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HomeMy WebLinkAbout10-25-2021 - HEX Ruling on Dismissal Motion RULING ON DISMISSAL MOTION PAGE 1 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 26 27 28 29 30 THE HEARING EXAMINER OF THE CITY OF RENTON IN RE: Varma Short Plat Administrative Appeal File No. LUA-21-000139 Ruling on City Motion to Dismiss Summary The appeal issues raised by Ms. Donnelly are limited to the following: 1. Impacts of tree removal to adjoining Frandson property. 2. Mitigation, if any, of stormwater flows originating from Craig property. 3. Safety of walking routes to school bus stops. 4. Presence of Golden Eagle at project site. All other appeal issues are dismissed. All references to compliance issues of other development projects are found to be irrelevant and stricken from the record. Evidence Relied Upon 1. Donnelly September 1, 2021 Appeal. 2. Donnelly September 3, 2021 Appeal. 3. Donnelly October 6, 2021 Exhibits. RULING ON DISMISSAL MOTION PAGE 2 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 26 27 28 29 30 4. October 13, 2021 Email from Ms. Donnelly 5. October 18, 2021 Email from Ms. Donnelly 6. October 14, 2021 letter from Ms. Donnelly with attachments. 7. October 19, 2021 City of Renton Response and Motion to Dismiss 8. October 19, 2021 Applicant response to appeal. 9. October 22, 2021 email from Ms. Donnelly 10. August 26,2021 Varma Short Plat decision along with its 14 exhibits 11. October 25, 2021 Applicant Reply on City Motion to Dismiss Findings of Fact 1. Appeal. Ms. Donnelly filed the subject appeal on September 1, 2021. She provided more specific grounds for appeal with an appeal addendum dated September 3, 2021. Her appeal challenges the validity of an August 26, 2021 administrative decision approving a 9-lot short plat located at 13016 156th Ave SE near the intersection of 156th Ave SE and SE 132nd St. 2. September 1, 2021 Appeal. Ms. Donnelly’s September 1, 2021 appeal did not identify any grounds for appeal. That document just identifies additional information Ms. Donnelly would like to review. 3. September 3, 2021 Appeal Revision. Ms. Donnelly’s September 3, 2021 appeal addendum identifies four grounds for appeal as follows: a. Ms. Donnelly identifies that the Varma decision incorrectly identifies that impact fees are due to the Renton School District. b. Ms. Donnelly contests the “tree retention section” of the Varma decision. Ms. Donnelly limits her comments on tree retention to stating that “in reality” clear cutting takes place. From Ms. Donnelly’s exhibits, it is manifest that Ms. Donnelly’s reference to clearing is clearing done on other projects. Ms. Donnelly does not allege or identify that the Varma subdivision fails to comply with the City’s tree retention standards. c. Ms. Donnelly asserts that City staff did not follow “state law” for surface water. Ms. Donnelly cites to an appellate court decision that holds property owners liable under specified circumstances for diverting stormwater onto adjoining properties. RULING ON DISMISSAL MOTION PAGE 3 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 26 27 28 29 30 d. Ms. Donnelly broadly stated that she wants to disclose how Renton officials protect the environment while making sure Mr. Varma follows city ordinances and laws regarding construction. Conclusions of Law 1. Review Standard for Motion to Dismiss. In assessing the City’s motion to dismiss, the Washington State Superior Court Civil Rules of Procedure will be used as guidance in setting the standards for review. Such use is logical since judicial review of this decision will be by a superior court using those same standards. The City’s request for dismissal is essentially a motion for summary judgment, which is governed by Civil Rule (CR) 56. CR 56 provides that summary judgment shall be granted if there is no genuine issue as to any material question of fact and the moving party is entitled to judgment as a matter of law. 2. Noncompliance of Other Projects Irrelevant. Alleged noncompliance of other development project with City development standards is irrelevant to whether the Varma preliminary plat is consistent with the City’s development standards. The central review criteria for approval of the Varma plat requires that the proposal make “appropriate provision” for public health, safety and welfare as well as a long list of infrastructure, such as roads, water and sewer. See RCW 58.17.110(1) and RMC 4- 7-070(H)(3). To this end, the City Council and City staff have adopted detailed and numerous development standards that it has determined to be sufficient to provide for appropriate protection of public health, safety and welfare and the infrastructure needs of the City. See, e.g. Chapter 4-5 and 4-5 RMC. The City was required to approve the Varma preliminary plat application if