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MAJOR AMENDMENT - 1
BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Liberty Gardens Preliminary Plat
Major Amendment; SEPA Appeal
LUA08-093, ECF, MOD
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FINAL DECISION
Summary
The Applicant has applied for a Major Amendment to increase the number of lots in a subdivision
from 36 to 46 lots. The application is denied and an associated appeal under the Washington State
Environmental Policy Act (“SEPA”) is dismissed as moot.
The Major Amendment is denied because it proposes a density that exceeds that allowed by City of
Renton zoning standards. The Applicant proposes to exceed Renton standards through the use of
King County transfer of development rights (“TDR”). The Applicant apparently believes that it has
vested to the TDR regulations because it filed its 36 lot subdivision application in 2004 prior to the
annexation of the subdivision property into the City of Renton from unincorporated King County.
The TDRs do not apply to the proposed 10 additional lots because those lots were not identified in the
2004 application to King County. For subdivisions, the vested rights doctrine only applies to uses
identified in the application. Put differently, the Applicant vested to an application for a 36 lot
subdivision, not a 46 lot subdivision.
Testimony
The hearing encompassed almost five hours of testimony, mostly from the Applicant. Since the
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MAJOR AMENDMENT - 2
application is denied on the narrow grounds of vesting, and the testimony had little to do with this
issue, no summary of testimony is provided.
Exhibits
Exhibits 1-8 identified in the June 13, 2011 staff report, in addition to the staff report
itself, were all admitted into the record during the June 13, 2011 hearing. In addition, the
following documents were also admitted into the record during the hearing:
9. Letter from Daley-Morrow-Poblete to Rocale Timmons, dated 1/11/2011.
10. Letter from Daley-Morrow-Poblete to Rocale Timmons, dated 2/10/2011.
11. King County MDNS; Liberty Grove Plat dated 12/16/2003
12. Renton MDNS: Liberty Gardens.
13. KC Comprehensive Plan Policy U-124.
14. Density and Dimension Calculations for Liberty Grove (EXAMPLE).
15. Letter from Daley-Morrow-Poblete (DMP) to Rocale Timmons, dated 10/18/2011.
16. Side by Side Comparison of Liberty Gardens and Cavalla Plat, dated 9/23/2010.
17. Side by Side Comparison of Liberty Gardens and Cavalla Plat, dated 6/9/2010.
18. Highlighted King County Assessor Map SE 14-23-05, dated 8/17/2010.
19. King County Assessor Map SE 14-23-05, dated 8/17/2010.
20. Letter (10-page) from Daley-Morrow-Poblete to Office of the Hearing Examiner,
dated 6/13/2011.
21. Letter (11-page) from Daley-Morrow-Poblete to Office of the Hearing Examiner,
dated 6/13/2011.
22A. Report of Proposed Preliminary Plat of Liberty Grove Contiguous Rezone hearing,
dated 2/10/2004.
22B. Report of Proposed Preliminary Plat of Liberty Grove Rezone hearing, dated
2/10/2004.
23. Report and Decision for Proposed Preliminary Plat for Liberty Grove Contiguous,
dated 2/27/2004.
24. 3 King County Ordinances dated 5/6/2004.
25. Plats and legal descriptions of Liberty Grove, Liberty Grove Contiguous, Liberty
Lane, and Nichol’s Place.
26. Letter to City of Renton Hearing Examiner from CARE, dated 6/13/2011.
27. Letter to Hearing Examiner from Michael Rae Cooke, dated 6/8/2011.
Findings of Fact
Procedural:
1. Owner. David Petrie.
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MAJOR AMENDMENT - 3
2. Hearing. The Examiner held a hearing on the application at 9:00 am on June 13, 2011, in the
City of Renton City Council Chambers.
Substantive:
3. Description of Proposal. The Applicant is requesting a Major Amendment to the approved
Liberty Gardens Preliminary Plat. The Amendment includes the utilization of TDRs for ten
additional lots, resulting in a 46 lot single family subdivision. The Amendment includes a revised
lot layout, landscaping and utility plan. The original application, for 36 lots, was filed with the
King County Department of Development and Environmental Services (KC DDES) for
Environmental (SEPA) Review and Preliminary Plat approval on December 29, 2004 under KC
DDES File No. L04P0034. Prior to King County making any final decision on the application, the
City of Renton annexed the property of the subdivision on August 11, 2008. Applying vested King
County regulations, the City approved the preliminary plat application on April 28, 2009.
