HomeMy WebLinkAboutAppeal Letter Outlot 2
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com
Maren L. Calvert
Admitted in Washington, Oregon,
California and Hawaii
D: 360-597-0804
mcalvert@schwabe.com
April 21, 2023
VIA E-MAIL (CITYCLERK@RENTONWA.GOV)
City of Renton
RE: The Home Depot - Deferral Decision Outlot 2 (C22004541 / DEF23001824 –
Notice of Appeal
Our File No.: 103058-270011
Dear City Clerk:
Please accept this Notice of Appeal of the above-referenced decision entered by Brianne
Bannwarth, Development Engineering Director, on April 7, 2023 (the “Decision”), submitted on
behalf of the Applicant, The Home Depot. A copy of the Decision is enclosed for reference. The
Decision should be reversed because it reflects the City’s gross abuse of power, collateral attack
on the Hearing Examiner’s Final Decision, PR 22-000065, dated August 9, 2022 (“Examiner’s
Decision”), and imposes improvements that are not required by law, are arbitrary and capricious,
and are infeasible. Finally, the Decision should be reversed as a matter of equity.
Abuse of Power
Just days before the Decision, the City notified The Home Depot that the City would not issue a
certificate of occupancy for the site unless The Home Depot installed more than $220,000 in
frontage improvements along Talbot Road. See enclosed notice email. The Home Depot objected,
stating that it was not responsible for Talbot Road frontage improvements. See id. The City
responded that The Home Depot’s only option was to seek a deferral of the frontage improvement
requirement. See id. Maintaining its objection, The Home Depot sought and the City granted the
above-referenced deferral Decision, requiring The Home Depot to post a $344,526.75 performance
bond, or other security device, payable to the City. Decision at p. 1. In doing so, the Decision
expressly states: “[t]he security device must be in place with the City prior to issuance of
temporary certificate of occupancy.”
Under protest and while expressly preserving its appeal rights, The Home Depot established a
surety under protest with First American Title Company on April 21, 2023. The Home Depot’s
establishment of the surety shall not be interpreted as acquiescence or agreement. The Home
Depot established the surety under protest, to ensure the City did not have grounds upon which to
April 21, 2023
City of Renton
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 2
deny The Home Depot’s certificate of occupancy. A delay or denial of the certificate of occupancy
would cost The Home Depot millions of dollars in lost revenue and construction delays.
To perfect the surety, The Home Depot attempted to assign the surety to the City, but the City
would not accept an assignment that preserved The Home Depot’s appeal rights and required The
Home Depot to sign an agreement contractually obligating The Home Depot to construct the
disputed improvements. See Brianne Bannwarth April 21 Email. As of the time of this filing, The
Home Depot proposed a second round of modified language, expressly stating its objection and
preservation of appeal rights.
If the City refuses to issue The Home Depot’s rightfully-earned certificate of occupancy unless
The Home Depot waives its due process rights, that decision will constitute a gross abuse of power.
Collateral Attack
On August 9, 2022, the City of Renton Hearing Examiner approved The Home Depot’s site plan
noting: “The proposal is served by adequate and appropriate transportation infrastructure.”
Examiner’s Decision, at page 5, lines 3-4 (5:3-4), Finding of Fact 4.F. A copy of the Examiner’s
Decision is enclosed for reference.
The SEPA review did not impose any off-site traffic mitigation or impose any fees.
SEPA mitigation was limited to requiring frontage improvements along Grady
Way.
King County Metro has a proposed project for their I-Line along the project's Talbot
Rd S frontage. The frontage improvements associated with the I-Line proposal
have been incorporated into the site plan application proposal.
Id. at 5:8-12 (emphasis added). In other words, The Home Depot was only responsible for
“frontage improvements along Grady Way.” King County Metro was responsible for Talbot Road
South frontage improvements. Id. See also Ex. 02_P_Conceptual Site Plan (indicating “FUTURE
ROW IMPROVEMENTS” along frontage near Outlot 2); Ex. 20_Conceptual Landscape Plan
(indicating Metro was to perform Talbot Road frontage improvements). Copies of Exhibits 02_P
and 20 are enclosed for reference.