the Applicant could establish that its preliminary plat design met all applicable development criteria identified above. The City’s decision in this regard can only be overturned on appeal if the Varma application in fact did not comply will all applicable development standards. A sustainable appeal should clearly identify and establish what provisions of the Renton Municipal Code are not met by the proposed preliminary plat. Ms. Donnelly’s numerous pages of appeal argument do not identify any Renton Municipal Code section that is violated by the proposal. Instead, most of her arguments are based upon alleged compliance issues with other development projects. The alleged failure of other developers to comply with the City’s development standards is not relevant to whether the Varma application complies with those standards. RULING ON DISMISSAL MOTION PAGE 4 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 26 27 28 29 30 Ms. Donnelly does not appear to be bringing her concerns to the proper decision making forum. If Ms. Donnelly believes that the City’s development standards do not adequately meet the infrastructure needs of the City and/or fail to protect against adverse impacts, that is an issue to be taken up with the City Council for adoption o f additional development standards. If Mr. Donnelly believes that City staff are not adequately enforcing the City’s standards, that is an issue to be brought to the City departments responsible for their enforcement. The Office of the Hearing Examiner has no authority to change City development standards or to manage and supervise City staff. Given the considerations above, all of Ms. Donnelly’s arguments and assertions regarding development standard noncompliance of other projects is irrelevant and will not be considered in this appeal. These issues include but are not limited to the failure of other projects to comply with stormwater control standards, tree retention standards, stormwater control standards, erosion control standards and construction hours. All comments related to these issues in Ms. Donnelly’s exhibits are stricken from the record. 3. Erroneous Identification of School District Claim Dismissed. In her September 3, 2021 appeal Ms. Donnelly correctly asserts that the Varma decision incorrectly identifies that the Applicant will be required to pay school impact fees to the Renton School District. Ms. Donnelly raises no material question of fact that this error has any bearing on whether impacts to schools are adequately mitigated. The appeal issue is dismissed. The pertinent review criteria for school impacts are RCW 58.17.110(1) and RMC 4-7- 070(H)(3). These standards collectively require that the proposed short subdivision make appropriate provisions for schools and school grounds as well as sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school. The error cited by Ms. Donnelly has no bearing on the applicable review standards identified above. Ms. Donnelly doesn’t identify any reason why the incorrect reference leads to inadequate school mitigation in her appeal statements or accompanying exhibits. The City has acknowledged that the reference was an incorrect scrivener’s error. The fact that the error was a scrivener’s error is manifest from the Varma decision itself. As confirmed in the Issaquah School District Capital Facilities Plan, adopted by reference into the City’s capital facilities plan, all the schools assessed in the Varma decision school impact analysis are Issaquah schools. Further, the incorrect reference to the Renton School District is for school impact fees and the amount identified for that fee is $18,213. As confirmed in the City’s adopted fee schedule, the RULING ON DISMISSAL MOTION PAGE 5 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 26 27 28 29 30 $18,213 fee amount is for Issaquah School District impact fees, not Renton School District impact fees. From the facts above it is clear that the City mistakenly switched the Issaquah district name with the Renton district name and did not otherwise incorrectly assess impacts to the wrong school district. Ms. Donnelly has not identified any other reason why school impacts have not been sufficiently mitigated. Given that use of the incorrect name has no bearing on the adequacy of mitigation, the school district issue is dismissed from Ms. Donnelly’s appeal. 