The Applicant filed an application for the subject Major Amendment at a date that is not readily
evident from the record. An appeal of the associated SEPA mitigated determination of
nonsignificance was filed by the Applicant by letter dated January 11, 2011. See Ex. 9.
The proposed subdivision is for a parcel of property 8.95 acres in size. The proposed density
would be approximately 5.3 dwelling units per acre utilizing King County TDRs. The subdivision
is currently located within the R-4 zoning district of the City of Renton.
4. Disclosure of Uses Within King County Application. The application for the 2004 King
County 36 lot subdivision application is not in the record and there was no testimony provided on
what uses were proposed in that application. Given that if the Applicant had planned on using
TDRs at the time of the 2004 applicant it would have simply applied it at that time, more likely
than not TDRs were not proposed or identified in the 2004 application.
Conclusions of Law
Procedural:
1. Authority of Hearing Examiner. RMC 4-7-080(M) provides that any changes to an approved
preliminary plat shall be processed as a Major Amendment if the amendment includes any
increase in the number of lots. The subject proposal qualifies as a Major Amendment
because it includes an increase of ten lots. RCW 4-7-080(M)(3) provides that the Examiner
shall hold a hearing and issue a final decision on requests for Major Amendments.
RMC 4-8-110(E) provides that the Examiner shall hold a hearing and issue a final decision
on SEPA threshold determinations.
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MAJOR AMENDMENT - 4
Substantive:
2. Vesting of TDR’s. The proposed Major Amendment is not vested to the King County TDR
program or any other regulations in effect upon the vesting of the 2004 King County Liberty
Gardens application (KC DDES File No. L04P0034).
The seminal case on the application of the vested rights doctrine to subdivisions is Noble Manor
Co. v. Pierce County, 133 Wn.2d 269 (1997). In Noble Manor, Pierce County approved a short
subdivision to divide property into three lots. The applicant clearly disclosed in its application that
the lots were to be used for duplexes. At the time the applicant filed its short subdivision
application, Pierce County regulations required a minimum of 13,000 square feet for duplex lots.
The three lots proposed by the applicant all exceeded 13,000 square feet. Subsequent to the filing
of the application, but prior to its approval, Pierce County adopted an interim ordinance that
mandated a minimum of 20,000 square feet for duplex lots. All three lots proposed by the
applicant were smaller than 20,000 square feet. Pierce County subsequently approved the short
plat and then issued building permits for construction of the duplexes. After the applicant had
undergone substantial construction of the duplexes, Pierce County issued stop work orders on
grounds that the interim ordinance prohibited duplexes on lots less than 20,000 square feet. The
applicant appealed the stop work orders, in part upon the grounds that it had vested to the 13,000
square foot duplex requirements and was not subject to the 20,000 square foot minimum lot size
imposed by the interim ordinance.
The Court of Appeals concluded that for subdivisions, an applicant vests to the uses disclosed in
the subdivision application. The Court’s analysis focused upon an interpretation of RCW
58.17.033(1), which provides as follows:
A proposed division of land, as defined in RCW 58.17.020, shall be considered under
the subdivision or short subdivision ordinance, and zoning or other land use control
ordinances, in effect on the land at the time a fully completed application for
preliminary plat approval of the subdivision, or short plat approval of the short
subdivision, has been submitted to the appropriate county, city or town official.