Renton Municipal Code (RMC) 4-8-100.H.5 provides: “decisions…of the Hearing Examiner are
final unless appealed or a reconsideration is requested and granted.” The City and The Home
Depot sought (and received) reconsideration of portions of the Examiner’s Decision, unrelated to
the issues recited above.
Nevertheless, despite the Examiner’s clear finding, the City notified The Home Depot on April 3,
2023, that the City would not issue a certificate of occupancy for the site unless The Home Depot
installed more than $220,000 in frontage improvements along Talbot Road. See enclosed April 3
notice email. The Home Depot objected, stating that it was not responsible for Talbot Road
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frontage improvements. See id. The City responded that The Home Depot’s only option was to
seek a deferral of the frontage improvement requirement. See id. Maintaining its objection, The
Home Depot complied and the City granted deferral request, requiring The Home Depot to post a
$344,526.75 performance bond, or other security device, payable to the City. Decision at p. 1. In
doing so, the City expressly stated: “[t]he security device must be in place with the City prior to
issuance of temporary certificate of occupancy.”
The City’s Talbot Road frontage improvement demand – which disregards and contradicts express
findings of the Examiner’s Decision – is a blatant violation of the doctrine prohibiting collateral
attack on a final land use decision. “[A]n agency cannot even revoke its own final land use decision
unless it has appealed in the LUPA allotted time frame.” Twin Bridge Marine Park, LLC v. Dep't
of Ecology, 162 Wn.2d 825, 844-845, 175 P.3d 1050 (2008) (citation omitted). “This holding
emphasizes the value of finalizing land use decisions.” Id. (“Samuel's Furniture offers protection
to private property owners and finality to the decisions of local government”). See also Chelan
County v. Nykreim, 146 Wn.2d 904, 939, 52 P.3d 1 (2002) (prohibiting county from reversing,
belatedly appealing, or denying permits related to boundary line adjustment erroneously approved
by its own planning director).
Indeed, the Hearing Examiner in this case expressly reminded City staff that its authority after the
Examiner’s Decision was limited:
site plan review is elevated from staff review to hearing examiner review under
limited express conditions as outlined in RMC 4-9-200D2. The conditions that
trigger examiner review under RMC 4-9-200D2 are construed as also triggering
examiner decision making authority over modification requests made under the site
plan criteria as well. This interpretation helps avoid circumstances where staff level
decisions are made that may result in inconsistencies or incompatibilities with
subsequent, unanticipated design changes resulting from examiner level site plan
review.
Decision Upon Reconsideration, PR22-000065, Sept. 1, 2022, at p. 4 n.1. The Decision requiring
The Home Depot to construct frontage improvements along Outlot 2 should be reversed.
Improvements are not Required
Even if the Hearing Examiner had not found Metro would be installing the Outlot 2 frontage
improvements (which he did), RMC 4-6-060 does not require any street improvements for Outlot
2. RMC 4-6-060.C expressly says “[t]he standards in this section will be used…[w]henever a
building permit is applied for or application made for a short plat or a full subdivision…” The
Home Depot has not applied for a building permit or to short plat or subdivide Outlot 2.
Furthermore, even if street improvements might otherwise be required, RMC 4-06-060.F.1.a.
expressly exempts projects with less than 5,000 square feet of commercial development from street
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1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 4
light requirements. Outlot 2 is already developed. There is zero (0) square footage of commercial
development on Outlot 2. See enclosed Exhibits 02_P and 20.
Because RMC 4-06-060 does not require street improvements related to Outlot 2, the Decision
should be reversed and the Outlot 2 surety funds returned to The Home Depot.
