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HomeMy WebLinkAboutCity's Response to Appellant's Appeal_Outlot 1 (07.06.2023) MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 BEFORE THE CITY OF RENTON HEARING EXAMINER IN THE CITY OF RENTON, COUNTY OF KING, STATE OF WASHINGTON RE: The Home Depot, Appellant Deferral of Street Improvements: Outlot 1 (S. Grady Way and Talbot Rd. S.) DEF23001823 (LUA21-000542; C22003168) NO. DEF 23001823 MOTION TO DISMISS And RESPONSE TO APPEAL COMES NOW, the City of Renton, by and through its attorney, M. Patrice Kent, on behalf of its Community & Economic Development Department (“CED”) including its Development Engineering Director Brianne Bannwarth (“Director”) (together “City”), and hereby responds to Appellant’s appeal. Exhibit A, as referenced and incorporated herein, is a Narrative and Chronology prepared by the Director, and includes links to referenced documents. I. DEFERRAL DECISION: On April 7, 2023, in compliance with RMC4-6-060R (referencing the procedures in RMC 4-9-060) the Director issued a decision permitting Deferral of public improvements along S. Grady Way and Talbot Road S. until the outlot has been permitted, sold, or it has been nor more than three (3) years from the date of the approval. The Deferral was issued in response MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 to an application from The Home Depot, by and through its consultant Daniel Zoldak of Lars Andersen & Associates (together “The Home Depot” or “HD”). The Home Depot filed a Notice of Appeal of the Deferral on April 21, 2023 and seeks reversal of the Deferral (see Notice of Appeal, para1). It is the City’s view that reversal of the Deferral will result in The Home Depot being required to immediately construct the street improvements identified in its building permits. II. MOTION TO DISMISS: The appeal is characterized as resulting from the administrative decision to grant additional time (with a surety) to complete the required street frontage improvements. However, the content of the appeal show it is actually an appeal of the street frontage improvement requirement itself, which is expressly stated in its final statement that “Home Depot respectfully requests the requirements for the street frontage improvements near Outlet [sic] 1, as expressed in the Decision be reversed and the surety released” (Notice of Appeal, p.5). Those requirements were properly and timely imposed according to RMC 4-6 during the building permit process after the Final Decision of the Hearing Examiner (RMC 4-6- 060.C) and noted on drawings and approved permits that were provided to The Home Depot via email on October 17, 2022. Under the Renton Municipal Code permits are subject to appeal within 14 calendar days of issuance (RMC 4-8-110.C.2). The Home Depot did not appeal permit requirements. MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 Since The Home Depot did not timely appeal the permit requirements for street improvements, the City moves the Hearing Examiner dismiss this appeal as a collateral attack on the improvement requirements themselves. III. PROCEDURAL HISTORY A. Procedural History – Through PR22-000065 on LUA21-000542 The City issued a notice of complete application site plan review, environmental (SEPA) review, and modification for The Home Depot on December 22, 2021 (LUA21-000542). On May 18, 2022, the City and Dan Zoldak, on behalf of The Home Depot, entered into an agreement which allowed the project to be expedited (Exhibit B “Acknowledgment for Building and Construction Permit Review”). On July 26, 2022, the Hearing Examiner (“HEX”) for the City of Renton held a virtual public hearing (“Hearing”) related to the proposed Site Plan and Street Modification for redevelopment of the former Sam’s Club site at 901 S Grady Way by The Home Depot (LUA21- 000542). There were 29 exhibits entered into the record, including the City’s Staff Report detailing SEPA review, frontage improvements required under the Renton Municipal Code, and conditions for anticipated lot line adjustments (Hearing, Exhibit 16, see e.g. pp 7, 9, and 22) and The Home Depot’s objection to the undergrounding requirement (Hearing, Exhibit 29). The sole street code Modification proposed by HD at the Hearing was to maintain the existing pavement width as well as a reduced right-of-way along the S. Grady Way and Talbot Road S. City staff supported the proposed modification and it was approved. No modification MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 to code requirements for other street frontage improvements along S. Grady Way orTalbot Road S. had been filed at the time of the site plan hearing. During the Hearing, City staff clearly and expressly noted the project would require street lighting improvements along the public street frontages of Talbot Road S. (see, e.g. Hearing, Exhibit 11, pp.7-9 and Exhibit 24, p.9). The City recommended approval of the project subject to 34 conditions. The street frontage improvements (RMC 4-6-060) subject of the Deferral under appeal were not among the