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HomeMy WebLinkAboutItem 20 - 08-12-2020 - COR - Brief in ResponseITEM NO. 20 HEX-000161 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 1 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN PROCEEDINGS BEFORE THE CITY OF RENTON HEARING EXAMINER IN RE THE MATTER OF THE REQUEST FOR HEARING BY RENTON HOTEL INVESTORS, LLC AND KING COUNTY NO. CODE-20-000321 CITY OF RENTON’S BRIEF IN RESPONSE TO KING COUNTY’S HEARING BRIEF AND RENTON HOTEL INVESTORS, LLC’S OPENING BRIEF REGARDING RED LION DE- INTENSIFICATION SHELTER FINDING OF VIOLATION I. INTRODUCTION The City of Renton (“City”) provides this brief in response to the briefs submitted by King County and RHI1 on August 5, 2020 in this matter. The City also responds to the August 12, 2020 Second Declaration of Daniel Malone. II. EVIDENCE RELIED UPON The City relies on the witness testimony and other documentary evidence disclosed in and produced with the City’s August 5, 2020 and August 12, 2020 witness and exhibit lists. The 1 Capitalized terms not defined in this brief are defined in the City’s opening brief filed on August 5, 2020. HEX-000162 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 2 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City reserves the right to further rely on witness testimony and documentary evidence disclosed in and produced with King County’s and with RHI’s August 12, 2020 disclosures. III. RESPONSE TO THE BRIEF OF KING COUNTY A. Introduction. Local Health Official Jeff Duchin’s Local Health Officer Order “authorized” the County and local cities and towns only to use “legally available resources” to de-intensify homelessness shelters. COR 3, Attachments A and B. The order explicitly prohibited “illegal means or behavior” to accomplish this goal. Id. The Local Health Officer Order does not preempt City laws, nor would Dr. Duchin have the authority to in the current circumstances. Violation of City zoning and business license ordinances constitutes illegal behavior. RMC 1-3-1, 4-1-110.A, and 5-5-3.E.5. The violations are in fact punishable as crimes, but to this point the City has merely sought to exercise its remedial remedies in hope of achieving voluntary compliance with its laws while giving King County and DESC opportunity to seek out alternative arrangements for their shelter residents. Nevertheless, King County construes the Local Health Officer Order as a free pass for it and its contractors to indefinitely violate any laws that King County deems inconvenient or standing in the way of the least costly solution available to King County. Even accepting for the sake of argument that the unilateral, unpermitted conversion in April of the Property from a Hotel land use to what King County terms a “congregate shelter” was necessitated by public health justifications, the question before the Hearing Examiner is whether the current land use and current lack of business licenses constitute violations of City laws. They do. HEX-000163 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 3 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. DESC’s “Congregate Shelter” Is Not a Hotel Land Use. As detailed in the City’s Opening Brief, a Hotel land use’s primary function is rental as a place to sleep to transient members of the general public, who have a different primary home, for periods of not more than 30 days. And see RMC 4-5-050.A (adopting the International Building Code which, at its Section 202, defines “Transient” as “Occupancy of a dwelling unit or sleeping unit for not more than 30 days”). King County and RHI insist the current shelter use is consistent with such Hotel land use because RHI and other hotel owners have occasionally rented rooms out for more than 30 days. Even assuming that assertion is true, that situation is very different from how the Persons in Control are using the Property. Occasionally renting a few rooms out for more than 30 days is not something that the City would have reason to know about, and to the extent it was happening on an infrequent basis in only a small portion of a property, it is possible such use would be considered an allowed accessory use to a Hotel use pursuant to the process in RMC 4-2-050.C.4. However, here, converting the entire Property indefinitely to a long-term (first 90-day, then indefinitely month-to-month after that at King County’s sole discretion) single tenant rental for use as a congregate shelter” cannot reasonably be construed to retain the Hotel land use. C. The Persons in Control Are Not Exempt From City Business Licensing. King County argues that the de-intensification shelter is exempt from City business licensing requirements because neither DESC nor King County is a “business entity,” citing RMC 5-5-1.C.” King County Brief, p. 13. King County is citing City code language that does not exist; RMC 5-5-2 (Definitions) does not include “business entity” among its defined terms, and HEX-000164 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 4 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there is no “RMC 5-5-1.C.”2 Instead, RMC 5-5-3.A.1 requires each “person” who is “engaged in business” to hold a valid City business license, and both