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HomeMy WebLinkAboutItem 58 - 09-14-2020 - COR - Limited Motion for Clarification of August 31, 2020 Final DecisionITEM NO. 58 HEX-000706 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION I. INTRODUCTION The City of Renton (the “City”) respectfully submits this limited motion for clarification of the Hearing Examiner’s August 31, 2020 Findings of Fact, Conclusions of Law and Final Decision (“ Decision”) regarding the Renton Red Lion Finding of Violation (“FOV”).1 II. LIMITED MOTION FOR CLARIFICATION This motion is limited in scope. It does not challenge the Decision’s determination sustaining the FOV violations. Decision at 1:20. In this limited motion for clarification, the City 1 Separately, on or before the deadline of September 18, 20220, the City will respond to the Downtown Emergency Services Center’s (“DESC’s”) September 11, 2020 Motion for Reconsideration. HEX-000707 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 seeks targeted clarification from the Hearing Examiner on three discrete issues relating to the corrective action: 1) The Decision constitutes a “final determination” regarding the FOV, rather than a “decision on appeal.” 2) There is no evidence in the record of any actions after April 9, 2020 by King County or DESC (or RHI) to relocate the deintensification shelter away from the Red Lion property. 3) Statements in the Decision that exceed the scope of the two violations stated in the FOV are non-controlling obiter dicta. For the reasons explained below, the City respectfully requests that the Hearing Examiner issue a clarification. A. The Decision Constitutes a “Final Determination” Regarding the FOV Regardless of RMC 1-3-2 References to “Appeal.” At footnote 1, the Decision characterizes the proceeding at issue as an “appeal” rather than a “request for hearing.” The City respectfully requests that the Hearing Examiner clarify that although RMC 1-3-2.E inartfully uses both the terms “request for hearing” and “appeal,” the Decision is a “final determination” regarding the two violations stated in the FOV rather than a “decision on appeal.” At RMC 1-3-2.C.2, the Renton Municipal Code lays out the process by which an alleged violator is found to be in violation of City code. First, the City issues a Finding of Violation. See RMC 1-3-2.C.2.a. Then, the Finding of Violation is “deemed final” unless the alleged violator timely requests a hearing. See RMC 1-3-2.C.b. If the alleged violator timely requests a hearing, the “final determination” regarding the Finding of Violation is made as a result of such hearing by the Administrator of the Department of Community & Economic Development (“CED”) or his/her designee: HEX-000708 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 The Finding of Violation is deemed final unless a Violator requests a hearing before the Administrator under the process detailed in RMC 1-3-2.E.1, Opportunity for a Hearing. The failure to request, submit a written argument and/or appear at a hearing makes the Finding of Violation final. If a hearing is requested, the final determination of the Finding of Violation shall be made by the Administrator, or his or her designee. RMC 1-3-2.C.2.b (italics added). Here, both King County and RHI timely requested a hearing, and the CED Administrator named the Hearing Examiner as the hearing designee.2 Accordingly, the parties’ August 14, 2020 proceeding constituted the hearing called for in RMC 1-3-2.C.2.b, and the City requests clarification that the resulting Decision constitutes the City’s “final determination” as to the FOV. This clarification will aid not only the parties to this proceeding but also avoid confusion in future RMC 1-3-2 code enforcement proceedings as well.3 B. There Is No Evidence in the Record of Efforts to Relocate the Deintensification Shelter after April 9, 2020. The Decision found that “King County has made reasonable unsuccessful efforts to find alternative locations.” Decision at 2:16-17. The wording of this finding could imply that, after opening the deintensification shelter on April 9, 2020, King County made continued efforts to find alternative locations. There is no such evidence in the record. The declarations from King County and DESC about the siting decision all describe efforts pre-dating the April 9, 2020 opening at the Renton Red Lion property. See declarations from DESC’s Daniel Malone (COR 2, COR 20), King County’s Leo Flor (COR 4, COR 21); and King County’s Bryan Hague (COR 17). 2 See City of Renton’s Opening Brief in Support of Finding of Violation Regarding Red Lion De-Intensification Shelter City’s Opening Brief”) at 2:4-5. 3 The distinction is important for the current and future code enforcement proceeding participants to know whether the proceedings are governed by RMC 4-8-110. Because the FOV is a Chapter 1-3 RMC code enforcement action subject to review by the Administrator, not a permit decision subject to appeal to the Hearing Examiner, the appeal process in RMC 4-8-110 does not apply. HEX-000709 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 The City requests clarification that there is no evidence in the record of efforts to relocate the deintensification shelter after April 9, 2020. That complete lack of effort was a primary motivating factor for the City initiating formal code enforcement proceedings. C. Statements in the Decision Unnecessary to Decide the FOV’s Two Violations Constitute Non-Controlling Obiter Dicta. The hearing before the Hearing Examiner was confined to addressing two alleged violations of the Renton Municipal Code: (1) “Violation 1: “Land Use Not Allowed in Zoning Designation” and (2) “Violation 2: Operating without a City of Renton Business License.” See City of Renton Exhibit 1 (or, “COR 1”), the Finding of Violation, pp. 2, 5. The City respectfully requests that the Hearing Examiner clarify that those portions of the 23-page Decision that exceed the scope of deciding the two alleged violations constitute non-binding obiter dictum. Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.” Ass'n of Wash. Bus. v. Dep't of Revenue, 155 Wn.2d 430, 442 n.11, 120 P.3d 46 (2005) (quoting State v. Potter, 68 Wn. App. 134, 150 n.7, 842 P.2d 481 (1992)). This general proposition applies in land use contexts, as well. See, e.g., Noble Manor v. Pierce County, 133 Wn.2d 269, 288-89, 943 P.2d 1378 (1997) (“it is imprudent to comment on an issue not necessary to decide the case . . . . Such dicta are not controlling precedent”) (Sanders, J., concurring). Here, statements in the Decision that exceed the scope of deciding the FOV’s two alleged violations, constituting non- controlling dicta. 1. Statements about how an unclassified use permit process will come out are dicta. One category of dicta in the Decision are statements predicting how CED might decide an unclassified use permit for the Property. The Hearing Examiner appropriately held that the HEX-000710 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 Renton Municipal Code (RMC) assigns jurisdiction to issue unclassified use interpretations exclusively to [CED],4 which is why this Decision does not include a final ruling on whether the shelter should be authorized as an unclassified use.” Decision at 2:7-9. After concluding in the Decision that the Hearing Examiner did not have jurisdiction over the unclassified use permit process, further statements about how CED might or might not decide an unclassified use permit application must be regarded as non-controlling dicta. See Griffith v. City of Bellevue, 130 Wn.2d 189, 193-94, 922 P.2d 1996 (in a writ action regarding a rezone, the Court rejected as dicta that portion of a prior decision offering analysis on an issue over which the court held it had no jurisdiction) (citing Birch Bay Trailer Sales, Inc. v. Whatcom County, 65 Wn. App. 739, 745, 829 P.2d 1009 (1992)). An example of such dicta about the outcome of the unclassified use permit process is the entirety of the Decision’s Legal Analysis Subsection 5 titled “Deintensification shelter has Reasonable chance of Securing Unclassified Use Permit in CA Zone.” Decision at 15:1 – 16:2. A second example of dicta about the unclassified use permit outcome is the Decision’s projection that the deintensification shelter might qualify at night as a “hotel” land use. Decision at 14:1- 29 (going so far as to assume which support services might or might not be available at night, without any such facts in the record). It is important for the record to clarify the scope and authority of the Hearing Examiner’s review in case the decision or later related decisions are appealed. The reason this case proceeded as a code enforcement action under RMC 1-3-2 is because the Persons in Control did not apply for permits or business licenses prior to the City’s FOV. An application 4 The Decision mistakenly refers to the “Community Services” department rather that to the “Community & Economic Development Department.” HEX-000711 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 process would have allowed the City to request information about the proposed use/business and thereby develop a record to support a permit/license decision that could be more appropriately subject to appellate review. Before that interactive informational gathering process takes place, it is premature to make judgments upon what may or may not be approved. 2. Statements that speculate about how the Renton Municipal Code must bend to the County are dicta because the Decision held, appropriately, that there is no preemption here. A second, but related category of dicta is the Decision’s speculations not based on evidence in the record about how the Renton Municipal Code’s zoning regulations must bend to the County due to the pandemic. See, e.g., Decision at 18:23-19:2 (stating that the City’s zoning regulations must be “interpreted as flexibly as possible” to accommodate the exercise of public health authority). The Decision appropriately held that the City’s zoning laws and regulations are not preempted by the March 31 Local Health Officer Order or by any action taken by the County.5 Thus, statements suggesting that the City’s laws and regulations must give way to make things easy for the County are premature because they speculate about facts not in the record, are not necessary to the Decision’s outcome, and must be regarded as non- controlling dicta. In sum, the City respectfully requests that the Hearing Examiner clarify that all statements in the Decision that exceed the scope of deciding the FOV’s alleged violations constitute non-controlling dicta. 5 The City reincorporates by reference its briefing on both conflict preemption and field preemption from its Response Brief. HEX-000712 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 III. CONCLUSION The City respectfully requests that the Hearing Examiner issue a clarification that: 1) The Decision constitutes a “final determination” regarding the FOV, rather than a “decision on appeal.” 2) There is no evidence in the record of any actions after April 9, 2020 by King County or DESC (or RHI) to relocate the deintensification shelter away from the Red Lion property. 3) Statements in the Decision that exceed the scope of the two violations stated in the FOV are non-controlling obiter dicta. Submitted this 14th day of September, 2020. By: /s/ Shane Moloney Shane Moloney City Attorney City of Renton Attachment: Declaration of Service HEX-000713 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 DECLARATION OF SERVICE I declare under penalty of perjury under the laws of the State of Washington that on September 14, 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-000714 CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST 31, 2020 FINAL DECISION – 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 DESC: Elaine L. Spencer Northwest Resource Law PLLC espencer@nwresourcelaw.com Lisa Chaiet Rahman Northwest Resource Law PLLC lrahman@nwresourcelaw.com X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service DATED this 14th day of September, 2020, at Maple Valley, Washington. s/ Stephanie Rary Stephanie Rary, Paralegal HEX-000715