recommended conditions, and those RMC requirements were therefore neither waived nor modified. On the record, The Home Depot objected to the City’s intent to require them to underground the electrical utilities pursuant to RMC 4-6-090 (Hearing - Exhibit 29). HD asserted that at least two exemptions apply (RMC 4-6-090.D.1.c and g.), and should also be subject to technologically difficulty exemption (RMC 4-6-090.D.1.i). Finally, HD argued that the requirement must be “roughly proportional to the impact of the proposed development … [based on] an individualized determination … related both in nature and extent to the impact of the proposed development” (citing Dolan v. City of Tigard, 512 US 374 (1991)). On August 9, 2022, the HEX issued his Final Decision, PR22-000065 on LUA21-000542 (“PR22-000065”), with conditions. The Final Decision approved the only street modification requested. With respect to the undergrounding requirement. Condition 34 states that undergrounding of utility lines had not been addressed and that “the Applicant shall put its position in the form of a modification request and the resulting staff decision shall be subject MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 to hearing examiner appeal.” (emphasis added). The Final Decision is silent as to other street frontage improvements. HD asserts Finding of Fact 4.F (Adequacy of Infrastructure/Public Services – Transportation) related to the SEPA mitigation acts as a condition of the project that precludes RMC 4-6-060 street frontage requirement on Talbot Road S. The City asserts that the Finding of Fact mis- states the City’s Environmental Review Committee’s finding, and recognizes it has waived its right to seek reconsideration on the question. HD relies on language in that section that: “[t]he frontage improvements associated with the I-line proposal have been incorporated into the site plan application proposal” (PR22- 000065, Finding of Fact 4.F, p.5 lines 11-12) as affirmatively obliging King County Metro to install Talbot Road S. frontage improvements. King County Metro was not a participant in the Hearing nor was their site plan under review, nor had staff made any such recommendations. B. Procedural History – Post PR22-000065 Both the City and The Home Depot sought reconsideration of PR22-000065 on matters other than those subject to the Deferral. Following procedures at RMC 4-6-060.C, street frontage improvements are applied during the building permit process. On October 17, 2022, the City provided The Home Depot with approved Construction Plans Permit (C22003168), showing the requirements for street frontage improvements including both street trees and lighting (Sheet L1.7 “required … unless waived”). MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 The City did not receive an appeal of its permit decisions on the construction permit, nor application for waiver of the street improvement requirements. The Home Depot filed a Notice of Appeal of the Deferral on April 21, 2023 and seeks reversal of the Deferral (see Notice of Appeal, para1). It is the City’s view that reversal of the Deferral will result in The Home Depot being required to immediately construct the street improvements identified in its building permits. IV. APPEAL A. Assertions 1. Undergrounding Requirements are not required/proportionate The Home Depot repeats its objections to the undergrounding requirements that it raised in the initial Hearing on July 26, 2023. The Home Depot articulated that the City had negotiated, and the Home Depot had, only during the Deferral issuance “first, specific, written directive to underground the power lines.” 2. Lack of Notice of Requirements The Home Depot has asserted a number of nefarious claims against the City, each of which is based on their assertion that the City’ did not provide notice of the street frontage requirements in a timely manner for Talbot Road S. As a result of this alleged lack of notice, the City’s reasonable adherence to its development code are “arbitrary and capricious, and infeasible” (Notice of Appeal, p.1) and demonstrate the City has shown “Bad Faith and Intentional Interference” (Notice of Appeal, p.4) with The Home Depot’s business interests. The City notes for the record that the HD store held its grand opening on May 4, 2023. MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 The appeal on the Deferral then goes on to debate the City’s requirement for the undergrounding of utility lines. As noted above, PR22-000065 provided the sole means, a Modification, by which The Home Depot could appeal application of the undergrounding requirement. 3. Collateral Attack on PR22-000065 The Home Depot asserts that the Finding of Fact related to the City’s Environmental Review Committee’ SEPA finding was a de facto waiver of the City’s street frontage improvement requirements. 