4. Tree Retention. Ms. Donnelly’s tree retention issue is dismissed except for the specific issue of whether tree removal could eliminate a necessary windbreak to trees located on the Frandson property. Ms. Donnelly identifies in her appeal that Renton has adopted tree retention policies and that “in reality” clear cutting takes place. She also notes that if a preliminary plat requires that trees be saved that they must be saved. Ms. Donnelly’s appeal statement makes no specific assertion that the proposed subdivision fails to retain trees as required by City regulations. In her response to the City’s motion to dismiss, Ms. Donnelly is basing her claim of noncompliance with tree retention standards exclusively upon noncompliance by other projects. Ms. Donnelly has not identified how alleged noncompliance practices of other developers is relevant to the Varma proposal and no such connection is evident from the record. One issue that merits consideration is how the City will handle potential impacts to the Frandson property by the proposed tree removal. Ms. Donnelly’s October 6, 2021 exhibit asserts that the Frandsen had been advised by an arborist that tree removal on the Varma site could remove a necessary windbreak to the Frandsen property. Since tree retention compliance has been deferred to final technical review by the Varma decision, it’s unclear if this issue will be handled in a code compliant manner by the City. Removal of windbreaks that could damage adjoining properties could potentially violate the public health, safety and welfare requirements of RCW 58.17.110(1) and RMC 4-7-070(H)(3). Consequently, this issue may be pursued by Ms. Donnelly at the appeal hearing. 5. Stormwater. Ms. Donnelly’s stormwater issue is dismissed except for potential stormwater impacts caused by runoff from the Craig property. Ms. Donnelly’s stormwater issue must be dismissed because she raises no material question of fact regarding compliance with the City’s stormwater regulations. Ms. Donnelly’s September 3, 2021 appeal does not allege any noncompliance with the RULING ON DISMISSAL MOTION PAGE 6 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 26 27 28 29 30 City’s stormwater regulations. Instead, she cites to a State Supreme Court case that makes landowners liable in some circumstances for diverting stormwater off their property. As detailed in page 9 of the Applicant’s technical information report, Core Requirement No. 9 of the City’s stormwater regulations require stormwater facilities to prevent off-site diversions of stormwater. See Varma Admin. Decision, Ex. 8. Core Requirement No. 9 requires that stormwater flows match those of predevelopment conditions. The Applicant’s stormwater system is designed to meet Core Requirement No. 9. The Technical Information Report provides detailed calculations and engineering design to demonstrate compliance with Core Requirement No. 9. Ms. Donnelly doesn’t identify anywhere in her response to the City’s motion to dismiss or her other exhibits why or how the Applicant’s stormwater facilities fall short of meeting requirements of Core Requirement No. 9. Since Ms. Donnelly has raised no material question of fact as to the Applicant’s compliance with the City’s stormwater regulations, the stormwater issue of her appeal must be dismissed. Ms. Donnelly also takes issue with a letter written by a Mr. Craig, who notified the City that he has a retention pond that backs up and diverts water onto the Varma project site. Ms. Donnelly’s comments appear to be primarily focused on the fact that Mr. Craig lives in King County. She apparently takes the position that if a source of water flowing onto the Varma site is from outside the City of Renton that the City has no authority to address it. That is not entirely correct. The City has full authority to regulate the waters flowing across the Varma project site regardless of origin. However, it is unclear that as a pre-existing deficiency caused by another project site that the City believes it has the authority to require the Applicant to remedy it. In particular, in its October 9, 2021 comments the Applicant indicated that the flows from the Craig property may be contaminated by the Craig drainfield. It’s unclear whether the City would make the Applicant responsible for remedying water flow and water quality problems caused by the Craig property or whether that would be treated as an existing deficiency for which the Applicant is not responsible. If the City’ position on this issue is incorrect, that could result in an unmitigated stormwater impacts contrary to code. For these reasons, Ms. Donnelly raises a material question of fact as to whether stormwater impacts will be addressed in conformance with City stormwater standards and that is an appropriate issue for appeal review. 