zoning Code, Conclusion K(2) of the staff report is adopted by
16 reference as if set forth in full. As depicted in the plat map, Ex. 37, each proposed lot will directly
access Smithers Ave S., a public road, or indirectly via a private alley. As determined in Finding of17
Fact No. 4 and 5, the project is adequately designed to prevent any impacts to critical areas. No
18 flooding problems are anticipated because as determined in Finding of Fact No. 4 the proposal is
19 served by adequate/appropriate stormwater facilities and the project is not located in a floodplain.
As determined in Finding ofFact No. 4, the proposal provides for adequate public facilities.
20
5. RMC 4-7-080(n(1): ...The Hearing Examiner shall assure conformance with the general
21 purposes ofthe Comprehensive Plan and adopted standards...
22 6. The proposed preliminary play is consistent with the Renton Comprehensive Plan as outlined
23 in Conclusion K(1) ofthe staff report, which is incorporated by this reference as if set forth in full.
24 RMC 4-7-120(A): No plan for the replatting, subdivision, or dedication of any areas shall be
25 approved by the Hearing Examiner unless the streets shown therein are connected by surfaced road
or street(according to City specifications) to an existing street or highway.
26
PRELIMINARY PLAT-20
1 7. All of the internal roads of the proposed subdivision eventually connect to Smithers Ave S.,
2 an existing road.
3 RMC 4-7-120(B): The location ofall streets shall conform to any adoptedplans for streets in the
City.
4
8. The City's adopted street plans are not addressed in the staff report or anywhere else in the5
administrative record. However, the only other street connections that appear possible with the
6 steep slope and open space limitations to the west are those proposed and required by this decision.
7 RMC 4-7-120(C): Ifa subdivision is located in the area ofan officially designed[sic] trail,
8 provisions shall be made for reservation ofthe right-of-way orfor easements to the Cityfor trail
purposes.
9
10
9. The subdivision is not located in the area of an officially designated trail.
RMC 4-7-130(C): A plat, short plat, subdivision or dedication shall be prepared in conformance11
with thefollowingprovisions:
12
1. Land Unsuitable for Subdivision: Land which is found to be unsuitable for subdivision includes
13 land with features likely to be harmful to the safety and general health of the future residents (such
14 as lands adversely affected by flooding, steep slopes, or rock formations). Land which the
Department or the Hearing Examiner considers inappropriate for subdivision shall not be
15 subdivided unless adequate safeguards are provided against these adverse conditions.
16 a. Flooding/Inundation:Ifany portion ofthe land within the boundary ofa preliminary plat is
17 subject to flooding or inundation, thatportion ofthe subdivision must have the approval ofthe State
according to chapter 86.16 RCWbefore the Department and the Hearing Examiner shall consider18
such subdivision.
19
b. Steep Slopes:A plat, shortplat, subdivision or dedication which would result in the creation ofa
20 lot or lots thatprimarily have slopesforty percent(40%) or greater as measuredper RMC 4-3-
21 050JIa, without adequate area at lesser slopes upon which development may occur, shall not be
approved.
22
23
3. Land Clearing and Tree Retention: Shall comply with RMC 4-4-130, Tree Retention and Land24
Clearing Regulations.
25
4. Streams:
26
PRELIMINARY PLAT- 21
I a. Preservation:Every reasonable effort shall be made to preserve existing streams, bodies ofwater,
2 and wetland areas.
3 b. Method:Ifa stream passes through any ofthe subject property, a plan shall be presented which
indicates how the stream will be preserved. The methodologies used should include an overflow
4 area, and an attempt to minimize the disturbance ofthe natural channel and stream bed.
5
c. Culverting The piping or tunneling ofwater shall be discouraged and allowed only when going
6 under streets.
7 d. Clean Water: Every effort shall be made to keep all streams and bodies ofwater clear ofdebris
8 andpollutants.
9 10. The criterion is met. The land is suitable for a subdivision as the stormwater design assures
that it will not contribute to flooding and that water quality will not be adversely affected.