4. Equitable Estoppel The Home Depot asserts that “the City should be equitably estopped form imposing Talbot Road frontage improvements at this late date.” B. Response to Assertions 1. Undergrounding: PR 22-000065, Condition 34 states that undergrounding of utility lines had not been addressed and that “the Applicant shall put its position in the form of a modification request and the resulting staff decision shall be subject to hearing examiner appeal.” (emphasis added). The Home Depot has not asserted they have submitted, and the City has not received, an application for a modification pursuant to RMC 4-9-250.D. 2. Claims related to Lack of Notice: The City unequivocally denies Home Depot’s allegations of surprise, abuse of power, bad faith in its dealings, and arbitrary and capricious acts. Home Depot has consistently had MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 notice of the street frontage improvement and undergrounding requirements. The City’s imposition of the requirements are consistent with its development regulations, and within its discretion to impose. In fact, the City demonstrated its reasonableness in supporting HD’s lone application to a modification to the street frontage requirements and recommended the PRR22-000065 condition related to a modification for the HD to have a path forward with respect to the utility undergrounding requirement. HD claims it was surprised by the requirements “[j]ust days before” the Deferral was issued. The procedural background above describes at least 2 separate instances where the City clearly communicated the requirements in the months before HD sought deferral of the requirements. The City has consistently acted according to its development regulations and in compliance with all applicable terms of PR22-000065. The City has demonstrated its multiple timely notifications to the Home Depot with respect to its street frontage and other requirements, and has gone out of its way to allow the project to be expedited (see e.g., “Acknowledgment for Building and Construction Permit Review”). 3. Collateral Attack The City disagrees with HD’s assertion that the SEPA finding create a waiver of the City’s street standards. SEPA findings are supplementary to existing authority and are implemented to mitigate adverse environmental impact (WAC 197-11-030(1) and(2)(g)). Put another way, the SEPA process is an important means by which environmental assets of the City are protected. MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 However, the process does not supersede the City’s street frontage requirements (RMC 4-6- 060) which are intended to protect the physical health and safety of individuals using the roads and commercial areas of Renton. Procedurally, street standards including frontage improvements are applied at the building permit stage of the development process (RMC 4-6-060.C.) The building permit review is conducted after the site plans have been approved, and in compliance with the approved site plan (RMC 4-9-200.I). The street frontage improvement requirements addressed by the Deferral had not been ruled on by the HEX. It is therefore the City’s opinion that there was not a final land use decision with respect to the imposition of street frontage requirements. 4. Equitable Estoppel Equitable estoppel “prevents a party from taking a position inconsistent with a previous one where inequitable consequence would result to a party who has justifiable and in good faith relied.” (Wilson v. Dept of Ret. Sys., 15 Wn App.2d 111, 122, 475 P3d 193 (2020) quoting Silverstreak). There is a 3-step analysis whereby “the doctrine applies if (a) a party makes a statement inconsistent with a claim afterward asserted (2) the other party acts in reasonable reliance on that statement, and (3) repudiation of the statement would injure the relying party.“(Peterson v. Groves, 111WN, App, 306, 44 P,3d 894 (2002)) “Reliance is reasonable only when the party claiming estoppel did not know the facts and had no means to discover them.” (Concerned Land Owners of Union Hill v. King County, 64 Wn App 768, 778, 827 P 2d 1017 (1992), emphasis added). Washington courts do not favor equitable estoppel, and a party MOTION TO DISMISS and RESPONSE TO APPEAL (Outlot 1) – 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 asserting the doctrine must prove each of its elements by clear, cogent, and convincing evidence (Teller v. APM Terminals Pac., Ltd, 134 Wn App 696, 712, 142 P.3d 179 (2006)). The City has shown it has made consistent statements related to utility undergrounding, and that it has consistently attempted to communicate those requirements to the Home Depot. HD had actual knowledge of the facts of the requirements – a simple reading of RMC 4-6-090, and the fact of the objection during the initial Hearing demonstrates that knowledge. The City asserts that the Home Depot has not proven all the elements in support of equitable estoppel by clear, cogent, and convincing evidence. V.CONCLUSION Appellant’s Appeal of Deferral is little more than a delayed attempt to circumvent PR 22-0065, the City’s permit appeal process, and its street frontage improvement requirements. The City respectfully requests the Hearing Examiner dismiss the appeal, or in the alternative find that all claims