HomeMy WebLinkAbout2023-08-04 City's Supplemental Motion to Dismiss w ExhibitsSUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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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 1
(S. Grady Way & Talbot Rd. S.)
AND
Outlot 2
(Talbot Rd. S.)
(LUA21-000452; C22003168)
NO. DEF 23001823 (Outlot 1)
And
NO. DEF 23001824 (Outlot 2)
SUPPLEMENTAL
MOTION TO DISMISS
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”) solely to supplement its
Motion to Dismiss the Appeals of the Deferrals by Home Depot (“HD”) pursuant to permission
of the Hearing Examiner by email to the parties on July 28, 2023. For ease of reference, this
Motion addresses both Appeals as limited by the Hearing Examiners Pre-Hearing Order
Paragraph G (street frontage improvements, excluding undergrounding of power lines and the
amount of security). The City’s arguments in favor of dismissal are substantially the same for
both Appeals.
SUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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I. BACKGROUND
The City incorporates the Procedural History, including the Narrative and Chronology
(Response, Exhibit A),from its initial Response (July 6, 2023), and reiterates key points here. The
City also clarifies for the record that requirements for street improvements are articulated in
the Civil Construction Permit rather than a separate Building Permit. RMC 4-4-030.E requires
that “all on- and off-site improvements required of the project shall be constructed and
approved by the City or alternatively deferred or waived” before a permanent certificate of
occupancy for a building is issued. The City issued a notice of complete application site plan
review, environmental (SEPA) review, and modification for HD on December 22, 2021 (LUA21-
000452).
On May 18, 2022, the City and Dan Zoldak, on behalf of HD, entered into an agreement
which allowed the project to be expedited (Response, Exhibit B “Acknowledgment for Building
and Construction Permit Review”). That acknowledgement included that: “Applicant agrees
that completion and issuance of a Certificate of Occupancy for the proposed Home Depot retail
store will ultimately be contingent on its compliance with … all relevant Construction Permits,
and all relevant Building Permits.” (emphasis added).
On July 26, 2022, the Hearing Examiner 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 HD (LUA21-000452).
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
SUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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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anticipated lot line adjustments (Hearing, Exhibit 16, see e.g. pp 7, 9, and 44).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).
On August 9, 2022, the Hearing Examiner issued his Final Decision, PR22-000065 on
LUA21-000452 (“PR22-000065/LUA21-000452”).
Procedurally, street standards including frontage improvements are applied at review of
the civil construction permit for building permits (RMC 4-6-060.C.) The civil construction and
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 Civil Construction Permit was approved on October 17, 2022. On the same day, it
was issued to Dan Zaldak, the HD representative, via email (attached and incorporated herein
as Exhibit A) which included a link to the civil plans, and which noted there were conditions to
approval. Mr. Zaldak responded (attached and incorporated herein as Exhibit B) and did not
object to the conditions.
As requested by the Hearing Examiner, Exhibit C, incorporated herein, is Drawing L1.7
(page 42) of the Approved Civil Construction Plans (Permit No. C22003168) that highlight the
required Talbot Rd. S. street frontage improvements for Outlots 1 and 2 as a condition of
approval of the permit. The full approved civil plan set, with conditions, is available here:
https://edocs.rentonwa.gov/Documents/DocView.aspx?id=9940679&dbid=0&repo=CityofRent
on . The approved plan with conditions covers onsite and frontage improvements including, but
SUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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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not limited to, utilities, grading, roadway, channelization, illumination, and landscaping
improvements.
II. MOTION TO DISMISS:
This matter is before the Hearing Examiner following HD’s April 21, 2023 Notices of
Appeal of two deferral decisions entered by the City’s Development Engineering Director. The
decisions that are the subject of these appeals each approve HD’s requests to defer the
required street improvements along S. Grady Way and Talbot Rd S. for HD’s Outlots 1 and 2,
respectively. In other words, the administrative decisions grant HD additional time (with a
surety) to complete the required street frontage improvements. Even if HD was “aggrieved” by
this decision granting its requested deferral,1 reversing the deferral decisions will not achieve
HD’s desired outcome. It is the City’s view that reversal of the Deferrals will result in HD being
required to immediately construct the street improvements identified in its building permits.
In substance, HD actually appeals the street frontage improvement requirement itself,
not the decision to defer (delay) its obligation to complete the requirement. The City moves to
dismiss this Appeal as untimely (RMC 4-8-110.C.6) HD’s appeal letters expressly request
reversal of the street frontage requirement, not the deferral of HD’s obligation to implement
the requirement: “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” (see e.g., Outlot 1 Notice of Appeal,p.5).
1 It is unclear how HD has standing under RMC 4-8-110.C.1 to appeal the City’s decisions that grant its
requested relief.
SUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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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Those requirements were properly and timely imposed according to RMC 4-6 during the
civil construction permit process after the Final Decision of the Hearing Examiner (RMC 4-6-
060.C) and noted on drawings and approved permits. On October 17, 2022, the City provided
HD with approved Construction Plans Permit (C22003168), showing the requirements for street
frontage improvements including both street trees and lighting (Exhibit C “required … unless
waived”).
The street frontage improvement requirements were subject to appeal within 14
calendar days of issuance (RMC 4-8-110.C.2). The requirements were noted as a condition of
approval on the Civil Construction Permit issued on October 17, 2022. HD did not appeal the
conditions of its Civil Construction Permit, nor did it apply for waiver of the street improvement
requirements.