King County and DESC meet these definitions: A “person” means “any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club, company, joint stock company, business trust, municipal corporation, political subdivision of the State of Washington, corporation, limited liability company, association, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, non-profit, or otherwise and the United States of America or any of its instrumentalities.” RMC 5-5-2.U (emphasis added). Engaged in business” means, among other things, simply engaged in “business” which is defined as “All activities engaged in with the purpose of gain, benefit, or advantage to the taxpayer or to another person or class, directly or indirectly.” See RMC 5-5-2.N and 5-5-2.D (emphasis added). A City business license is required. D. The Local Health Officer Order Does Not Preempt City Zoning and Business License Laws, And Any Such Future Preemption Attempt Would Fail Because The Local Health Officer Does Not Have Authority Over Local Zoning And Licensing Laws. King County implies that it acquired and operates the Property as a congregate shelter pursuant to an “order” to do so by a Local Public Health Official Order. However, the Local Health Officer Order did not require the acquisition of the Red Lion Hotel & Conference Center. It did not even require de-intensification of shelters. It merely “authorized” the County (and the City) to use legal means to attempt to do so. See Local Health Officer Order (COR 3, Attachments A and B). 2 The City – and every other city in Washington that has a business licensing program – was required to update its business licensing ordinance in accordance with the “model ordinance on general business license requirements” developed pursuant to chapter 35.90 RCW. HEX-000165 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 5 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On its face, the Local Health Officer Order did not attempt to preempt the application of any law. Even had Dr. Duchin attempted to assert such preemptive authority, such assertion would be ineffective. The City and County each have broad powers constitutionally granted to them. Article XI, section 11 of the Washington Constitution provides that a city “may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” A state statute preempts a local ordinance only if the statute occupies the field, leaving no room for concurrent jurisdiction (“field preemption”), or if a conflict exists such that the statute and ordinance may not be harmonized (“conflict preemption”). Brown v. City of Yakima, 116 Wn.2d 556, 807 P.2d 353 (1991). King County asserts that the City’s zoning laws are preempted without citing to which statute allegedly preempts the City’s authority. King County cites generically to statutes, regulations, and cases conferring powers to local health officers and health boards, but the City does not dispute that those statutes are in effect and that Dr. Duchin has some authority; the City disputes any such authority has operated to preempt the City’s laws. King County does not explain which of the two preemption theories it relies on: field preemption or conflict preemption. Below, the City explains that its laws are not preempted under either theory. 1. There is no field preemption of the City’s zoning and licensing laws. A statute preempts the field and invalidates a local ordinance on the same subject if there is an express legislative intent to preempt the field or such intent is necessarily implied. Brown, 116 Wn.2d at 560. The local health official derives authority and powers from RCW 70. 05.070. Although that statute is broad, it contains no express or implied intent to preempt local zoning and business licensing authority. Without so much as a reference to such matters HEX-000166 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 6 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of local concern, RCW 70.05.070 cannot be read to expressly or impliedly occupy the field of zoning and licensing regulation. Local health officers undisputedly have powers to control and prevent the spread of contagious disease; however, those powers do not and should not be read to authorize blanket violation of all other (or any) substantive local laws, including the City’s zoning and licensing laws. A review of field preemption might be pertinent if both the City and King County were regulating the same subject – the spread of contagious disease. But here, the City is not in any way attempting to regulate the spread of contagious disease. It is merely exercising its independent constitutional authority to enforce its zoning and licensing laws. 2. There is no conflict preemption of the City’s zoning and licensing laws. Conflict preemption arises only if a local ordinance directly and irreconcilably conflicts with a state statute such that the two cannot be harmonized. Emerald Enters., LLC v. Clark Cty., 2 Wn. App. 2d 794, 814, 413 P.3d 92 (2018). Absent clear legislative intent to the contrary, one municipality must comply with the local ordinances of another municipality. Everett v. Snohomish County, 112 Wn.2d 433, 440-41, 772 P.2d 992 (2004). “[Z]oning ordinances of one subunit of government do not necessarily conflict with another governmental subunit's authority to condemn; reasonable zoning ordinances limit but do not necessarily eliminate another governmental subunit's power to locate its facilities through its eminent domain power.” 