Bad Faith, Intentional Interference
The Home Depot and City staff have been communicating weekly – if not daily – since the
Examiner’s Decision eight months ago. There is no reason the City could not have raised the
frontage improvement requirements earlier in the permitting process, so that The Home Depot
would have had a reasonable time to respond. The City’s failure to do so, and decision to spring
its “new” Talbot Road frontage requirements just days before The Home Depot was scheduled to
receive its certificate of occupancy, placed The Home Depot in an unreasonable bind. The Home
Depot has no good options. It can either post an unwarranted and wholly unjustified six-figure
“security device” (which it has done under protest) – or face yet another delay in its opening date
at the cost of millions of dollars in lost revenue, employee and construction financing costs. The
City’s unjustifiable “reversal” of its Examiner’s Decision and conveniently delayed announcement
of that reversal is arbitrary and capricious, clearly erroneous, smacks of bad faith, and can only be
explained by negligence (at best) or an intentional effort to extort money from The Home Depot
(at worst) in exchange for the certificate of occupancy The Home Depot had otherwise faithfully
earned.
Arbitrary and Capricious and Infeasible
Even if The Home Depot were responsible for installing street frontage improvements along Talbot
Road (which it is not, for the reasons stated above), City staff’s requirement that those
improvements be performed before Metro completes its work in the same area is arbitrary and
capricious, wasteful, will unnecessarily cost taxpayers money.
The Hearing Examiner and City acknowledge Metro plans to perform additional improvements in
precisely the same area as City staff are now requiring the Home Depot to install street lights and
trees. If The Home Depot complies with City staff’s requirement, Metro will have to spend
taxpayer dollars to remove the streetlights and trees, in order to perform the work it intends, and
then spend additional tax payer dollars to reinstall those (or different) street lights and trees when
the work is done. This requirement is wasteful, unnecessary, and in light of the mutual agreement
that Metro’s project is ultimately responsible, the requirement for duplicative work is arbitrary and
capricious.
Equitable Estoppel
Finally, the City should be equitably estopped from imposing Talbot Road frontage improvement
requirements at this late date.
April 21, 2023
City of Renton
1211 SW 5th Ave., Suite 1900 | Portland, OR 97204 | M 503-222-9981 | F 503-796-2900 | schwabe.com Page 5
“It is self-evidently unfair to permit” an agency “to adopt and publicly distribute an interpretive
policy memorandum” or land use decision “and later deny the [decision’s] plain reading after
contractors have relied upon it to their detriment.” Silverstreak, Inc. v. Dep't of Labor & Indus.,
159 Wn.2d 868, 889-90, 154 P.3d 891 (2007). Companies “must be able to rely on the plain
meaning of regulations and Department interpretations, without fear that a state agency will later
penalize them by adopting a different interpretation after they have” made business decisions in
reliance on that decision. Id. See also State ex rel. Shannon v. Sponburgh, 66 Wn.2d 135, 143,
401 P.2d 635 (1965) (equitably estopping liquor license reversal after business had incurred
significant expense “in good faith in reliance upon [agency’s] solemn written commitment”).
The City sought reconsideration of certain elements in the Decision, and did not seek
reconsideration of the frontage improvement portions of the Decisions. See Decision Upon
Reconsideration, attached. It should not be afforded a third bite at the apple now.
For all of these reasons and such other and further evidence and argument as may be provided at
a hearing on this appeal, Home Depot respectfully requests the requirements for the street frontage
improvements near Outlet 2, as expressed in the Decision be reversed and the surety released.
Best regards,
Schwabe, Williamson & Wyatt, P.C.
Maren L. Calvert
MLCA
Enclosures: 1. Deferral Decision Outlot 2
2. Hearing Examiner’s Final Decision
3. April 3 & 7, 2023 Email exchange
4. Brianne Bannwarth April 21 Email.
5. Hearing Exhibit 02_P
6. Hearing Exhibit 20
7. Examiner’s Decision Upon Reconsideration
PDX\103058\270011\MLCA\36458593.2