HomeMy WebLinkAboutThe Home Depot's Response to the City's Motion to Dismiss and Supplemental Motion to Dismiss1
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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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)
THE HOME DEPOT’S
RESPONSE TO THE CITY’S
MOTION TO DISMISS AND
SUPPLEMENTAL MOTION TO
DISMISS
The Applicant, The Home Depot (“Home Depot”), hereby responds to the Motions to
Dismiss filed in DEF 23001823 (Outlot 1) and in DEF23001824 (Outlot 2) within the City’s
Answer to the Notice of Appeal and the (consolidated) Supplemental Motion to Dismiss filed
on August 4, 2023 (collectively, the “Motion”).
I. INTRODUCTION
The procedural posture of this appeal is strikingly similar to Chelan County v. Nykreim,
146 Wn.2d 904, 52 P.3d 1 (2002). In both cases, the finder of fact is asked to consider whether
a municipality can reverse or modify its previous decision, after that decision had become
final. The Washington Supreme Court decided the answer to that question is “no.”
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 2 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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In this appeal, each party contends the other party is attempting to collaterally attack a
final land use decision. Home Depot contends the City improperly and belatedly imposed
Talbot Road street frontage improvement requirements that are inconsistent with the
Examiner’s August 9, 2022 final, site plan approval decision, as reconsidered in September
2022. The City contends Home Depot’s consolidated appeals should be dismissed as untimely
because Home Depot did not appeal the City’s October 17, 2022 approval of Home Depot’s
civil construction plans (the “Construction Plans”) or the City’s October 18, 2022 approval of
Home Depot’s lot line adjustment. Mot. at 6.
Home Depot’s position should prevail under Nykreim because (a) the Examiner’s
Decision is first in time; (b) the October 17, 2022 approval of the Construction Plans was not
a final, appealable decision; (c) the Construction Plans do not contain the street frontage
improvements the City actually imposed in April 2023; and (d) the City’s October 18, 2022
approval of the lot line adjustment was not contingent upon additional frontage improvements
outside of the Examiner’s Decision, as the City contends. Consequently, Home Depot’s appeal
is not untimely and the City’s Motion should be denied.
II. BACKGROUND FACTS
A. Procedural History
The City’s Narrative and Chronology (Mot., Ex. A) does not contain citations to the
record or supporting evidence for many of its assertions of fact. Those unsupported assertions
should be disregarded as unreliable. RMC 4-8-100.G.3.f.ii (rules of evidence regarding
relevance and reliability apply to appeals to the Examiner).
1. Leading Up to the Examiner’s Decision
Home Depot’s conceptual site plan identified Talbot Road frontage improvements as
“future ROW improvements.” Declaration of Maren L. Calvert filed herewith (hereinafter
referred to as Calvert Decl.), ¶ 9, HD Ex. 5.1 Home Depot’s conceptual landscape plan did
1 Because the Home Depot’s appeals have been consolidated, Home Depot is providing its Enclosures 1-7 from
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 3 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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not identify any landscaping or improvements along Talbot Road, explaining instead:
“[i]mprovements along Talbot are for reference only. King County Metro has a project that
will install offsite improvement including Landscape.” Calvert Decl. ¶ 10, HD Ex. 6 (a.k.a.
Hearing Ex. 20).
In its Staff Report to the Examiner, the City said Home Depot’s proposed site plan and
proposed street modifications complied with the City Code’s street standards, subject to the
City’s advisory notes and conditions of approval stated in the Staff Report. Hearing Exhibit 16
at 46.2 The City’s advisory notes did not include a requirement for Home Depot to construct
street improvements on Talbot Road. Instead, “[a]s a condition of approval for the
modification,” the City required Home Depot to “design and dedicate right-of-way from the
proposed, new curb location to be installed by permit C21001128,” the City’s file number for
King County Metro’s Civil Permit Application under review by the City. Hearing Exhibit 14
at 7. The Staff Report also indicated that “street lighting and storm water improvements on the
public street frontages are applicable.” Hearing Exhibit 16 at 44.