Since HD did not timely appeal or apply for waiver, the City maintains that the Permit
conditions regarding street improvements became final on or about October 31, 2022 and HD
has waived their right to appeal those (RMC 4-8-110.C.2 and RMC 4-8-110.C.11). The two
above-captioned appeals should be dismissed as untimely pursuant to RMC 4-8-110.C.5.
III. CONCLUSION
Appellant’s Appeal of Deferral is little more than a delayed attempt to circumvent PR
22-000065/LUA21-000452, the City’s permit appeal process, and its street frontage
improvement requirements. The City respectfully requests the Hearing Examiner dismiss the
appeals as untimely. The Dismissal will also have the effect of leaving the 3-year period to
SUPPLEMENTAL MOTION TO DISMISS APPEALS
(DEF 230001823 & DEF 230001824)
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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complete the required street improvements in place and continue to allow HD time to identify
alternative means to ensure the improvements are completed.
RESPECTFULLY SUBMITTED, this 4th day of August, 2023.
CITY OF RENTON:
By:________________________________
M. Patrice Kent, WSBA #42460
Sr. Assistant City Attorney
Attorney for City of Renton
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From:Jonathan Chavez
To:Luis Rebelo
Cc:Dan Zoldak; Rob Porter; Chip Vincent; Vanessa Dolbee; Jill Ding; Brianne Bannwarth; Matthew Herrera; Thomas
Main
Subject:Home Depot Civil Plan Approval - Construction Bond (C22003168)
Date:Monday, October 17, 2022 3:50:11 PM
Attachments:Final Invoice.pdf
Home Depot - Civil Plan Approval.msg
Importance:High
Luis,
We can allow site work to start today, past the previous boundary set forth by the Early Civil Permit
(C22004541), until Monday, October 24, 2022 at 4PM. This should allow Dan and Home Depot
enough time to pay the attached final invoice AND secure/submit the construction bond needed to
perform the rest of the work.
Please keep all site work from now until the 24th limited to the site itself; the following shall not be
allowed to start until the construction bond is received:
Sewer Main installation.
Storm Connection to public storm system on Grady.
Undergrounding.
Sidewalk, permitter/street landscaping, lighting and signals.
Approved Full Civil Plans (C22003168), with conditions: https://fileshare.rentonwa.gov:8443/?
ShareToken=D5E6EC80C7F522DF36D8EAC21629AF04C7DD3B56
Also, prior to full Civil Permit Issuance, we will need confirmation from you that you accept that
approved plans with conditions/comments. Please let me know if you have any questions,
JONATHAN CHAVEZ, P.E. | CIVIL ENGINEER III
City of Renton | CED | Development Engineering Division
1055 S Grady Way | 6th Floor | Renton, WA 98057
Virtual Permit Center | Online Applications and Inspections
(425) 430-7288 | jchavez@rentonwa.gov
&9)*#*5#$JWJD$POTUSVDUJPO1MBO8JUI$POEJUJPOT3FDFJWFE
CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open
attachments unless you know the content is safe.
From:Dan Zoldak
To:Jonathan Chavez; Luis Rebelo
Cc:Rob Porter; Chip Vincent; Vanessa Dolbee; Jill Ding; Brianne Bannwarth; Matthew Herrera; Thomas Main
Subject:RE: Home Depot Civil Plan Approval - Construction Bond (C22003168)
Date:Tuesday, October 18, 2022 4:35:51 PM
Thank you Jonathan.
From: Jonathan Chavez <JChavez@Rentonwa.gov>
Sent: Monday, October 17, 2022 6:50 PM
To: Luis Rebelo <LRebelo@larsandersen.com>
Cc: Dan Zoldak <DZoldak@larsandersen.com>; Rob Porter <rporter@robcon.com>; Chip Vincent
<CVincent@Rentonwa.gov>; Vanessa Dolbee <VDolbee@Rentonwa.gov>; Jill Ding
<JDing@Rentonwa.gov>; Brianne Bannwarth <BBannwarth@Rentonwa.gov>; Matthew Herrera
<MHerrera@Rentonwa.gov>; Thomas Main <TMain@Rentonwa.gov>
Subject: Home Depot Civil Plan Approval - Construction Bond (C22003168)
Importance: High
Luis,
We can allow site work to start today, past the previous boundary set forth by the Early Civil Permit
(C22004541), until Monday, October 24, 2022 at 4PM. This should allow Dan and Home Depot
enough time to pay the attached final invoice AND secure/submit the construction bond needed to
perform the rest of the work.
Please keep all site work from now until the 24th limited to the site itself; the following shall not be
allowed to start until the construction bond is received:
Sewer Main installation.
Storm Connection to public storm system on Grady.
Undergrounding.
Sidewalk, permitter/street landscaping, lighting and signals.
Approved Full Civil Plans (C22003168), with conditions: https://fileshare.rentonwa.gov:8443/?
ShareToken=D5E6EC80C7F522DF36D8EAC21629AF04C7DD3B56
Also, prior to full Civil Permit Issuance, we will need confirmation from you that you accept that
approved plans with conditions/comments. Please let me know if you have any questions,
JONATHAN CHAVEZ, P.E. | CIVIL ENGINEER III
City of Renton | CED | Development Engineering Division
1055 S Grady Way | 6th Floor | Renton, WA 98057
Virtual Permit Center | Online Applications and Inspections
(425) 430-7288 | jchavez@rentonwa.gov
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