with respect to the Deferral are denied. The denial of an appeal will also have the effect of leaving the 3-year period to complete the required street improvements in place and continue to allow The Home Depot time to identify alternative means to ensure the improvements are completed. RESPECTFULLY SUBMITTED, this 6th day of July, 2023. CITY OF RENTON: By:___/s/ M. Patrice Kent_________ M. Patrice Kent, WSBA #42460 Attorney for City of Renton EXHIBIT A: Chronology and Linked Files The Home Depot Project Chronology and Linked Files (The Home Depot) City of Renton - Page 1 of 5 Project Document Library 1.Land Use Permit (LUA21 -000542) for Site Plan Review, Environmental (SEPA) Review, and a Street Modifica�on for the Home Depot project a.Land Use File b.ERC Staff Report c.ERC Decision d.Exhibit 16: Staff Report to the Hearing Examiner e.HEX Staff Report - Exhibits f.Hearing Examiner’s Decision g.Hearing Examiner’s Reconsidera�on 2.Land Use Permit Lot Line Adjustment (LUA22-000209) to create two outlots along the S Grady Way and Talbot Road S. a.Land Use File b.Administra�on Decision 3.Civil Construc�on Permit (C22003168) to construct on-site improvements, frontage improvements, and offsite mi�ga�on improvements required by City Code and the land use decisions. a.Permit File b.Approved Civil Construc�on Plans Frontage Improvement Requirements on Talbot and Grady 1.City Reviewed Applicant’s applica�on under LUA21 -000542 for Site Plan Review, Environmental (SEPA) Review, and a Street Modifica�on for the Home Depot Redevelopment Project at 901 S Grady Way. a.In accordance with RMC 4-6-060, the project required frontage improvements including right of way landscaping and street ligh�ng along S Grady Way and Talbot Road S. See the following for suppor�ng references: i.Hearing Examiner’s Decision Exhibit 16 (Staff Report to the Hearing Examiner) on Page 9 under Finding of Fact (FOF) #18 for discussions on required streets trees along S Grady Way and Talbot Road S, ii.Hearing Examiner’s Decision Exhibit 16 (Staff Report to the Hearing Examiner) on Page 44 under Finding of Fact (FOF) #21.k (Transporta�on) for discussion on required frontage improvements on S Grady Way and Talbot Road S, and iii.Hearing Examiner’s Decision Exhibit 14 (Advisory Notes) on Page 7 under the Transporta�on discussion for discussion of right of way improvements, undergrounding, and street ligh�ng requirements along the project street frontage. b.At the �me of the Home Depot ’s applica�on, King County Metro was working with City staff on a proposed King County Metro I-Line Project to add a northbound lane on Talbot Road S. To date, King County Metro has not submited an official civil construc�on permit applica�on for this project and has not paid an applica�on permit fee. The City has been tracking preliminary applica�on efforts made by King County Metro under Civil Construc�on Permit C21001128. Regardless of whether King County Metro has a project that may construct the frontage improvements along the same Talbot Road S frontage Chronology and Linked Files (The Home Depot) City of Renton - Page 2 of 5 improvements as Home Depot, it does not remove the requirement for the Home Depot ’s Redevelopment Project to construct these improvements. City staff has encouraged both Home Depot and King County Metro to work together to come up with a mutually beneficial arrangement to the construc�on of these frontage improvements as both would be required to construct them. c. The Applicant submited an applica�on for a street modifica�on to maintain the exis�ng roadway improvements within both S Grady Way and Talbot Road S (see Exhibit 22 of the Staff Report to the Hearing Examiner). i. Staff supported the request to maintain the exis�ng curb line on S Grady Way, and to reduce the required pavement width along Talbot Road S to accommodate the King County Metro I-Line Project and in turn the corresponding right of way dedica�on all while providing the Code required 8- foot-wide landscaping strip, 8-foot wide sidewalk, and two foot wide clear space between back of side of and right of way. See Hearing Examiner’s Decision Exhibit 16 (Staff Report to the Hearing Examiner) on Page 45 under FOF #22 and Hearing Examiner’s Decision Exhibit 14 (Advisory Notes) on Page 7 under the Transporta�on discussion. ii. Hearing Examiner’s Decision approved the street modifica�on with no addi�onal provisions. 