10 Development will not encroach into critical areas except as authorized by the City's critical area
11 regulations. No piping or tunneling of streams is proposed. Trees will be retained as required by
RMC 4-4-130 as determined in Finding of Fact No. 5. The on-site stream will be protected by the12criticalareaordinancecompliantbufferthatappliestoit. The City's stormwater regulations provide
13 for adequate protection ofwater quality for the on-site stream and wetlands.
14 RMC 4-7-140: Approval of all subdivisions located in either single family residential or multi-
15 family residential zones as defined in the Zoning Code shall be contingent upon the subdivider's
dedication ofland or providingfees in lieu ofdedication to the City, all as necessary to mitigate the
16 adverse effects of development upon the existing park and recreation service levels. The
17 requirements and procedures for this mitigation shall be per the City of Renton Parks Mitigation
Resolution.
18
19
11. City ordinances require the payment of park impact fees prior to building permit issuance.
RMC 4-7-150(A): The proposed street system shall extend and create connections between existing20
streets unless otherwise approved by the Public Works Department. Prior to approving a street
21 system that does not extend or connect, the Reviewing Official shallfind that such exception shall
22 meet the requirements of subsection E3 of this Section. The roadway classifications shall be as
defined and designated by the Department.
23
12. As conditioned,the proposed street system connects existing streets.
24
RMC 4-7-150(B): Allproposed street names shall be approved by the City.25
13. As conditioned.
26
PRELIMINARY PLAT-22
1 RMC 4-7-150(C): Streets intersecting with existing or proposedpublic highways, major or
2 secondary arterials shall be held to a minimum.
3 14. There is no intersection with a public highway or major or secondary arterial.
4 RMC 4-7-150(D): The alignment ofall streets shall be reviewed and approved by the Public Works
Department. The street standards set by RMC 4-6-060 shall apply unless otherwise approved. Street5
alignment offsets ofless than one hundred twentyfivefeet(125) are not desirable, but may be
6 approved by the Department upon a showing ofneed but only afterprovision ofall necessary safety
7
measures.
8 15. As determined in Finding of Fact 4, the Public Works Department has reviewed and
approved the adequacy of streets,which includes compliance with applicable street standards.
9
10
RMC 4-7-150(E):
11
12 1. Grid:A grid streetpattern shall be used to connect existing and new development and shall be the
predominant street pattern in any subdivision permitted by this Section.
13
2. Linkages:Linkages, including streets, sidewalks,pedestrian or bike paths, shall be provided
14 within and between neighborhoods when they can create a continuous and interconnected network
15 ofroads andpathways. Implementation of this requirement shall comply with Comprehensive Plan
Transportation Element Objective T-A and Policies T-9 through T-16 and Community Design
16 Element, Objective CD-Mand Policies CD-50 and CD-60.
17 3. Exceptions:
18 a. The gridpattern may be adjusted to a 'flexible grid" by reducing the number oflinkages or the
19 alignment between roads, where thefollowingfactors arepresent on site:
20 i. Infeasible due to topographical/environmental constraints; and/or
21 ii. Substantial improvements are existing.
22
4. Connections:Prior to adoption ofa complete grid street plan, reasonable connections that link
23 existing portions ofthe grid system shall be made.At a minimum, stub streets shall be required
within subdivisions to allowfuture connectivity.
24
25 5. Alley Access:Alley access is the preferred street pattern exceptfor properties in the Residential
Low Density land use designation. The Residential Low Density land use designation includes the
26
PRELIMINARY PLAT -23
I RC, R-1, and R-4 zones. Prior to approval ofa plat without alley access, the Reviewing Official shall
2 evaluate an alley layout and determine that the use ofalley(s) is notfeasible...
3 6. Alternative Configurations: Offset or loop roads are the preferred alternative configurations.
4 7. Cul-de-Sac Streets: Cul-de-sac streets may only bepermitted by the Reviewing Official where due
to demonstrable physical constraints no future connection to a larger streetpattern isphysically5possible.