112 Wn.2d at 444. This is likely why Dr. Duchin has not issued any order purporting to expressly preempt the City’s zoning. Here, the City’s zoning and licensing laws neither directly nor irreconcilably conflict with either RCW 70. 05.070 or the Local Health Officer Order “authorizing” the de-intensification of shelters by lawful means. The Local Health Officer Order and City laws can easily be HEX-000167 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 7 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 harmonized: as explained in the City’s Opening Brief, the shelter could have been originally established in (and can be moved now to) zones in the City that allow “congregate residences” or “diversion facilities” or “diversion interim service facilities.” In fact, the City’s purpose of issuing the FOV and seeking minimal fines is to ensure that King County and DESC expend their limited resources (including available federal funds) on a long-term legal solution to providing shelter de-intensification for the duration of the COVID-19 emergency. 3. King County’s cited cases do not support its position that the City’s laws are preempted. None of the preemption cases cited by King County support a finding that the City’s zoning and licensing laws are preempted. In each of the cases, the local health officer’s underlying order specifically required the underlying challenged act (inapposite to the facts here), and none of the cases held that a county had preemption authority over a city’s constitutional authority to regulate businesses and land uses. In McBride v. Superior Court, 103 Wash. 409, 174 P. 973 (1918), the only issue of preemption was whether the state’s creation of a state board of health preempted Seattle’s concurrent regulation of public health. McBride, 103 Wash. at 416. The Court found no preemption. In Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 839 P.2d 324(1992), there was a challenge to Spokane County Health District’s needle exchange program, which it adopted to halt the spread of HIV. The challengers claimed the needle exchange program conflicted with the state’s prohibition on the transfer of drug paraphernalia. 120 Wn.2d at 148. But the Court found the prohibition on transfer of drug paraphernalia was not intended to prohibit a needle exchange program, because the legislature separately explicitly authorized HEX-000168 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 8 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the handling and return of needles through needle sterilization programs. Id., at 150-52.3 Thus, Brockett does not support the County’s contention that it is authorized to violate applicable zoning and licensing laws. Rather, it is yet another example of a court (and, in Brockett, it was the Washington Supreme Court) being unwilling to find the existence of conflict preemption to override a local jurisdiction’s authority to regulate matters of local concern. In conclusion, the City does not dispute the need for and value in de-intensifying homeless shelters. It contests the fact that King County chose and continues to choose to violate City laws in doing so. The Local Health Officer Order’s ban on using “illegal means” and authorization of de-intensification of shelters by using only “legally available resources” cannot be read to require or permit the ongoing and indefinite violation of City laws.4 E. King County’s Arguments About Preemption Distract From The Fact That King County Established The De-Intensification Shelter At The Property For Financial And Convenience Reasons. The City does not dispute the importance that social distancing plays in reducing the spread of COVID-19 in shelters, and the City supports King County’s desire to provide such social distancing as long as the community spread of COVID-19 poses an emergency threat to 3 King County falsely claims the Brockett Court held the “constitutional grant of authority to local health officials to make and enforce rules and regulations may prevail over other statutes, so long as the local regulations do not conflict with other public health statutes.” King County’s Hearing Brief, p. 9. The Court specifically found that the local health officials in that case were acting pursuant to statutory authority, not constitutional authority. Brockett, 120 Wn.2d at 148. Moreover, it did not hold the local health official’s authority preempted a state statute. It found that the state legislature’s express authorization of needle sterilization programs indicated a legislative intent that the prohibition on transfer of drug paraphernalia did not apply to such programs. Id. 4 King County relies upon a King County court judge’s denial of a preliminary injunction enjoining King County’s location of a quarantine and isolation facility in a motel purchased by King County. See exhibit marked KC009, Attachment A. The County correctly notes that such court order has no precedential value, but insists it is