6. Ms. Donnelly’s last appeal grounds listed in her September 3, 2021 appeal broadly states that “I want to let you know about how Renton City officials protect the environment while making sure Mr. Varma follows city ordinances and laws regarding construction.” Without more, such an appeal statement would be automatically dismissed as providing no notice to the other parties as to what issues Ms. Donnelly is contesting. However, RMC 4-8-110(C)(3) provides that if an appeal is unclear, the Examiner may issue an order giving the Appellant ten days to clarify the appeal. Since RULING ON DISMISSAL MOTION PAGE 7 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 26 27 28 29 30 this opportunity was not given to the Appellant, the grounds for appeal must be taken “as is.” Although the last appeal grounds cannot be dismissed as unclear, that does not excuse Ms. Donnelly from having to establish material questions of fact in response to the City’s motion to dismiss. In her response, Ms. Donnelly must still identify material facts linked to the last grounds for appeal that establish that the Varma decision fails to comply with City development standards. Since Ms. Donnelly is a lay person and local land use proceedings should be accessible to the public, Ms. Donnelly’s exhibits were consulted in addition to her response to the City ’s motion to dismiss to ascertain the issues that qualify as related to protecting the environment under Ms. Donnelly’s last grounds for appeal. The “environment,” as referenced in Ms. Donnelly’s appeal, is construed as comprising the elements of the environment in the State Environmental Policy Act definition of the term, WAC 197-11-444. In broad terms, WAC 197-11-444 identifies that the environment is composed of both environmental resources as well as infrastructure needs. In short, the last appeal grounds identified in Ms. Donnelly’s September 3, 2021 appeal covers all of the issues raised in Ms. Donnelly’s response to the City’s motion to dismiss as well as her other exhibits. Ms, Donnelly’s environmental issues are each individually addressed below. A. Road Safety. Ms. Donnelly’s road safety issue is limited to safe walking conditions to and from school bus stops. Ms. Donnelly asserts that the plat should be denied because SE 128th and SE 156h street are unsafe. In her October 6, 2021 exhibits, Ms. Donnelly includes photographs of the roads upon which school children will be expected to walk to reach their school bus. The depicted shoulders are narrow or nonexistent. Under the RCW 58.17.110(1) and RMC 4-7-070(H)(3) requirements for appropriate roads and safe walking conditions to and from school Ms. Donnelly has established a material question of fact on whether the walking routes to school bus stops are safe for school children. That issue can be addressed at the hearing. Ms. Donnelly also refers to instances where her mother was found to be unsafe walking on surrounding streets. Ms. Donnelly did not identify why the roads were unsafe for her mother. Those facts by themselves do not raise any material question of fact as to whether the proposal meets the City’s road standards. Beyond the statements about her mother and walking conditions for school children, Ms. Donnelly has not presented any other facts that suggest that the proposed subdivision doesn’t comply with the City’s road standards. For these RULING ON DISMISSAL MOTION PAGE 8 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 26 27 28 29 30 reasons, Ms. Donnelly’s appeal on road issues is limited to walking conditions for children to their school bus stops. B. Golden Eagle. Ms. Donnelly raises a material question of fact on whether the project site serves as protected habitat for golden eagles and that issue can be presented at the hearing. RMC 4-3-050(F)(6)(b) designates as protected critical habitats those areas designated in the Priority Habitat and Species Program of the Washington State Department of Fish and Wildlife (WDFW). The WDFW Priority Habitats and Species List identifies all the counties in Washington State as potential location of Golden Eagle Habitat. Ms. Donnelly asserts in her appeal documents that on several occasions she observed a Golden Eagle at the project site when her mother resided there in 2004-2006. Although Ms. Donnelly’s observations are certainly dated, there is no evidence in the record that proves the negative, i.e. that there are no Golden Eagles occupying the site currently. In its request for dismissal of this issue, the City didn’t identify how the City concluded that there are no Golden Eagles at the project site. Given that the only evidence in the record on Golden Eagles suggests a reasonable possibility that Golden Eagles may still be present, Ms. Donnelly has raised the requisite material question of fact threshold to merit consideration of this issue during the appeal. 7. Change in Planners. Ms. Donnelly argues that a change in planners assigned to the project has deprived the public of proper notice and information on the project. The City has no responsibility to keep any specific planner assigned to a project. Further, Ms. Donnelly does not have standing to argue the notice rights of others. That issue is dismissed. ORDERED this 25th day of October 2021. ___________________________ City of Renton Hearing Examiner