6
16. The proposed and required connections are the maximum that can be included given the steep
7 slopes to the west, critical areas to the south, existing development and the vacant parcels to the
8 south. Lots 11-16 are accessed by an alley.
The proposal as conditioned contains a looped road and no cul-de-sac is proposed. The criterion
9 above is met.
10 RMC 4-7-1500: All adjacent rights-of-way and new rights-of-way dedicated as part of the plat,
11 including streets, roads, and alleys, shall be graded to their full width and the pavement and
sidewalks shall be constructed as specified in the street standards or deferred by the12Planning/Building/Public Works Administrator or his/her designee.
13
17. As proposed.
14
RMC 4-7-150(G): Streets that may be extended in the event offuture adjacent platting shall be
15 required to be dedicated to the plat boundary line. Extensions ofgreater depth than an average lot
16 shall be improved with temporary turnarounds. Dedication of a full-width boundary street shall be
required in certain instances tofacilitatefuture development.
17
18. There are no streets that could be extended in the event of future adjacent platting under the18approvedsubdivisiondesign.
19
RMC 4-7-170(A): Insofar aspractical, side lot lines shall be at right angles to street lines or radial
20 to curved street lines.
21 19. As depicted in Ex. 37,the side lines are in conformance with the requirement quoted above.
22 RMC 4-7-170(B): Each lot must have access to a public street or road. Access may be by private
23 access easement streetper the requirements ofthe street standards.
24 20. As previously determined, each lot has access to a public street.
25 RMC 4-7-170(C): The size, shape, and orientation of lots shall meet the minimum area and width
26 requirements of the applicable zoning classification and shall be appropriate for the type of
PRELIMINARY PLAT- 24
1 development and use contemplated. Further subdivision of lots within a plat approved through the
2 provisions of this Chapter must be consistent with the then-current applicable maximum density
requirement as measured within the plat as a whole.
3
21. As previously determined, the proposed lots comply with the zoning standards of the R-8
4 zone, which includes area, width and density.
5 RMC 4-7-170(D): Width between side lot lines at their foremost points (i.e., the points where the
6 side lot lines intersect with the street right-of-way line)shall not be less than eighty percent(80%) of
7 the required lot width except in the cases of(1)pipestem lots, which shall have a minimum width of
twentyfeet (20) and(2) lots on a street curve or the turning circle ofcul-de-sac (radial lots), which
8 shall be a minimum ofthirtyfivefeet(35).
9 22. As shown in Ex. 37, the requirement is satisfied.
10 RMC 4-7-170(E): All lot corners at intersections ofdedicatedpublic rights-of-way, except alleys,
11 shall have minimum radius offifteenfeet(15).
12 23. As conditioned.
13 RMC 4-7-190(A): Due regard shall be shown to all naturalfeatures such as large trees,
14 watercourses, and similar community assets. Such naturalfeatures should be preserved, thereby
adding attractiveness and value to the property.
15
24. The on-site wetland and stream is set-aside from the developed portion of the subdivision.
16 The criteria above is met.
17
RMC 4-7-200(A): Unless septic tanks are specifically approved by the Public Works Department
18 and the King County Health Department, sanitary sewers shall be provided by the developer at no
19 cost to the City and designed in accordance with City standards. Side sewer lines shall be installed
eightfeet (8) into each lot ifsanitary sewer mains are available, or provided with the subdivision
20 development.
21 25. As conditioned.
22 RMC 4-7-200(B): An adequate drainage system shall be provided for the proper drainage of all
23 surface water. Cross drains shall be provided to accommodate all natural waterflow and shall be of
sufficient length to permit full-width roadway and required slopes. The drainage system shall be24
designed per the requirements ofRMC 4-6-030, Drainage (Surface Water) Standards. The drainage
25 system shall include detention capacity for the new street areas. Residential plats shall also include
26 detention capacity forfuture development ofthe lots. Water qualityfeatures shall also be designed to
provide capacityfor the new streetpavingfor the plat.