persuasive in this matter. It is not. The March 24 court order that King County relies on predates the March 31 Local Health Officer Order that is now at issue, merely denied a preliminary injunction, and does not make a ruling on the ultimate merit of the case. HEX-000169 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 9 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 public health. The City even temporarily refrained from enforcement of its zoning and business license laws to give King County an opportunity to search for a legally available site where the de-intensification shelter could be relocated. However, the briefing and arguments by King County evidence now that it had and presumably still has other options for de-intensifying the DESC shelters. Its reason for not pursuing those options is simply that doing so would be expensive and/or inconvenient. COR 21 ¶¶17, 20, and 21 (Amended Declaration of Leo Flor). 1. King County selected the Property because it was inexpensive. The record reveals that at the time of King County’s search for locations in March and April, the Red Lion Hotel & Conference Center was allegedly the only location that could serve 200 shelter residents, at a lease rate that King County was willing to pay. COR 21, ¶¶22-24. Notably, King County admits it had options to buy and/or lease – apparently just not at the price it wanted to pay or with over 200 rooms available. COR 17, ¶¶ 10, 19, 24, and 26 Declaration of Bryan Hague). The unspecified cost differences of King County’s other options certainly should not support a finding of preemption or irreconcilable conflict. Indeed, King County was awarded $530 million in federal Coronavirus Aid, Relief, and Economic Security CARES) Act funding, and as of June 30, 2020, the County Council had allocated just $181.1 million of those funds. COR 16 (Second Declaration of Leslie Clark), Exh. A (King County’s COVID-19 Response and Recovery Funding website). King County’s focus on providing the lowest cost location is not a legal excuse for violating the City’s laws. 2. King County selected the Property because it was convenient. King County also admits that it selected the Property for its convenience. The County indicates there were other affordable options with less capacity (100 rooms rather than the HEX-000170 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 10 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Property’s 200+), but King County apparently chose not to even explore those options. COR 17, 25-26. King County asserts that having the shelter residents split between multiple locations would be inconvenient or impracticable because DESC lacked staffing in April to move staff to multiple locations. See COR 21, ¶¶17, 20, and 21. King County also claims that some property owners were “entirely disinterested in leasing and hoped to sell their properties” or not willing to rent to sick or homeless people, so it was convenient to lease the Property from willing RHI. COR 17, ¶¶19, 20, and 27. Even if every other property owner in King County refused to contract – which King County does not assert – that would not mean that King County had no option other than to violate the City’s zoning laws. Indeed, King County emphasizes in its Brief that it holds the power of eminent domain to appropriate private property. King County’s Hearing Brief, p.8 (citing Brown v. Pierce County, 28 Wn. 345, 68 P. 872 (1902)). The fact that King County can exercise its independent powers of eminent domain does not mean that it (or its contractors) can disregard the City’s applicable zoning and licensing laws. Preemption was not even at issue in the Brown case cited by King County. 3. King County’s financial and convenience-based choices do not excuse its violation of City laws. The focus in King County’s briefing and declarations on the financial and convenience- based choices made in April ignores the fact that it is now August; months have passed. King County has had time to make funding choices to facilitate moving the shelter to one or more legally available locations. King County could have hired additional staff – seemingly a very beneficial thing to do during times of record unemployment and need for economic investment in new jobs – with CARES Act funding to pay for them. HEX-000171 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 11 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In addition, contrary to King County’s assertions otherwise, the existence of more costly and less convenient options simply does not mean that the City’s zoning and licensing laws irreconcilably conflict with the state-granted authority of the public health official. If the state legislature had intended to charge local health officials with the authority to preempt applicable local zoning laws, the legislature would have done so. The legislature knows how to provide the authority to waive or supersede other applicable laws when it wants to. The state legislature has granted the governor, the state’s highest ranking elected state official, with authority in emergencies to waive, suspend, or rescind statutory obligations and regulations. RCW 43.06.220(2)(g). Even that authority is limited to