Pierce County argued that the only right that vests under RCW 58.17.033 was the right to subdivide
the property into smaller lots and that there was no vesting to any use rights. The applicant argued
that the language in RCW 58.17.033, that the proposed division be considered under the “zoning or
other land use control ordinances in effect on the land,” has no meaning under the County's
interpretation. The Court agreed with the applicant’s position. It cited a legislative bill report for
RCW 58.17.033, which noted that the statute extended the vested rights doctrine to subdivision
applications, not just divisions. The Court noted that the purpose of the vested rights doctrine is to
provide a measure of certainty to developers and to protect their expectations against fluctuating
land use policy. The Court concluded as follows:
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MAJOR AMENDMENT - 5
We conclude that when the Legislature extended the vested rights doctrine to plat
applications, it intended to give the party filing an application a vested right to have
that application processed under the land use laws in effect at the time of the
application. Therefore, if the County requires an applicant to apply for a use for the
property in the subdivision application, and the applicant discloses the requested use,
then the applicant has the right to have the application considered for that use under
the laws existing on the date of the application. If all that the Legislature was vesting
under the statute was the right to divide land into smaller parcels with no assurance
that the land could be developed, no protection would be afforded to the landowner.
The Court also more specifically assessed what uses vest in a subdivision application:
Two alternatives are possible. Either (1) all uses allowed by the zoning and land use
laws on the date of the application for the short plat should be vested at the time of
application, irrespective of the uses sought in an application; or (2) an applicant
should have the right to have the uses disclosed in their application considered by the
county or local government under the laws in existence at the time of the application.
We conclude the second alternative comports with prior vesting law. In West Main,
this Court stated that under the vested rights doctrine, ‘developers who file a timely
and complete building permit application obtain a vested right to have their
application processed according to the zoning and building ordinances in effect at the
time of the application.’ West Main Assocs., Inc. v. City of Bellevue, 106 Wash.2d 47,
50-51, 720 P.2d 782 (1986) (emphasis added); see also Vashon Island, 127 Wash.2d
at 767-68, 903 P.2d 953 (citing Friends, 123 Wash.2d at 522, 869 P.2d 1056 (a land
use application will be considered under the laws in effect at the time of the
application's submission)). Additionally, the purpose of the vesting doctrine is to
protect the expectations of the developer against fluctuating land use laws. E.g.,
Friends, 123 Wash.2d at 522, 869 P.2d 1056; West Main, 106 Wash.2d at 51, 720
P.2d 782. The statute provides that the proposed division of land shall be considered
under the zoning or other land use control ordinances in effect at the time of the
application. RCW 58.17.033(1). Our construction of the statute makes ‘permit
speculation’ less probable. Short plats could not simply be frozen under existing
zoning for any possible use without an application for a particular use.
Since the applicant in Noble Manor had disclosed in its application that the short subdivision was
proposed for duplexes, the Court held that it had vested to the minimum lot size applicable to
duplexes and that it could proceed with construction.
As determined in Finding of Fact No. 4, the Applicant of this case submitted an application for a 36
lot subdivision to King County in 2004. This application did not identify the densities proposed in
the modification.
Even if the 2004 application did reserve the right to modify the proposed densities by the County’s
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MAJOR AMENDMENT - 6
TDR program, it is unlikely this reference would vest the right to such a modification. The Court’s
references to “the application” in legislative history and prior case law establish that RCW
58.17.033(1) only applies to the application under review and not future applications that would
encompass an increase in density or any other modification. The judicial (and now legislative)
requirement for a “complete application” is a vesting point designed to prevent permit speculation
that demonstrates a substantial commitment by the developer, such that good faith of the applicant
is generally assured. Graham Neighborhood Ass’n v. F.G. Associates, ___P.3d_____(2011). To
allow a developer to lock in vested rights for future modifications by simply providing lists of every
conceivable modification would invite the very permit speculation that the requirements for a
complete application are intended to prevent.
It is slightly unclear from the Noble Manor case as to what level of detail is locked into a use
description, i.e. since the Applicant likely disclosed in its King County subdivision application that
it intended to develop its subdivision for residential purposes, would this disclosure encompass any
density of residential use? The answer is most likely that the disclosure only vests to the proposed
densities and not broadly to every conceivable type of density. Going back to the judicial policy
forbidding permit speculation, there is a vast difference between investing the time and money in
proposing a specific subdivision design based upon a specific density to broadly proclaiming that
the subdivision will accommodate residential use. Minor changes in density consistent with overall
project design may be acceptable as an inevitable result of the iterative process of subdivision
review1, but major increases in density that were clearly beyond the contemplated design and that
could only be accomplished by the implementation of TDRs are not.