PRELIMINARY PLAT-25
1 26. The proposal provides for adequate drainage that is in conformance with applicable City drainage
2 standards as determined in Finding of Fact No. 4. The City's stormwater standards, which are
incorporated into the technical information report and will be further implemented during civil plan
3 review, ensure compliance with all of the standards in the criterion quoted above.
4 RMC 4-7-200(C): The water distribution system including the locations offire hydrants shall be
5 designed and installed in accordance with City standards as defined by the Department and Fire
6
Department requirements.
27. As conditioned.
7
8 RMC 4-7-200(D): All utilities designed to serve the subdivision shall be placed underground. Any
utilities installed in the parking strip shall be placed in such a manner and depth to permit the
9 planting oftrees. Those utilities to be located beneath paved surfaces shall be installed, including all
10 service connections, as approved by the Department. Such installation shall be completed and
approved prior to the application of any surface material. Easements may be required for the
11 maintenance and operation ofutilities as specified by the Department.
12 28. As conditioned.
13
RMC 4-7-200(E): Any cable TV conduits shall be undergrounded at the same time as other basic
14 utilities are installed to serve each lot. Conduitfor service connections shall be laid to each lot line
15 by subdivider as to obviate the necessity for disturbing the street area, including sidewalks, or alley
improvements when such service connections are extended to serve any building. The cost of
16 trenching, conduit, pedestals and/or vaults and laterals as well as easements therefore required to
17 bring service to the development shall be borne by the developer and/or land owner. The subdivider
shall be responsible only for conduit to serve his development. Conduit ends shall be elbowed to
18 final ground elevation and capped. The cable TV company shall provide maps and specifications to
19 the subdivider and shall inspect the conduit and certify to the City that it isproperly installed.
20 129. As conditioned.
21 RMC 4-7-210:
22 A. MONUMENTS:
23 Concrete permanent control monuments shall be established at each and every controlling corner of
24 the subdivision. Interior monuments shall be located as determined by the Department. All surveys
shall be per the City ofRenton surveying standards.
25
B. SURVEY:
26
PRELIMINARY PLAT- 26
1 All other lot corners shall be marked per the City surveying standards.
2 C. STREET SIGNS.-
3
IGNS.
3
The subdivider shall install all street name signs necessary in the subdivision.
4
30. As conditioned.
5
6 Street Improvement Waiver
7 31. RMC 4-6-060(H)(2) requires two means of access for homes served by a dead end street
longer than 700 feet. The applicant wishes to have this secondary access requirement waived for the8deadendstreetthatservesit, Smithers Ave. S. The length of Smithers Ave. S. as extended by the
9 proposed subdivision would be 2,364 feet.
10 RMC 4-9-250(C)(2) authorizes the waiver of the installation of street improvements3 subject to the
11 determination that there is reasonable justification for such wavier. RMC 4-9-250(5) provides that
reasonable justification shall include but not be limited to the following:
12
13 a. Required street improvements will alter an existing wetlands or stream, or have a
negative impact on a shoreline's area.
14 b. Existing steep topography would make required street improvements infeasible.
15 c. Required street improvements would have a negative impact on other properties,
such as restricting available access.
16 d. There are no similar improvements in the vicinity and there is little likelihood
that the improvements will be needed or required in the next ten (10)years.
17 e. In no case shall a waiver be granted unless it is shown that there will be no
detrimental effect on thepublic health, safety or welfare ifthe improvements are not18installed, and that the improvements are not neededfor current orfuture
19 development.
20
21
22 s The secondary access required by staff may not have to be "improved" since its sole purpose is to provide for
emergency access and no paving or even grading may be necessary. The issue at hand could be characterized as
23 more of a street grid issue than a street improvement issue. Consequently, it is debatable whether the RMC 4-9-
250(C)(2)waiver process applies in this instance. The alternative modification process would be RMC 4-9-250(D),
24 which applies to those standards not covered by RMC 4-9-250(B) or(C). The proposal would also fail to meet the
RMC 4-9-250(D), since authorizing one access point would not meet the intent or safety objectives of the Code.
