HomeMy WebLinkAboutCity's Response to Appellant's Appeal_Outlot 2 (07.06.2023)
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 1
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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 2
(Talbot Rd. S.)
DEF23001824
(LUA21-000542; C22003168)
NO. DEF 23001824
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 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 to an application from The
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 2
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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] 2, 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 2) – Page 3
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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 2) – Page 4
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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to code requirements for other street frontage improvements along Talbot 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 August 9, 2022, the HEX issued his Final Decision, PR22-000065 on LUA21-000542
(“PR22-000065”), with conditions. Condition 2 requires “A lot combination or other method to
resolve the building encroachments, as approved by the Current Planning Project Manager,
shall be recorded prior to the issuance of a Temporary Certificate of Occupancy (TCO) for the
proposed Home Depot. If an alternative method for removing the building encroachments is
approved, the proposal shall demonstrate compliance with all aspects of the Renton
Municipal Code” (emphasis added).
The Final Decision (PR22-000065) approved the only street modification requested. It is
silent as to the requirement of 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-
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 5
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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.
The Home Depot references a footnote in the Reconsideration as limiting City staff
authority related to any modification after site plan review. Home Depot appears to
misconstrue the footnote reference (PR22-000065 – Reconsideration, p 4, fn 1) to RMC 4-4-
080F.10 regarding number of parking spaces required, which is expressly within the site plan
review process (RMC 4-9-200E.3.c) with street frontage improvements which are properly
applied during the building permit process (RMC 4-6-060.C), or perhaps as disallowing with
modifications requested by the applicant (in this case The Home Depot) under RMC 4-9-250D,
which was expressly required under the initial PR22-000065 for a different street frontage
improvement requirement.
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
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 6
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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approved Construction Plans Permit (C22003168), showing the requirements for street
frontage improvements including both street trees and lighting (Sheet L1.7 “required … unless
waived”).
Pursuant to PR22-000065, Condition 2, a Lot Line Adjustment creating to outlots was
submitted to address building encroachments. Subject to RMC 4-7-060.B.4 and as required for
the Home Depot redevelopment project under RMC 4-6-060, street frontage improvements are
applicable to the frontage along both newly created Outlots 1 and 2, and must be completed
prior to recording the Lot Line Adjustment.
During review of the proposed Lot Line Adjustment, the City identified that the necessary
two-foot clear zone in the right of way dedication was not provided and proposed alternatives
to meet the clearance. The proposed alternatives were for HD: to adjust the right of way
dedication; or, to coordinate with King County Metro to establish a Temporary Construction
Easement to identify access to construct the necessary street improvements as needed.
Documentation to the City of either alternative would meet the condition for recording on the
Lot Line Adjustment approval that frontage improvements be constructed according to the site
plan approval. This appealable decision was issued to the Home Depot on or about October 18,
2022.
The City did not receive an appeal of its permit decisions on the construction permits, 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
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 7
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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Deferral will result in The Home Depot being required to immediately construct the street
improvements identified in its building permits.
IV. APPEAL
a. Assertions
i.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 is an “abuse of power” (Notice of Appeal,
p.1) and demonstrate the City has shown “Bad Faith and Intentional Interference” (Notice of
Appeal, p.4) with respect to its business interests, and is acting in a manner that is “arbitrary
and capricious, and infeasible” (Notice of Appeal, p.4) by requiring compliance with its street
frontage improvements.
The City notes for the record that the HD store held its grand opening on May 4, 2023, is
currently operating, and as a result of the Deferral that was issued Home Depot (or a successor
owner) is not compelled to complete the street frontage improvements for up to three years.
ii.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 limitation of the City’s street frontage
improvement requirements for the Home Depot to only S. Grady Way. In the alternative, HD
asserts that R22-0065 acts as a constructive requirement for King County Metro to install street
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 8
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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frontage improvements on Talbot Road S., despite the fact that King County Metro did not have
a site plan under review, nor were they present at the Hearing.
iii.Street Frontage Improvements are not required
The Home Depot claims that street frontage improvements are not required on the
newly created Outlot 2 because “The Home Depot has not applied for a building permit or to
short plat or subdivide Outlot 2” and therefore does not meet the plain language requirement
of RMC 4-6-060.C. Further, RMC 4-6-060.F.1.a also acts to exempt the Outlot, “Outlot 2 is
already developed [and] [t]here is zero (0) square footage of commercial development on
Outlot 2.” (Notice of Appeal, pp3-4).
iv.Equitable Estoppel
The Home Depot asserts that “the City should be equitably estopped form imposing
Talbot Road S. frontage improvements at this late date.”
b. Response to Assertions
i.Street Frontage Improvements:
The site plan application proposal from The Home Depot incorporated Talbot Road S.
street frontage improvements. There is no current application on file for the “proposed” King
County Metro I-Line. King County Metro has substantive due process rights, which would be
implicated if the Home Depot were correct, and PR22-0065 sua sponte ruled on King County
Metro obligations under the Renton Municipal Code when they have no site plan on review and
they were not represented at the Hearing on the Home Depot project. The City will not impose
obligations in land use actions outside specific applications properly before the City.
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 9
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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With respect to applicability of street frontage improvements to Outlot 2, Home Depot’s
assertion for the first time in the many months of project development that Outlot 2 is a stand-
alone exception to the City’s street frontage improvements, the City disagrees. RMC 4-11-090
defines a “site” as a single lot, or two or more contiguous lots that are under common
ownership or documented legal control, were developed or are part of a development
proposal. A “site plan” is a detailed plan drawing, prepared to scale, showing accurate
boundaries of a site and the location of all buildings, structures, uses, and principal site
development features proposed for a specific parcel or parcels of land. “Contiguous properties”
are those properties sharing a property line (RMC 4-11-030). Every site plan, including that
approved under PR22-000065, includes Outlot 2 as a specific parcel of land implicated in the
redevelopment.
ii.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. 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 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.
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 10
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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”).
iii.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.
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.
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 11
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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iv.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
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.
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.
MOTION TO DISMISS and
RESPONSE TO APPEAL (Outlot 2) – Page 12 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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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
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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
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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