2. The City has not received a street waiver request from the applicant for any of the required frontage improvements along S Grady Way and Talbot Road S reques�ng to not install the frontage improvements required by RMC 4-6-060. In addi�on, City Staff at no �me recommended that these improvements be waived and only supported a modified street sec�on as noted in the Hearing Examiner’s Decision Exhibit 16 (Staff Report to the Hearing Examiner) on Page 45 under FOF #22 and Hearing Examiner’s Decision Exhibit 14 (Advisory Notes) on Page 7 under the Transporta�on discussion. a. The Hearing Examiner’s Decision FOF 4.F on Page 5 states “The SEPA review did not impose any off-site traffic mi�ga�on or impose any fees. SEPA mi�ga�on was limited to requiring frontage improvements along Grady Way.” The first part of this statement is true based on the Final SEPA Determina�on, no addi�onal offsite improvements, or addi�onal fees outside of City Code were imposed. The second por�on of the statement erroneously refers to SEPA mi�ga�on limited to Grady Way where no such limita�on was made and only stated the facts of what is required and the fact that King County Metro has proposed a project to construct their I-Line. See Hearing Examiner’s Decision Exhibit 1 (Environmental Review Commitee (ERC) Report) on Page 6 under Sec�on D.4 Transporta�on referencing the frontage improvements required by Home Depot and includes a reference to the future King County Metro I-Line Project. Street Frontage Improvements are required by RMC 4-6-060 and the ERC SEPA Authority, in accordance with WAC 197 -11-030(1) and WAC 197-11-158, only supplements the exis�ng City’s authority and does not overwrite or reduce exis�ng agency authority as defined by the Renton Municipal Code as suggested by the Hearing Examiner’s Decision and referred in the applicant’s appeal, therefore the required modified street sec�on is required to be constructed per RMC 4-6-060 or as modified. Chronology and Linked Files (The Home Depot) City of Renton - Page 3 of 5 c. The civil construc�on permit was issued on October 16, 2022 with a condi�on shown on Sheet L1.7 (Page 42 of 56) of the Approved Civil Construc�on Plans sta�ng “Street trees and street ligh�ng required within ROW planning strip, along Talbot Rd S., unless waived”. An appeal was not received following the original Land Use approval which iden�fied the required frontage improvement, following the Civil Construc�on Permit Plan Approval October 14, 2022 with the condi�on of approval to install street trees and street ligh�ng on Talbot Road S, or following Civil Construc�on Permit Issues on October 16, 2022. d. City Staff repeatedly throughout the project reminded and informed the Applicant both verbally and in wri�ng of the requirement to install the frontage improvements along S Grady Way and Talbot Road S. No ac�on was taken by the Applicant to request a waiver for these required improvements. 3. In accordance with Condi�on 2 of Hearing Examiner’s Decision, a Lot Line Adjustment (LUA22- 000209) was submited by the applicant to address the building encroachments crea�ng two outlots. Outlot 1 is at the intersec�on of Talbot Road S and S Grady Way and Outlot 2 is south of Outlot 1 along Talbot Road S. Under the Principles of Acceptability for the Lot Line Adjustment defined under RMC 4-7-060.B.4 combined with the improvements required as part of the Home Depot Redevelopment project, street frontage improvements per RMC 4-6-060 are required to be completed prior to recording of the Lot Line Adjustment. a. City Staff found during the review of the Lot Line Adjustment that the required dedica�on along Talbot Road S did not provide the required 2 feet of clear zone between the proposed sidewalk and the right of way dedica�on. The City offered the following op�ons to the Applicant to address the reduc�on in the required right of way dedica�on while preserving the ability to construct the required improvements regardless of who installs them: i. Adjust the right of way dedica�on shown on the Lot Line Adjustment to provide the required 2 feet of dedica�on, or ii. Coordinate with King County Metro to establish a Temporary Construc�on Easement so that if they are ready to construct their required Talbot Road S improvements for the King County Metro I-Line Project prior to Home Depot or future Outlot 2 property owner then there will be sufficient space to do so. Home Depot informed the city that they would not be revising the Lot Line Adjustment and began coordina�ng with King County Metro to establish a temporary construc�on easement. The City will consider this item addressed and would not hold up the recording of the Lot Line Adjustment once the City received a signed Temporary Construc�on Easement between the two par�es. If the applicant at any �me chooses to revise the Lot Line adjustment to reflect the code required clear zone, the city would also accept this and would not hold up the recording of the Lot Line Adjustment. b. The Lot Line Adjustment Decision was approved on October 18, 2022 subject to the condi�on that frontage improvement be constructed in accordance with the Site Plan approval for Home Depot (LUA21-000452). 