25 The applicant used the criteria of RMC 4-9-250(B)(5) in its briefing,which clearly does not apply to the requested
modification. The RCW 4-9-250(B)(5) criteria only apply to the development standards expressly identified in
26 RCW 4-9-250(B)(1). RMC 4-6-060(H)(2)is not listed amongst those standards.
PRELIMINARY PLAT-27
1 The requested waiver cannot be approved because it fails to meet RMC 4-4-080(C)(5)(e). As
determined in Finding of Fact No. 4, waiver of the proposed secondary access requirement would2preventtheprovisionofsafeandappropriate/adequate fire response. Consequently, the proposal will
3 have a detrimental effect on public safety. As testified by the Fire Chief, one access point can prevent
fire apparatus from reaching the subdivision in case of emergency due to large numbers of persons
4 leaving the emergency scene or damage caused by the emergency (such as seismic events and
5
wildfires).
The applicant asserts that the proposed stub ending for Smithers Road does not qualify as a "dead
6 end" under RMC 4-6-060(H), and hence the two access requirement does not apply. The applicant
argues that a stub road should not be considered a dead end because it is only a temporary situation7thatwillberemovedupondevelopmentoftheadjoiningsubdivisiontotheeast. It is concluded that
8 the proposed stub road qualifies as a dead end. This interpretation is supported by both the plain
meaning and the intent of the ordinance. The Meriam Webster definition of"dead end" is "a street
9 that ends instead ofjoining with another street so that there is only one way in and out of it". The
proposed stub road clearly meets this definition. The idea that a stub road is not a "dead end" road
10 does not meet the intent of the two access requirement, which is to prevent a dangerous situation.
I I The "temporary" road stub could be in place for years and even decades before the adjoining property
to the east is developed. The risk ofpreventing fire access, which is what the two access requirement
12 is designed to minimize, is not materially reduced by a stub road that could remain in place for this
period of time. It is also noteworthy that the "dead end" situation for development along Smithers13Ave. S. could have always been considered temporary, since Smithers will eventually form a looped
14
system. Despite this `'temporary" situation, staff in the Stonehaven development, located along S.
47 St. (which is an extension of the Smithers dead end street ) still required a modification to the
15 two access requirement of RMC 4-6-060(H)(2)4. See Ex. 37, aft. J,Finding of Fact No. 14.
16 The applicant points out in its briefing that RMC 4-6-060(H)(1) provides that cul-de-sacs and dead
ends should only be authorized in circumstances where no "future connection" to a road grid is
17 physically possible. If"road stub" qualifies as a cul-de-sac or dead end, then RMC 4-6-060 would
have to be read as only authorizing road stubs if no "future connection" to a road grid is possible,
18 which of course makes no sense. The conclusion to be drawn from this language is either that (1) a
19 cul-de-sac or dead end does not include a road stub; or(2) RMC 4-6-060(H)(1) impliedly only applies
to permanent cul-de-sacs or dead ends (i.e. not road stubs). Given the plain meaning of the "cul-de-
20 sac" and "dead end" terms and the fire safety objectives of RMC 4-6-060(H)(2), the latter
interpretation is determinative. The City Council likely intended that RMC 4-6-060(H)(1) would
21 require staff to only authorize permanent dead ends when it was physically not feasible to require a
connection and if any dead ends had to be allowed, the fire safety impacts would be mitigated by the22secondaryaccessandsprinklerstandardsimposedbyRMC4-6-060(H)(2). Given that a "future"
23
24 4 At the hearing the City Attorney noted that RMC 4-6-060 has been amended several times over the years and its
unclear whether the same two access requirement applied to other subdivisions along the Smithers Ave S dead end
25 road system. A look at the legislative history available to the examiner reveals that RMC 4-6-060(H)has remained
the same since at least 1995,when RMC 4-6-060 was first adopted. The Stonehaven preliminary plat was approved
26 in 2004.
PRELIMINARY PLAT-28
I connection could take decades to complete,it is doubtful that the Council would have intended a road
2 stub to remain in place for decades without the mitigation required by RMC 4-6-060(H)(2).