At the July 2022 hearing, City Staff reiterated its position that no street improvements
were required on Talbot Road, noting King County Metro was “planning to route the new
RapidRide I-Line on Talbot Road S. Dedication would be required in accordance with the most
current version of the RapidRide I-Line plans.” Hearing Exhibit 24, at 9; Recording of Hearing
Examiner Proceeding on July 26, 2022, approximately 10 minutes, 30 seconds into the video,
https://edocs.rentonwa.gov/Documents/Browse.aspx?id=9788762&dbid=0&repo=CityofRen
ton&cr=1. Staff indicated curb, planter, and sidewalk improvements would be required along
South Grady Way (Hearing Exhibit 24, at 9), but neither the staff report, nor the advisory notes,
its Notices of Appeal as consolidated HD Exhibits 1-7 (“HD Exs.”) for ease of reference and to eliminate
duplicate copies.
2 “Hearing Exhibit” refers to exhibits entered into the record for the Hearing Examiner’s Final Decision, dated
August 9, 2022, and the Hearing Examiner’s Decision Upon Reconsideration, dated September 1, 2022. Copies
of the Hearing Exhibits can be found on the City’s website at
https://edocs.rentonwa.gov/Documents/Browse.aspx?id=9599511&dbid=0&repo=CityofRenton.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 4 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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nor staff’s presentation at the hearing included any such requirements for Talbot Road. Staff’s
statement at the hearing that street lighting and storm water improvements would be required
was consistent with the Staff Report. Id.
2. The Examiner’s Decision
The Examiner’s Decision, entered on August 9, 2022, approved Home Depot’s site
plan and Talbot Road frontage improvement modification. It expressly held: “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.” Calvert Decl. ¶ 6, HD Ex. 2 at 5:8-12 (emphasis added);
see also Hearing Exhibit 16, at Finding of Fact (“FOF”) 21, pp. 44-45. This finding is also
incorporated into the Construction Plans at Sheet R3.0, which is labelled “Conditions of
Approval.” Calvert Decl. ¶ 12, HD Ex. 8.
The Hearing Examiner also approved Home Depot’s street modification request to
reduce the right-of-way dedication width as described in FOF 22 of the City’s Staff Report:
22. Modification Analysis: The applicant is requesting a modification from RMC 4-6-060 in order to retain the existing pavement width on S Grady Way and to reduce the pavement width to the width proposed as part of King County’ s I-Line project and to reduce the right-of-way dedication along Talbot Rd S required to accommodate the following half street improvements: 0.5 foot wide curb, 8 foot wide landscaped planter, 8 foot wide sidewalk, and 2 feet of clear space at back of sidewalk. Dedication would be required pending the final survey. The proposal is compliant with the following modification criteria, pursuant to RMC 4-9-250. D.2, if all conditions of approval are met. Therefore, staff is recommending approval of the requested modification, subject to conditions as noted below: . . .
Staff Comment: The proposed modification would meet the objectives of function and maintainability intended by the code requirements. The City’ s Public Works Transportation Division have reviewed the S Grady Way and Talbot Road S rights-of-way and have determined that a modified street section is more suitable along the frontage of the project site. The Transportation Division currently has no plans to widen S Grady Way or Talbot Road S, however King County Metro has a
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 5 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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project currently under review (C21001128) for their Rapid Ride I-Line within Talbot Road S.3
Staff has reviewed the request and would support the approval of the following modification: the applicant shall provide sufficient right-of-way dedication to accommodate the frontage improvements required for King County’s I-Line project (City File No. C21001128)
Hearing Exhibit 16, at FOF 22, p. 45-46; see Calvert Decl. ¶ 6, HD Ex. 2 at 13:17-20
(incorporating FOF 22 of the Staff Report by reference).
3. The Reconsidered Decision
As the Examiner pointed out, the City (and Home Depot) sought reconsideration of
portions of the Examiner’s Decision, particularly regarding some of the Grady improvements.
The Examiner’s Reconsidered Decision deleted FOF 4, which stated: “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.” Calvert Decl. ¶ 11, HD Ex. 7 at 5:8-12.