waivers lasting no more than 30 days without concurrence from the state legislature. RCW 43.06.220(4). It is inconceivable that the legislature would expressly limit the authority of the governor to waive applicable laws in an emergency, but impliedly grant an unelected local health official with unbridled and unchecked power to disregard local laws and regulations for as long as that official deems cheap and convenient. Under the maxim unius est exclusio alterious, and the above-cited holding in Snohomish County, 112 Wn.2d at 440-41, the proper interpretation is that a county official cannot suspend or waive application of lawfully adopted code provisions of a city. See State v. Swanson, 116 Wn. App. 67, 76, 65 P.3d 343 (2003) (holding that omitted language from the one statute, but not another, is intentional and not a legislative oversight). F. The City’s Code Enforcement Efforts Urge King County To Take Action In The Best Interests of The Shelter Residents. The City’s purpose in issuing the FOV and assessing fines is not to force the shelter residents back on the street or even back to their previous congregate shelter in Seattle. The Persons in Control forced the City’s formal code enforcement through their refusal to take HEX-000172 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 12 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 action to move the shelter to one or more locations where the shelter residents can locate legally without the uncertainty of being forced back into their previous living conditions. The Persons in Control emphasize in declarations how poor their residents’ living conditions were at their previous shelters; the City has no reason to dispute the asserted improvements in living conditions. At their previous shelters, residents were unable to achieve a good night sleep and violence was common. COR 18, ¶17 (Declaration of Nancy Sugg). Beds at previous shelters consisted of a mat or cot, placed inches apart from other residents. Shelter residents lacked access to showers, clean clothes, basic hygiene, and accessible bathrooms. Id., at ¶15. Shelter residents lacked places they could go during the day. Id., at ¶16. Shelter residents lacked basic medical care. Id., at ¶18. Shelter residents had difficulty finding three meals a day. Id., at ¶19. Shelter residents were grouped with others who use drugs and alcohol, making it more difficult for residents to remain clean and sober. Id., at ¶21. The purported improvements for these residents is quite remarkable. With improved living conditions, residents no longer have frequent skin problems, infections, or abscesses. COR 19, ¶¶31-32 (Declaration of Sam McKnight). Fights and chaos are reduced, moods are improved, medical care and health is improved, personal crises are reduced, and a desire to cooperate in care and participate in housing appointments is increased. Id. at ¶¶8-14, 23, 25, 27, and 28. The conditions are also apparently better for DESC staff. Id. at ¶¶18, 21-23. These apparent improvements are not attributable to COVID-19. They are attributable to humane treatment of human beings who are facing challenges in life completely unrelated to COVID-19. The improvements reflect the need for long-term housing options for residents – not a return to previous cramped, unhealthy conditions that bred rather than treated problems. The shelter should be relocated where the underlying land use is legal and can HEX-000173 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 13 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continue – during and then beyond the COVID-19 emergency. The CA-zoned Property is not that location. The City’s sincere hope is that King County will see that long-term need and spend its CARES Act funding to help relocate DESC to a legally zoned location where the shelter could continue for a longer period of time while even more permanent housing is found. Deep rooted problems for the shelter residents will not be solved during the pandemic, and the crime data in the City shows that those challenges have not gone away. However, relocating to a location where the residents will not be forced back to the streets or inadequate shelter at the end of the pandemic provides a much higher likelihood that the shelter residents can successfully transition to less chaotic lives for the long-term and avoid a return to the streets. Unfortunately, to date, King County has been unwilling to recognize that reality through the City’s efforts to gain voluntary code compliance. The City asks the Hearing Examiner to uphold the FOV and impose daily fines as a necessary means to more directly encourage King County to do the right thing for the DESC residents. IV. RESPONSE TO THE BRIEF OF RENTON HOTEL INVESTORS, LLC A. Introduction. RHI baldly asserts that the City is “targeting” the de-intensification shelter because of the disabilities of its residents. RHI Brief, p. 4. Not until after the issuance of the FOV did RHI affirmatively assert to the City that any of the 200-plus residents of the de-intensification shelter are disabled under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act; the same is true of King County; the same is true of DESC. Assuming merely for the