The most difficult issue raised by the applicant is the potential violation of its constitutional property3rights. It is logical to presume that the Council does not intend its development regulations to be
4
interpreted in a manner that is inconsistent with the constitutional rights of property applicants. At
the least, violation of those rights is counter to the financial interests of the City since property rights
5 violation easily translate into damages claims. An exaction that exceeds the proportional
responsibility of an applicant for a development impact is a violation of the takings clause. See, e.g.
6 1 Burton v. Clark County, 91 Wn. App. 505, 516-17 (1998). A strictly proportionate requirement from
the applicant for a looped fire access road system would arguablyjust be requiring the construction of7thatportionofthelooplocatedonthepreliminaryplatproperty. However, even if this were
8 technically correct for strict proportionality, only rough proportionality is required in exactions cases.
See, Sparks v. Douglas County, 127 Wn.2d 901, 918 (1995)("it is not necessary for the government to show a
g `precise mathematical calculation" of the connection between the exaction and the impact ofthe proposed
development.") It is also of high relevance that the public interest at stake is at the high end of the range of
10 compelling government interests, namely public safety. Requiring the applicant to acquire access rights
across private property to mitigate against congestion or aesthetic impacts may be questionable under a
11 proportionality analysis. However, the City is in a very good position to argue that requiring the acquisition
of access rights across one adjoining lot is entirely proportionate to avoiding the dangers identified by the12RentonFireChiefasattendanttoplacinganadditional20homesneartheendofahalfmiledeadendroad.
13 Ultimately, the merits of the applicant's constitutional arguments do not have to be addressed. As
previously discussed, the constitutional issues are relevant to the interpretation of City development14standards. Beyond this, the examiner has no authority to waive City development standards if they
15 violate the constitutional property rights of an applicant. RMC 4-9-250(C)(5)(e) strictly provides that
in no case" shall a waiver be granted unless it is shown that there will be no detrimental effect on the
16 public health, safety or welfare. There may be some room to allow constitutional restrictions to
influence what level of risk of harm should be considered "detrimental" under the standard, but that
17 only goes so far. The Renton Fire Chief testified that in case of emergency there was a danger that he
18 may be prevented from dispatching his fire trucks to the proposed subdivision because of the half
mile long dead end road. As determined in the findings of fact, the applicant did not provide any
19 convincing evidence to the contrary. No matter how liberally construed to achieve consistency with
constitutional requirements, there is no way to reach a conclusion of "no detrimental" effect on
20 public safety given the testimony of the fire chief.
21
22 DECISION
23 The proposed preliminary plat and street improvement waiver is approved, subject to the following
24
conditions:
25 1. The applicant shall comply with mitigation measures issued as part of the Mitigated
Determination ofNon-Significance for the proposal.
26
PRELIMINARY PLAT -29
1 2. All proposed street names shall be approved by the City.
2 3. All lot corners at intersections of dedicated public rights-of-way, except alleys, shall have
3 minimum radius of fifteen feet(15').
4 4. Side sewer lines shall be installed eight feet (8') into each lot if sanitary sewer mains are
5 available, or provided with the subdivision development.
6 5. All utilities designed to serve the subdivision shall be placed underground. Any utilities
7 installed in the parking strip shall be placed in such a manner and depth to permit the planting
of trees. Those utilities to be located beneath paved surfaces shall be installed, including all8serviceconnections, as approved by the Department of Public Works. Such installation shall
9 be completed and approved prior to the application of any surface material. Easements may
be required for the maintenance and operation of utilities as specified by the Department of10PublicWorks.
11
6. Any cable TV conduits shall be undergrounded at the same time as other basic utilities are
12 installed to serve each lot. Conduit for service connections shall be laid to each lot line by
13 Applicant as to obviate the necessity for disturbing the street area, including sidewalks, or
alley improvements when such service connections are extended to serve any building. The14costoftrenching, conduit, pedestals and/or vaults and laterals as well as easements therefore
15 required to bring service to the development shall be borne by the developer and/or land
owner. The applicant shall be responsible only for conduit to serve his development. Conduit
16 ends shall be elbowed to final ground elevation and capped. The cable TV company shall
17 provide maps and specifications to the applicant and shall inspect the conduit and certify to
18
the City that it is properly installed.