One distinguishing feature of the Noble Manor case is that it concerned a short subdivision. As
discussed above, the Noble Manor ruling rests upon an interpretation of RCW 58.17.033, which
expressly applies to short and long subdivisions. However, long subdivisions are also subject to
RCW 58.17.170, which provides in relevant part as follows:
…A subdivision shall be governed by the terms of approval of the final plat, and the
statutes, ordinances, and regulations in effect at the time of approval under RCW
58.17.150(1) and (3) for a period of five years after final plat approval unless the
legislative body finds that a change in conditions creates a serious threat to the public
health or safety in the subdivision.
In construing the statute above, the Court noted it gave rights to a developer to use a subdivision in
accord with “the laws in effect on the date of final plat approval (not the date of application) for a
period of five years from the date of approval.” In this case the property subject to the application
was annexed into the City prior to approval of the preliminary plat by the City. It does not appear
that final plat approval was ever granted. Even if it were, the application subject to vesting was the
original application submitted to King County. For the same policy reasons governing RCW
1 The dividing line may well be what separates a minor from a Major Amendment, but that is an issue that can be
further investigated when and if the issue arises in another application.
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MAJOR AMENDMENT - 7
58.17.033, the present Major Amendment is for a separate application, subject to its own individual
vesting. The application of RCW 58.17.170 to the original subdivision application would not result
in the vesting of any King County TDR regulations applicable to this modification application.
King County vesting regulations are consistent with the interpretation of state law above. KCC
19A.12.030(A) provides that revisions that result in any substantial changes shall be treated as new
applications for purposes of vesting. KCC 19A.12.030(A) further provides that the creation of
additional lots constitutes a substantial change. Consequently, King County regulations themselves
prohibit the vesting of the King County TDR regulations in this case. KCC 19A.12.030(A) was
adopted by King County in 1999, well before the Applicant vested its subdivision application.
Arguably, the Examiner would be bound by KCC 19A.12.030(A), even if it conflicted with state
law, since the Examiner has no authority to invalidate local ordinances. See, e.g., LeJeune v.
Clallam County, 64 Wn. App. 257 (1992)(authority of administrative body such as examiner must
be either expressly granted by ordinance or statute or implied and is not inherent); Exendine v. City
of Sammamish, 127 Wn. App. 574 (2005)(hearing examiners do not have the authority to enforce,
interpret or rule on constitutional challenges).
4. Proposed Modification Inconsistent with Renton Subdivision Criteria. RMC 4-7-170(C)
requires a subdivision to conform to applicable density requirements. RMC 4-2-110A provides that
the maximum density for property zoned R-4 is four dwelling units per acre. The proposed density
is 5.3 dwelling units per acre, which violates RMC 4-2-110A.
5. SEPA Appeal Moot. A case is moot if a court cannot provide effective relief. Davidson
Series and Associates v. Kirkland, 159 Wn. App. 616 (2011). In this case the proposal is
subdivision modification is denied because it fails to comply with RMC 4-2-110A. Given this
factor, a ruling on the SEPA appeal would not provide any relief to the parties and is moot.
DECISION
Application for the proposed Major Amendment is denied. The associated SEPA appeal is
dismissed.
DATED this 27th day of June, 2011.
________________________________
Phil A. Olbrechts
City of Renton Hearing Examiner
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MAJOR AMENDMENT - 8
Appeal Right and Valuation Notices
RMC 4-8-110(E)(9) and/or RMC 4-8-110(F)(1) provides that the Major Amendment decision of
the hearing examiner is final subject to appeal to the Renton City Council. RMC 4-8-110(E)(9)
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. A request for reconsideration to the hearing e
examiner may also be filed within this 14 day appeal period as identified in RMC 4-8-110(E)(8)
and RMC 4-8-100(G)(4). A new fourteen (14) day appeal period shall commence upon the
issuance of the reconsideration. Pursuant to WAC 197-11-680(3)(a)(iv) there is no further
administrative appeal available for the SEPA threshold determination. Additional information
regarding the appeal process may be obtained from the City Clerk’s Office, Renton City Hall – 7th
floor, (425) 430-6510.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.