sake of argument that every one of the de-intensification shelter’s residents has a disability, there is no evidence anywhere in the record that the City HEX-000174 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 14 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 took enforcement action against the de-intensification shelter because it houses a disabled population. The City took enforcement action because the use is a large residential use in a zoning district that does not allow any type of large residential use, whether for those with disabilities or those without disabilities. In other words, the City would have taken the same enforcement action if not one of the de-intensification shelter’s residents had a disability. B. By Offering Broad Arguments Rather Than Specific Analysis, RHI Assumes Discrimination Because The Shelter Residents Have Disabilities. More Is Required To Prove Discrimination, And There Is No Discrimination Here. RHI begins by arguing broadly that the ADA and the Rehabilitation Act apply to city zoning laws. RHI Brief, p. 2. That does not help RHI; the City agrees with that general proposition, and a statement of a truism proves nothing about what was done or not done here. RHI fails to recognize that ADA case law regarding zoning decisions also repeatedly reminds that cities have a fundamental interest in achieving their zoning goals. “[A] city's interest in achieving its zoning goals has long been recognized as a legitimate governmental interest.” Budnick v. Town of Carefree, 518 F.3d 1109, 1116-17 (9th Cir. 2008) (holding that there was no disability discrimination in a city’s decision to not approve a multi-level, continuing care retirement community in a zone in which it was not allowed). Next, RHI broadly argues that “there can be no serious dispute that the ADA and Rehabilitation Act protect the population at issue in this case.” RHI Brief, at p. 3. Although the City concurs that courts have found that persons recovering from substance abuse and suffering from alcoholism are disabled under the ADA and Rehabilitation Act, neither King County nor DESC has ever described the de-intensification shelter as a treatment center. Rather, the Persons in Control have consistently characterized the de-intensification shelter simply as a place for persons experiencing homelessness to be sheltered during the pandemic. HEX-000175 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 15 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 See COR 20, ¶¶ 8 and 48 (Amended Declaration of Daniel Malone) and COR 21, ¶¶ 10 and 24. Although King County asserted generically that people experiencing homelessness are medically vulnerable and have higher rates of disability than the general public, DESC has not asserted that any of the shelter residents suffer from a disability, as that term is defined under the ADA or the Rehabilitation Act, or requested accommodations thereunder. It is only RHI who implies that all persons experiencing homelessness have drug and alcohol problems. Moreover, although ADA and Rehabilitation Act protections apply to persons recovering from illegal substance abuse addiction, those protections do not apply to active users of illegal substances. James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012) (“[T]he ADA also provides that "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs”). Here, DESC’s model of offering the “lowest- barrier shelters in the region” means that the de-intensification shelter merely “discourages” substance abuse by shelter residents. COR 11, Exh. F; COR 11, Exh. C (Renton Red Lion Operations Plan, Q&A 2). Contrast Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 48 2d Cir. 1997) (finding that an outpatient drug and alcohol rehabilitation treatment center had been discriminatorily banned, the court chided the city because the program at issue indisputably does not tolerate drug use by its participants”). Nevertheless, the factual resolution of whether some, all, or none of the de- intensification shelter residents have disabilities is not material to the resolution of the FOV because – even assuming for the sake of argument that the shelter residents have disabilities – the City has not engaged in any disability discrimination. HEX-000176 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 16 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. There is no “per se” discrimination. RHI asserts that the City’s actions constitute “per se violations” of the ADA and the Rehabilitation Act. RHI Brief, p. 3. However, only “facially discriminatory laws present per se violations [of the ADA].” Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999). Here, the City’s zoning laws and the FOV are facially neutral. As to the City’s zoning laws, the land uses recognized by the Renton Municipal Code to which the de-intensification shelter is analogous – congregate residence, diversion facility, and diversion interim service facility – are all defined in such a way that they could house persons with disabilities or persons without disabilities. See RMC 4-11-030 (broad “congregate residence” definition could offer housing to persons with disabilities or to persons without disabilities); and see RMC 4-11-040 (“diversion facility” and “diversion interim service facility” definitions anticipate housing for active users of illegal chemical substances (not qualified as disabled”) but also anticipate housing for persons with mental illness (qualified as “disabled”)). These three uses are all prohibited in the CA zone irrespective of whether a particular instance of such use houses persons with disabilities or persons without disabilities. See RMC 4-2-060 zoning use table). Contrast with Innovative Health Sys., 117 F.3d at 49, in which there were similar uses in the same district” that the City of White Plains had allowed, contributing to the court’s finding of discrimination. And see COR 14, ¶8 (Second Declaration of Vanessa Dolbee) explaining that the City has not allowed uses similar to the de-intensification shelter to operate in the CA zone). As to the FOV, it is also facially neutral. See COR 1. The FOV emphasizes that the de- intensification shelter does not meet the scope of a Hotel land use because the shelter residents reside at the Property; the FOV makes no reference to the shelter housing persons HEX-000177 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 17 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with disabilities, and the City did not issue the FOV for that reason. See COR 15, ¶¶4-6 (Second Declaration of Donna Locher) (explaining that the City did not enforce against the de- intensification shelter while refraining from enforcing against similar uses; there have been no similar uses). 2. No discrimination under theories of disparate treatment or disparate impact. RHI does not assert discrimination under a disparate treatment or disparate impact theory, but the City anticipates that one of the Persons in Control could raise these theories at hearing so resolves them here. To prove disparate treatment on the basis of disability, the Persons in Control must produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated” the City. Pacific Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013). Here, RHI did not offer any evidence of a discriminatory motive on the part of the City; RHI’s conclusory statement that the City “targeted” the de-intensification shelter is absent any substantiation. Even if the record could be read to support circumstantial evidence of possible discriminatory motive, the record is replete with evidence of the City’s neutral motivation to relocate a large residential use outside of a zoning district that prohibits large residential uses. To prevail on a claim of disparate impact on the basis of disability, the Persons in Control must offer data or statistics showing that the application of the City’s zoning laws and enforcement practices have a disproportionate effect on persons with disabilities. See Budnick, 518 F.3d at 1118 (analyzing disparate impact in a Fair Housing Act context). Here, the City’s enforcement actions urging King County to relocate the de-intensification shelter to a location that allows large residential uses has an equal effect on shelter residents with disabilities and HEX-000178 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 18 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those without; the actions equally encourage King County to reestablish the use where the shelter residents have the assurance that they can reside in the facility through and beyond the duration of the COVID-19 emergency. 3. The City did not fail to reasonably accommodate. RHI does not directly assert that the City failed to reasonably accommodate, but – again the City anticipates that the argument could be raised at hearing so resolves it here. The City did not fail to reasonably accommodate the de-intensification shelter when the City took enforcement action. Notably, none of the Persons in Control had ever requested an accommodation to allow the de-intensification shelter to operate in the CA zone. In fact, they did not make affirmative assertions of disability until RHI submitted its August 5, 2020 brief, when it was strategic to do so in opposition to the FOV. Even if the Persons in Control had sought an accommodation, the City could have denied the request without violating the ADA or Rehabilitation Act. In the context of a city’s zoning laws, a reasonable accommodation for a use variance is “required only if it is necessary to avoid discrimination. That an alteration in zoning rules would be convenient or helpful to a plaintiff does not make the change necessary.” See Wisconsin Cmty. Servs. v. City of Milwaukee, 465 F.3d 737, 756 (7th Cir. 2006) (Easterbrook, J., concurring). Critically, when the proposed use at issue would not be allowed in the requested location regardless of whether it would house persons with disabilities or persons without disabilities, there is no failure to accommodate: We agree with the district court that if a building permit would not be granted even for comparable "traditional" residences (that is, residences where persons without disabilities can live) in the relevant area, a municipality is not required to make accommodations that would facilitate a building permit for housing designed for the disabled. HEX-000179 