19 7. The applicant shall install all street name signs necessary in the subdivision prior to final plat
approval.
20
21
8. The easements for the alley shall authorize access to all lots of the proposed subdivision.
22 9. The applicant shall comply with nine the mitigation measures issued as part of the
23
Determination of Non-Significance Mitigated, dated August 26,2014 [Exhibit 14].
24 10. The applicant shall submit a detailed landscape plan, meeting all landscape plan submittal
requirements of RMC 4-8-120L. The detailed landscape shall be submitted to and approved
25 by the Current Planning Project Manager prior to issuance of construction permits. Street
26
PRELIMINARY PLAT- 30
I trees shall not include Callery Pear and trees on S. 48th PI shall be a different type from those
2 on Smithers Ave S.
3 11. The Replacement Tree Plan shall be revised to show the proposed locations for replanting
4 140 two-inch diameter replacement trees.
5 12. Vegetation (trees, shrubs, and ground cover) shall be planted to replace vegetation (trees,
shrubs, and ground cover) removed for installation of the stormwater conveyance between
6
the stormwater vault and the west property boundary of the property. Type and quantities
7 shall be sufficient to ensure erosion control in the protected slope area.
8 13. The primary access road, Smithers Ave S, shall connect to S 48th PI and be extended to the
9 east to provide a second access from Main Ave S (102nd Ave SE) at its intersection with SE
186th St. The completion of this street and its connection to Main Ave S shall be a condition
10 of project approval. The extent of street improvements necessary to effectuate this
11 connection shall be determined by the City of Renton Fire Department in accordance with
applicable fire code standards and shall be the minimum necessary to provide for safe and
12 effective secondary fire access. The extended street, providing a second access to the
13 proposed development, shall have construction completed prior to recording the final plat.
14 14.A recorded easement agreement demonstrating access to the existing downslope stormwater
15 control system shall be submitted prior to issuance of construction permits.
16 15.A Homeowners' Association shall be incorporated for maintenance and equal and undivided
17 ownership of the tracts, the private access road, and the alley.
18 16. An easement shall be recorded along the east property boundary for future extension of the
19 sanitary sewer system. The easement shall be at the time of recording the final plat.
20
17. All new fill shall be composed of free draining structural fill and not native soils.
21
18. Drainage from western lots into the steep slopes shall be minimized and all such drainage22
shall be dispersed.
23
19. Anchors for the stormwater tight line shall only be placed on the top and bottom of the pipe.24 The anchors should be designed to withstand tree fall and soil movement. The pipeline
25 should be constructed at the top and pulled down the slope rather than moving it up the hill.
26
PRELIMINARY PLAT- 31
1 DATED this 3rd day of October,2014.
2
F'h 3 v 01b hIs
3
4 City of Renton Hearing Examiner
5
6 Appeal Right and Valuation Notices
7 RMC 4-8-080 provides that the final decision of the hearing examiner is subject to appeal to the
8
Renton City Council. RMC 4-8-110(E)(14) requires appeals of the hearing examiner's decision
to be filed within fourteen (14) calendar days from the date of the hearing examiner's decision.
9 A request for reconsideration to the hearing examiner may also be filed within this 14 day appeal
period as identified in RMC 4-8-110(E)(13) and RMC 4-8-100(G)(9). A new fourteen (14) day
10 appeal period shall commence upon the issuance of the reconsideration. Additional information
regarding the appeal process may be obtained from the City Clerk's Office, Renton City Hall —11 7th floor, (425) 430-6510.
12
Affected property owners may request a change in valuation for property tax purposes
13 notwithstanding any program of revaluation.
14
15
16
17
18
19
20
21
22
23
24
25
26
PRELIMINARY PLAT-32