The removal of FOF 4, however, did not affect the Examiner’s findings regarding Talbot Road;
approval of the Talbot Road modification (incorporating the City’s FOF 22); or the Examiner’s
incorporation of King County Metro’s frontage improvement plans into the Examiner’s
previous Decision.
4. Facts since the Reconsidered Decision
Home Depot submitted construction plans to the City, consistent with the Examiner-
approved site plan that identified the street frontage along Talbot Road as “future ROW
improvements.” Suppl. Mot., Ex. C. The City super-imposed a red-type-faced box on those
construction plans on October 17, 2022 stating: “condition of approval: street trees and street
lighting required within ROW planting strip along Talbot Rd. S. unless waived,” with arrows
pointing to Talbot Road (the “Condition”). Id.
///
3 The City’s assertion in the Motion that it does not have an application for King County Metro’s project (see
Mot. at 8:18-20; Suppl. Mot.), therefore, is inaccurate.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 6 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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Home Depot completed the lot line adjustment (“LLA”) application to fix building
encroachments, as required by condition 2 of the Examiner’s Decision. The City approved it
on October 18, 2022, and was prepared to record the adjustment subject to construction of the
frontage improvements “in accordance with the Site Plan approval.” Calvert Decl. ¶ 13, HD
Ex. 9.
In March 2023, the City notified Home Depot that it would be required to perform a
specific list of Talbot Road frontage improvements, or request their deferral, in order to obtain
its certificate of occupancy (“CO”). See Calvert Decl. at ¶ 16. On April 3, 2023, the City
confirmed King County Metro plans currently included the improvements, but because King
County Metro was not obligated to install them, the City required Home Depot to do so. See
Calvert Decl. ¶ 7, HD Ex. 3 at 1.
Home Depot applied to defer the Talbot Road frontage improvements on April 3, 2023.
See id. at ¶ 1.
On April 6, 2023, while Home Depot’s deferral applications were pending, the City
required Home Depot to dedicate additional right of way for Talbot Road or grant a temporary
construction easement (“TCE”) to King County Metro to accompany the LLA. Calvert Decl.
¶ 14, HD Ex. 10 at p. 6. “Without either, KC Metro will not be able to construct their
improvements.” Id. “This benefits Home Depot as it ensures a timely install of the
improvements, and subsequent return of the cash surety (for the deferrals).” Id.
On April 7, 2022, the City granted Home Depot’s deferral requests. Calvert Decl. ¶ 4,
HD Ex. 1.1 (Deferral Decision Outlot 1); Calvert Decl. ¶ 5, HD Ex. 1.2 (Deferral Decision
Outlot 2). Home Depot appealed the Deferral Decisions. Notice of Appeal (Outlot 1); Notice
of Appeal (Outlot 2).
On April 12, 2022, the City changed its position on the dedication or TCE option,
explaining: “The TCE is needed, on top of the dedication, to allow for the construction of
these improvements by another party (KC Metro), on Home Depot’s property; If Home Depot
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 7 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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were installing the improvements, no TCE would be needed.” Calvert Decl. ¶ 14, HD Ex. 10
at 1 (April 12 email) (emphases added). “KC Metro will need to re‐grade past the LLA‐
established property lines to construct the new planter, landscaping, sidewalk, and driveways
along Talbot Rd S.” Id. The City then explained that if Home Depot refused to dedicate the
additional land and grant the TCE, Home Depot would be required to perform the
improvements itself. See id. at 2-3.
The City’s standard form deferral surety bond agreement required the applicant to
agree to perform all of the deferred improvements. See Calvert Decl. ¶¶ 7-8, HD Exs. 3 and
4. Home Depot attempted to modify that language to make it subject to Home Depot’s appeals.
The City would not allow any such changes. See id.
Home Depot asked the City if it would grant a waiver of the Talbot Road frontage
improvements pursuant to RMC 4-9-250.C.5.d (waivers of street improvements may be
granted if “[r]equired improvements will be installed as part of a City project, as identified in
the City’s Transportation Improvement Program or similar documentation as determined by
the Administrator”). See Calvert Decl. ¶ 18. The City said it likely would not grant a waiver.
