HomeMy WebLinkAboutRequest for Recon - Van Ness Feldman CI T Y OF RENTON
1 OCT 16 2014 .
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CITY CLERKS OFFICE
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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
LUA 13-000642 RECONSIDERATION
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I. INTRODUCTION
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Pursuant to Renton Municipal Code(RMC)4-8-100(G)(9) and RMC 4-8-
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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
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erroneous conclusion in his Decision and in the imposition of Condition 13.
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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
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materially detrimental to public welfare.
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The Hearing Examiner also should grant the variance and remove Condition 13 to
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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.
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12 II. ARGUMENT
13 A. The Hearing Examiner Should Reconsider the Decision,Apply the Correct
Variance Criteria, Grant the Variance and Eliminate Condition 13.
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The Hearing Examiner Decision mistakenly applied the street improvement
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modification provisions set forth in RMC 4-9-250(C)rather than the variance provisions
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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
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Preliminary Plat. Preliminary Plats are regulated by the City of Renton under Title IV,
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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 of Exhibit 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 of the 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
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unless otherwise approved." The street standards in RMC 4-6-060 include those
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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 of the 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
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street standards. See RMC 4-7-240(1). The Hearing Examiner may grant such a variance
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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 of this 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
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subdivision through RMC 4-7-150. See Exhibit 35,Att. I. The variance application
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provided an analysis showing compliance with each of the four criteria under RMC 4-9-
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22 250(B)including,in particular, criteria RMC 4-9-250(B)(5)(b) which states that"the
23 granting of the 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
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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
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sought under RMC 4-7-240(A).
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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 of the 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 of Vincent J.
11 Geglia,Exhibit 35,Att. K.
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The Hearing Examiner erred by applying the street improvement modification
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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
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detriment to public safety based on what's already in the area." This expert testimony
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confirms compliance with criteria RMC 4-9-250(B)(5)(b) that the variance would not be
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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.
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REQUEST FOR RECONSIDERATION-4 Vali Ness
Feldman LLP
719 Second Avenue Suite 1150
57722-7 Seattle, WA 98104
(206) 623-9372
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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
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Applicant to demonstrate that the single access"would be safe." Decision at 15. There is
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no such criterion within the context of the requested variance. The Decision likewise
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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
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in this record, grant the variance as requested and strike Condition 13.
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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 of the Applicant's experts and should discount the exaggerated and
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questionable testimony presented by staff. The allegation by staff of a dead end street
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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 of the 99 homes that staff alleged to be on this street,42 of those are on two streets, S 47a'
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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.
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These facts, coupled with the significant mitigation of sprinklering these homes,
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led Mr. Anderson to his expert opinion that there would be no material detriment to public
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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 of that October 7h letter that would provide Mr. Peterson with a basis to"reissue"
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his August 15'h letter. In fact,Mr.Peterson has never reissued that letter. Instead, Mr.
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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.
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.20 C. The Hearing Examiner Should Grant the Variance and Remove Condition 13
to Remedy the City Staff s 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.
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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
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acceptable to the Fire Department. He wrote:
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"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 if the 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 of pavement. 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
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confirmation of the Fire Department's position that a temporary cul-de-sac would be
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acceptable. For the second time,the Fire Department expressly represented in a January
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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 as
23 part of the proposed development. 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 1150
572-7
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
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letter of October 7,2013; a letter that withdrew his August 15 h letter. The Applicant
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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 staff issues 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.
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Higgins in order to induce the Applicant to continue processing the preliminary plat
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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 staff report 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 of City staff in
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this matter and by Ms. Higgins' testimony about her soliciting Fire Chief Peterson's
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October 7th letter to induce the Applicant to support a secondary geotechnical study. The
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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
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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
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without a secondary access. This hoax only came to light weeks before the preliminary
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6 plat hearing after the Applicant spent tens of thousands of dollars 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
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Examiner has the opportunity to avoid such future claims by the Applicant and to remedy
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14 the outrageous behavior of City staff by granting the requested variance and striking
15 Condition 13.
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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.
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In the event the Hearing Examiner does not agree to reconsider the standards
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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.
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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 of the 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
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not sell his property or provide an easement for secondary access. Exhibit 37 shows on
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Sheet 1 of 1 another parcel of land(the"Southeasterly Parcel")located between Tract"B"
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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 access from Main Ave. S(102"d Ave. SE) at its
intersection with SE 18e St.
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As written,it appears that this condition can only be satisfied by acquiring a public
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access easement through the Easterly Parcel and providing a fire access road to the
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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, if Condition 13 is not deleted based upon the granting of
19 Applicant's variance request, Condition 13 should be revised to read as follows:
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Prior to recording the final plat, a secondary fire access shall be
21 constructed providing a second means of access from Main Ave S(102'd
Ave. SE) to the plat by fire trucks and emergency vehicles. The extent of
22 improvements for this secondary fire truck access shall be determined by
23 the City of Renton Fire Department in accordance with applicable fire
code standards and shall be the minimum necessary to provide for safe
24 and effective secondary fire access.
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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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7 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 of Van 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 of Renton 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 Examiner
2 polbrechts(a�,amwlaw.com
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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 of Washington that
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the foregoing is true and correct.
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EXECUTED at Seattle,Washington on this 16t'day of October, 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