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 19 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Forest City Daly Hous., Inc. v. Town of N. Hempsted, 175 F.3d 144, 152 (2d Cir. 1999) (affirming the district court’s holding that a town had not discriminated when it did not issue a permit for an assisted living facility on land zoned for commercial uses only). Just as in Forest City Daly Housing, here, the large residential use at issue would not be allowed in the CA zone whether the de-intensification shelter residents have disabilities or do not have disabilities. Finally, although King County has now explained that it chose the Property in part because it was relatively cheap, an accommodation to make a project “financially feasible” does not qualify as a reasonable accommodation. Nikolich v. Arlington Heights, 870 F. Supp. 2d 556, 565 (N.D. Ill. 2012). V. RESPONSE TO THE AUGUST 12, 2020 “SECOND DECLARATION OF DANIEL MALONE” AND ACCOMPANYING NOTICE OF APPEARANCE On August 12, 2020, DESC Director Daniel Malone filed a “Second Declaration of Daniel Malone” because “[t]he City of Renton makes two arguments in its opening brief that I would like to respond to.” Second Decl. of Malone, ¶2. First, Mr. Malone requests that the FOV not be considered final as to DESC because although (1) he admits that DESC chose not to request a hearing (2) DESC coordinated with King County and chose to have King County’s work in this matter cover DESC’s position. See id., ¶¶3, 4. DESC should live with its choice to rely on King County. Mr. Malone admits that he was fully involved” in the City’s, King County’s, and RHI’s discussions to reach the hearing stipulation in this matter. Id., ¶7. That stipulation set August 5, 2020 as the deadline for the parties to file opening briefs. See Prehearing Order attaching the stipulation. DESC could have chosen to file a brief then, but it participated in the August 5 deadline by filing only an Amended Declaration of Daniel Malone.” In a matter that the parties expressly elected to be decided by written testimony only (see Prehearing Order), DESC has testified three times HEX-000180 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 20 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through the Declaration of Daniel Malone (COR 2), the Amended Declaration of Daniel Malone COR 20), and now the Second Declaration of Daniel Malone. Whether the FOV is final as to DESC is to be decided by the Hearing Examiner (as the City noted in its Opening Brief at Part IV.C), but it is undisputed that DESC has been allowed to testify in this matter despite its admitted choice to not request a hearing. Second, Mr. Malone offers that the de-intensification shelter at the Property is a temporary shelter, not a permanent residence, and our mission is to find permanent housing for our main shelter clients.” Second Decl. of Malone, ¶7. As briefed above, the City supports this mission, but that does not change the fact that the de-intensification shelter is not a Hotel land use and constitutes a large residential use in a zone that does not allow large residential uses, in violation of City laws. VI. CONCLUSION For the reasons set forth above, the City respectfully requests that the Hearing Examiner, acting on designation on behalf of the CED Administrator, issue a final determination that the Red Lion Shelter (1) is a land use not allowed in the CA zoning designation; (2) operates without a Renton business license contrary to RMC 5-5-3.E.5; and (3) will accrue fines. Respectfully submitted this 12th day of August, 2020. By: /s/ Shane Moloney Shane Moloney City Attorney City of Renton Attachment: Declaration of Service HEX-000181 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 21 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF SERVICE I declare under penalty of perjury under the laws of the State of Washington that on August 12, 2020, a true and correct copy of the foregoing document was served upon the parties listed below via the method indicated: Renton Hotel Investors, LLC: Sumeer Singla Williams, Kastner & Gibbs PLLC ssingla@williamskastner.com X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service King County: Howard Schneiderman Senior Deputy Prosecuting Attorney Howard.Schneiderman@kingcounty.gov Youn-Jung Kim Deputy Prosecuting Attorney Jina.Kim@kingcounty.gov Lena Madden Deputy Prosecuting Attorney Lena.Madden@kingcounty.gov X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service HEX-000182 CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND RENTON HOTEL INVESTORS, LLC – Page 22 Renton City Attorney 1055 S. Grady Way Renton, WA 98057-3232 Phone: 425.430.6480 Fax: 425.430.6498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DESC: Daniel Malone Downtown Emergency Service Center (DESC) dmalone@desc.org X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service DATED this 12th day of August, 2020, at Maple Valley, Washington. s/ Stephanie Rary Stephanie Rary, Paralegal With a copy to: Elaine L. Spencer, WSBA #6963 Northwest Resource Law PLLC espencer@nwresourcelaw.com Lisa Chaiet Rahman, WSBA #51531 Northwest Resource Law PLLC lrahman@nwresourcelaw.com X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service HEX-000183