Id.
III. ARGUMENT
The City’s Motion argues that its October 17, 2022 building permit is final, was not
appealed, and therefore the appeal presently before the Hearing Examiner is untimely. Mot.
at 2. The City’s Motion, however, ignores context, chronology, and controlling law.
A. The City Cannot Belatedly Impose Street Frontage Improvements Contrary to the Examiner’s Decision
The parties agree that a land use decision, if not appealed, is final. See RMC 4-8-
100.H.5 (“decisions…of the Hearing Examiner are final unless appealed or a reconsideration
is requested and granted”); Nykreim, 146 Wn.2d at 939 (prohibiting county from reversing,
belatedly appealing, or denying permits related to boundary line adjustment (“BLA”)
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 8 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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erroneously approved by its planning director).
The problems for the City with this indisputable tenant of law are multiple. First,
contrary to the City’s arguments (Mot. at 6; Suppl. Mot. at 5), the Construction Plans
transmitted to Home Depot on October 17, 2022 do not represent a final, appealable decision.
Second, the Construction Plans do not impose the requirements about which the City objects.
Third, just like the BLA decision in Nykreim, the Examiner’s Decision approving the Home
Depot site plan predates the City’s decision on the Construction Plans, prohibiting the City
from imposing inconsistent street frontage improvements conditions later through its building
or construction permit reviews.
1. City Approval of the Construction Plans Was Not a Final, Appealable Decision
The City’s Motion originally alleged that it imposed the contested Condition through
a building permit. Mot. at 5. After the Examiner asked the City to provide a copy of that
permit, the City pivoted, explaining the Condition was actually imposed through a Civil
Construction Permit, citing its transmittal of the Construction Plans to Home Depot on October
17, 2022. Suppl. Mot. at 2:3-6. We assume the City made this adjustment because building
permits submitted in conjunction with a site plan, as in this case, are subject to hearing
examiner review and approval – which did not occur here. RMC 4-8-070.H.1.q.
According to the City’s website, civil construction permits are subject to a nine-step
review and approval process. See Calvert Decl. ¶ 15, HD Ex. 11. The City’s “approval” of
the construction plans in October 2022 was step four. See id. at 1. Because there were five
additional steps required, including a “final administrative review” and a “final meeting to
discuss site issues,” the City’s step-four, October 2022 “decision/approval” was not a final
appealable decision. See id. at 3.
The City’s Motion to dismiss based upon the preclusive effect of its allegedly “final”
Construction Plan decision, therefore, fails.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 9 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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2. Construction Plans Do Not Impose Objectionable Requirements
As the City admits, it only has authority to impose street frontage improvements that
are “consistent with” the Examiner’s land use decision. Mot. at 10. Thus, Home Depot, the
City, and the Examiner are required to interpret the Condition in a manner that is consistent
with the Examiner’s Decision. See 73A C.J.S. Public Administrative Law and Procedure §
500 (“On review of the acts, decisions, or orders of administrative agencies, the presumptions
indulged in by the courts usually are rebuttable. In general, however, the presumption of
regularity or validity of an administrative determination is a strong one, and clear and
convincing evidence is required to overcome it.”).
a. Examiner’s Decisions Regarding Talbot Road
As the Notices of Appeal point out, the Examiner’s Decision expressly held: “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.” Calvert Decl. ¶ 6, HD Ex. 2 at 5:8-12 (emphasis
added).
The Decision also approved Home Depot’s street modification request to maintain the
existing paved width on Talbot Road, stating: “the applicant shall provide sufficient right-of-
way dedication to accommodate the frontage improvements required for King County’s I-Line
project (City File No. C21001128).” Hearing Exhibit 16, FOF 21 and 22 at pp. 44-46; Calvert
Decl. ¶ 6, HD Ex. 2, at 13:17-20 (incorporating by reference FOF 22 in the Staff Report). The
City’s argument that approval of this modification request relates solely to the right-of-way
width and does not concern any of the other potential frontage improvements along Talbot
Road (Mot. at 4:18-19) ignores the rest of the record.