4. The Applicant requested Cer�ficate of Occupancy and to record the Lot Line Adjustment prior to comple�ng all required improvements including the frontage improvements outlined along Outlots 1 and 2 along S Grady Way and Talbot Road S. In accordance with RMC 4-9-060.C for Chronology and Linked Files (The Home Depot) City of Renton - Page 4 of 5 deferral procedures of on- and off-site improvements beyond temporary occupancy permit, the City no�fied the applicant that a deferral permit applica�on was required for the all improvements that have not been completed and approved by the City. These items included, but were not limited to, the frontage improvements for Outlots 1 and 2. a. The Applicant submited deferral permit applica�on, including but not limited to the frontage improvements along Outlots 1 and 2. Note: It has assumed that the applicant has no objec�ons to the validity of the improvements not specifically men�oned as part to of the appeal and does not appeal these items (i.e. plaza improvements, etc.). b. The City issued a Decision on April 7, 2023 approving the deferral request in accordance with RMC 4-9-060.C under two (2) separate deferral permits, one for Outlot 1 (DEF23001823) and one for Outlot 2 (DEF23001824) under the condi�on that deferred items shall be: a. Completed by no later than April 7, 2026, b. The associated Outlot frontage improvements are permited by another en�ty, or c. The associated Outlot was sold to another en�ty. These condi�ons gave Home Depot some flexibility and provided some surety to the city that the improvements required by the Home Depot Redevelopment project would be constructed. c. City issued the Temporary Cer�ficate of Occupancy on April 25, 2023, enabling Home Depot to meet its scheduled Grand Opening on May 3, 2023. 5. The Applicant has appealed the deferral permit decision sta�ng that the frontage improvements along Talbot Road S are not required, however, an appeal on the deferral permit is not the appropriate mechanism to dispute whether the improvement is required nor does it determine what the required improvements are, it only sets what improvements may be deferred, the surety amount required for associated deferred improvements, and sets the �ming of how long the improvements may be deferred. These are the items that can be appealed as part of this decision. Therefore, the City requests that the Hearing Examiner dismiss the appeal on the grounds that the deferral permit does not require the improvements. The applicant should submit a street waiver request that discusses how a waiver of these frontage improvements meet the waiver criteria under RMC 4-9-250.C.5. The City will review the street waiver request based on these criteria and issue a decision. At that �me, if the applicant disagrees with the City’s decision, then that decision can be appealed to the Hearing Examiner. Note: Under preliminary review of the street waiver criteria, it is unlikely that the requested street waiver would meet the waiver criteria and it would likely be denied. Undergrounding of U�li�es on S Grady Way 1. Condi�on 34 of the Hearing Examiner’s Decision states: “The undergrounding of power lines pursuant to RMC 4-6-090 has not yet been addressed in the staff recommended condi�ons of approval or the staff report. At hearing, the par�es have agreed to defer resolu�on of the issue pending further assessment of the applicability of RMC 4-6-090. Applicant’s legal counsel has also raised the issue of Dolan propor�onality, which staff may also have to further assess. At hearing the par�es also agreed to subject any Chronology and Linked Files (The Home Depot) City of Renton - Page 5 of 5 disagreement on the underground issue to hearing examiner appeal. As recommended by staff, if the par�es cannot mutually agree on whether power lines should be undergrounded, the Applicant shall put its posi�on in the form of a modifica�on request and the resul�ng staff decision shall be subject to hearing examiner appeal.” City and Applicant ’s opinions regarding this mater have remained the same since the hearing and the city has not received a modifica�on request from the Applicant to evaluate whether the city would support a modifica�on to leave the exis�ng overhead lines in S Grady Way. Therefore, the requirement to underground the u�li�es within S Grady Way are s�ll required. 2. In accordance with RMC 4-9-060 Deferral Permit, to receive a Cer�ficate of Occupancy all work associated with the site and building improvements must be complete. Therefore, the City required a deferral permit for the undergrounding of the u�li�es on S Grady Way. 3. The Applicant has appealed the decision of the deferral permit sta�ng the undergrounding is not required, however, an appeal on the deferral permit is not the appropriate mechanism to dispute whether the improvement is required or not as a deferral permit does not determine what the required improvements are, it only sets what improvements may be deferred, the surety amount required for associated deferred improvements, and sets the �ming of how long the improvements may be deferred. These are the items that can be appealed as part of this decision. Therefore, the City requests that the Hearing Examiner dismiss the appeal on the grounds that the deferral permit does not require the improvements. The applicant should in accordance with Condi�on 34 of the Hearing Examiner’s Decision, submit a modifica�on request if they believe that they should not be required to underground the u�li�es. EXHIBIT B: Acknowledgment for Building and Construction Permit Review The Home Depot Project 05-18-2022