As cited and quoted at length above, the City’s Staff Report said Home Depot’s
proposed site plan and proposed street modifications complied with the City Code’s street
standards. The City’s advisory notes did not require Home Depot to construct street
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 10 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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improvements on Talbot Road. Instead, “[a]s a condition of approval for the modification,”
the City required Home Depot to “design and dedicate right-of-way from the proposed, new
curb location” which was “to be installed by permit C21001128,” i.e., King County Metro.
Hearing Exhibit 14, at 7. The Examiner’s Decision incorporated these findings by reference.
Calvert Decl. ¶ 6, HD Ex. 2 at 13 (referencing conclusions of FOF 22 in the staff report).
In addition, Staff Report FOF 21 expressly recognized: “The submitted plans
included the current proposed frontage improvements for the I-Line project and the
applicant submitted a modification request (Exhibit 22) to maintaining (sic) the existing
paved width on Talbot Rd S[.]”) (Hearing Exhibit 16 at 44-45) (emphasis added). This
finding is incorporated into the October 17, 2022 “Approved Civil Construction Plans (Permit
No. C2203168)” (Suppl. Mot. at 3:19) at Sheet R3.0, which is labelled “Conditions of
Approval”. Calvert Decl. ¶ 12, HD Ex. 8.
The Staff Report explained a width modification was necessary, advisable, and met the
objectives of city code “to accommodate the frontage improvements required for King
County’s I-Line project (City File No. C21001128).” Hearing Exhibit 16, FOF 22, p. 45-46;
See also Calvert Decl. ¶ 6, HD Ex. 2, at 13:17-20 (incorporating FOF 22 by reference).
At the July 2022 hearing, City Staff reiterated its position that no street improvements
were required on Talbot Road, due to “the most current version of [King County Metro’s]
RapidRide I-Line plans.” Hearing Exhibit 24, at 9; Recording of Hearing Examiner Proceeding
on July 26, 2022, approximately 10 minutes, 30 seconds into the video. See also Calvert Decl.
¶ 10, HD Ex. 6 (a.k.a. Hearing Exhibit 20) (indicating Metro was to perform Talbot Road
improvements); Calvert Decl. ¶ 9, (a.k.a. Hearing Exhibit 2) (indicating “FUTURE ROW
IMPROVEMENTS” along Talbot Road). Staff indicated curb, planter, and sidewalk
improvements would be required along South Grady Way (Hearing Exhibit 24, at 9), but
neither the staff report, nor the advisory notes, nor staff’s presentation at the hearing included
any such requirements for Talbot Road.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 11 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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The Examiner’s Decision, based upon all of this evidence and incorporating at least
some of it by reference, therefore, is not “silent” as to Talbot Road street frontage
improvements other than the width modification, as the City contends. The Examiner
expressly incorporated King County Metro’s improvements to Talbot Road by reference.
On reconsideration, the Examiner did not modify these portions of the Examiner’s
Decision. Thus, taken together, the Examiner’s Decision and Reconsidered Decision found
Home Depot was only responsible for “frontage improvements along Grady Way” and
dedicating right-of-way on Talbot Road to King County Metro. Calvert Decl. ¶ 6, HD Ex. 2,
at 5:8-12, 13:17-20); Hearing Exhibit 16, at FOF 22, p. 45-46. King County Metro was
responsible for Talbot Road frontage improvements.
b. Construction Plans Requirements
The Condition the City placed on the Construction Plans – upon which the City bases
their Motion – simply states: “condition of approval: street trees and street lighting required
within ROW planting strip along Talbot Rd. S. unless waived,” with arrows pointing to Talbot
Road. Suppl. Mot., Ex. C. A proper interpretation of this Condition requires the parties to
read the Condition in context, giving effect to the Condition, the rest of the language and
images on the Construction Plans, and the Examiner’s Decision, as a whole. RMC 4-9-200.I
(requires civil construction plans and building permits to be “in compliance with the approved
site plan”); see Suppl. Mot. at 3:9-11 (admitting same).
Doing so, requires the Condition to be interpreted as requiring “street trees and street
lighting [to be installed] within ROW planting strip along Talbot Rd. S.”4 in accordance with
King County Metro’s plans,5 as “future ROW improvements,”6 “unless [otherwise
subsequently] waived.”7
4 Suppl. Mot., Ex. C.
5 Calvert Decl. ¶ 6, HD Ex. 2 at 5 (incorporating King County Metro frontage improvement plans by reference).
6 Suppl. Mot., Ex. C; Calvert Decl. ¶¶ 9-10, HD Exs. 5 and 6.
7 Suppl. Mot., Ex. C.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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Given this context, there was no reason for Home Depot to appeal the Construction
Plans, even if it had been a final, appealable, land use decision. The Construction Plans did
not require Home Depot to perform Talbot Road improvements. They simply required Talbot
Road improvements to be installed, in the future, by King County Metro as the Examiner had
previously held.
c. Deferral Decision Requirements
Even if the City’s late-added Condition on the Construction Plans were interpreted to
require Home Depot to build the improvements before obtaining a certificate of occupancy
(which the Condition does not say), the Condition still would not have informed Home Depot
of the bases for its current appeal. The Condition does not contain the bulk of the Talbot Road
frontage improvements the City eventually required through its Deferral Decisions.
Eight months after the Examiner’s Decision and six months after the Construction Plan
“approval,” the City issued its Deferral Decisions detailing the following Talbot Road frontage
requirements:
Outlot 1 required ROW improvements: 8’ planter; 8’ sidewalk; 2 ADA ramps (corner of Talbot/Grady); corner plaza; streetlights & ped lights per city standards…4 aps push buttons; landscaping/irrigation” and “Home Depot is responsible for: Outlot 1, Talbot: street lighting and street trees. Required improvements may be deferred. Right of way dedication must be completed before TCO/CO.
and
Outlot 2 required ROW improvements: 8’ planter; 8’ sidewalk; streetlights & ped lights per city standards landscaping/irrigation” and “Home Depot is responsible for: Outlot 2, Talbot: street lighting and street trees. Required improvements may be deferred. Right of way dedication must be completed before TCO/CO.”
Calvert Decl. ¶ 4, HD Ex. 1.1 (Outlot 1), at 6 (emphases added); Calvert Decl. ¶ 5, HD Ex. 1.2
(Outlot 2), at 4 (emphases added), respectively. The City had never notified Home Depot of
the bold-faced requirements before. This was the first time the City provided notice that it
expected Home Depot to perform the improvements and required they be installed prior to
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 13 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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issuing a certificate of occupancy (CO), rather than “in the future” as previously indicated.
In addition to the new bold-text requirements, the Deferral Decisions also required
Home Depot to demolish 23 trees; demolish more than 13,600 square feet of landscaping; and
install ten (10) junction boxes. Calvert Decl. ¶ 4, HD Ex. 1.1 (Outlot 1), at 4; Calvert Decl. ¶
5, HD Ex. 1.2 (Outlot 2), at 3. None of these requirements had ever been identified by the
Examiner or the City as conditions of approval before.
The Deferral Decisions, therefore, departed markedly from both the Examiner’s
Decision and the Condition and presented the first time the City required Home Depot to
perform the frontage improvements in a final, appealable, decision. The City’s Motion should
be denied.
3. Nykreim Requires Reversal of the Deferral Decisions and Remand to Remove Talbot Road Frontage Requirements
Where, as here, a municipality has made a final land use decision and that decision is
not appealed – such as the Examiner’s Decision – the municipality is prohibited from
attempting to change or deviate from that decision through subsequent permitting processes.
Nykreim, 146 Wn.2d at 938-10. This is true, even if the original decision was wrong. Id.
In Nykreim, the County’s original land use decision was the approval of a boundary
line adjustment (“BLA”). 146 Wn.2d at 911-912. Nykreim then submitted an application for
a conditional use permit (“CUP”) to construct three residences on a 30-acre lot. Id. at 912-13.
While reviewing the CUP application, the County discovered the BLA conflicted with the
county's adopted development regulations and revoked it. Id. at 913. The county then filed a
declaratory judgment action, seeking affirmation that it had properly exercised its authority in
revoking the BLA. Id. at 913-14. The Washington Supreme Court held it had not. Because
the County's decision to grant the BLA was a final decision and was not appealed, the County
could not revoke it. Id. at 925-26. See also Twin Bridge Marine Park, L.L.C. v. State, Dep't of
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 14 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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Ecology, 162 Wn.2d 825, 844, 175 P.3d 1050, 1059 (2008) (citing Nykreim for this
proposition).
The facts are strikingly similar here. The City’s attempt to “adjust,” modify, or revoke
the Examiner’s Decision that (a) incorporated King County Metro’s frontage improvement
plans by reference and (b) approved Home Depot’s Talbot Road improvement modification is
improper. Municipalities cannot change their minds after the fact by exercising otherwise
seemingly innocuous permitting authority to modify a previous, final land use decision. Such
behaviors run contrary to the state’s “strong public policy supporting administrative finality in
land use decisions. . . . ‘[I]f there were not finality [in land use decisions], no owner of land
would ever be safe in proceeding with development of his property[.]’” Nykreim, 146 Wn.2d
at 931 (quoting Skamania County v. Columbia River Gorge Commission, 144 Wn.2d at 49, 26
P.3d 241 (alterations in original) (quoting Deschenes v. King County, 83 Wn.2d at 716–17,
521 P.2d 1181 (1974).
Even if the Construction Plans were final, and they contained the disputed frontage
improvement requirements, they still could not be enforced. RMC 4-9-200.I requires civil
construction plans and building permits to be “in compliance with the approved site plan.” See
Suppl. Mot. at 3:9-11 (admitting same). In other words, if the construction permit condition
of approval is inconsistent with the approved site plan/Examiner’s Decision (which it is), the
Condition is contrary to law and unenforceable. See Nykreim, 146 Wn.2d at 939-940
(government may not revoke previous land use decision when statute of limitations for appeal
of decision has expired).
Thus, even if the Construction Plans imposed the requirements as the City contends,
and even if the Construction Plan decision were final, the Nykreim decision would prohibit the
Examiner from dismissing the appeals. Home Depot has raised sufficient questions about the
City’s actions and objections that the Construction Plans constitute a collateral attack on the
Examiner’s Decision to warrant appellate review in instant case.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 15 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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B. The Examiner Has Authority to Provide the Requested Relief
The City’s contentions that Home Depot may not have standing and this is the wrong
forum for the requested relief (Suppl. Mot., at 4) are incorrect.
A party has standing to appeal a final land use decision if the party was aggrieved and
affected by the decision. RMC 4-8-110. Home Depot was aggrieved by the Deferral Decisions
because (1) they impose Talbot Road frontage improvements contrary to the Examiner’s
Decision and (2) in order to obtain the deferrals, the City required Home Depot to contractually
agree to perform the improvements. (To date, Home Depot has not so agreed.)
Because the City’s Deferral Decisions are the first, written, final decision imposing
Talbot Street frontage improvements on Home Depot directly, they present the first, appealable
opportunity for Home Depot to seek relief. If Home Depot had not appealed, the City would
likely have deemed the Deferral Decisions to be final and enforceable. See Calvert Decl. ¶¶
4-5, HD Exs. 1.1 and 1.2, at 1-2 (explaining the decisions would be final if not appealed within
14 days).
In fact, Home Depot had no choice but to appeal. The City refused to accept Home
Depot’s surety bond unless Home Depot contractually agreed to perform all of the
improvements listed in the Deferral Decisions. Calvert Decl. ¶¶ 7-8, HD Exs. 3 and 4; see
RMC 4-9-060.B.3 (deferral is not granted unless and until surety bond is paid).
The City’s actions, therefore, have placed Home Depot in a procedural conundrum. If
this is not the correct form to appeal the City’s imposition of Talbot Road frontage
improvements as listed in the Deferral Decisions (and nowhere else), then what forum would
be appropriate? Home Depot either (a) performs the Talbot Road frontage improvements; (b)
pays a bond and contractually agrees to perform the Talbot Road improvements; (c) forgoes
any opportunity to obtain a final certificate of occupancy; or (d) appeals to the Examiner for
relief. In short, Home Depot has no other way out. It is stuck with the Talbot Road frontage
improvements unless the Examiner exercises its authority to provide the requested relief.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 16 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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Because the Deferral Decisions exceed the City’s authority, followed unlawful
procedure, are affected by error of law, are clearly erroneous, and are arbitrary and capricious,
RMC 4-8-110.4.b authorizes the Examiner to act.
The Examiner may reverse the Deferral Decisions and remand the matter back to the
City with instructions to remove any conditions of approval that are inconsistent with the
Examiner’s Decision that incorporated King County Metro’s frontage improvement plans by
reference. RMC 4-8-110.4.b (empowering examiners to affirm, remand, or reverse a decision
on the grounds listed above, if the substantial rights of the applicant may have been
prejudiced).
C. The City Improperly Mandated Home Depot Dedicate More Right-of-Way and Grant a TCE to King County Metro
In addition to imposing Talbot Road frontage improvements contrary to the Examiner’s
Decision through the Deferral Decisions, the City simultaneously mandated that Home Depot
dedicate more right-of-way for Talbot Road and grant King County Metro a TCE (the “TCE
Mandate”) so that King County Metro could perform the “necessary street improvements.”
Mot. at 6. The City stated if Home Depot did not do these things, then Home Depot would be
required to perform the street improvements itself. Calvert Decl. ¶ 14, HD Ex. 10 at 1-2.
This TCE Mandate – issued five days after the Deferral Decisions – is inconsistent with
the Deferral Decisions. It shows the City’s intent to require both Home Depot and King
County Metro to perform the Talbot Road frontage improvements, apparently intending to
release one of them from the requirement if the other one performs first. Calvert Decl. ¶ 14,
HD Ex. 10 at p. 6 (the TCE Mandate “benefits Home Depot as it ensures a timely install of the
improvements, and subsequent return of the cash surety (for the deferrals).” Id. (emphasis
added).
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 17 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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This is improper. The Examiner’s Decision did not condition its approval on either
Home Depot or King County Metro performing the Talbot Road frontage improvements. The
Examiner’s Decision expressly incorporated King County Metro’s plans by reference and did
not impose any Talbot Road frontage improvement requirements on Home Depot. The City
does not have authority to add a Home Depot back-up plan after the fact. Nykreim, 146 Wn.2d
at 939-940.
The City claims Home Depot cannot challenge the TCE Mandate because the City
issued it on October 18, 2022, and Home Depot did not appeal it. Mot. at p.6. The City,
however, does not provide a copy of an allegedly “final land use decision” to support this
argument.
As discussed above, the City’s October 18, 2022 email approving the LLA was not
conditioned upon granting a TCE to King County Metro. See supra, Section II.A.4. The City
added that condition later in an email, not a final land use decision. See Calvert Decl. ¶ 14,
HD Ex. 10.8
The City’s Motion to Dismiss must be denied. Even if the TCE Mandate were a final,
unappealable decision, it is inconsistent with the Examiner’s Decision and cannot be enforced.
Given the above and the holding in Nykreim prohibiting municipalities from making
post-decision changes, Home Depot has raised sufficient questions about the City’s actions
and collateral attacks on the Examiner’s Decision to warrant appellate review.
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8 The City contends its actions were appropriate under RMC 4-7-060.B.4, which does not allow an LLA to be
approved if it is submitted to evade state or local requirements. Mot. at 6:5-9. Home Depot’s LLA was not an
attempt to evade state or local requirements. It was required as a condition of approval #2 in the Examiner’s
Decision to resolve building encroachments.
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THE HOME DEPOT’S RESPONSE BRIEF TO CITY’S MOTION TO DISMISS - 18 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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IV. CONCLUSION
For all of the reasons discussed above and to be discussed at a hearing on the City’s
Motion, Home Depot requests the Examiner deny the City’s Motion to Dismiss.
Dated this 11th day of August 2023.
SCHWABE, WILLIAMSON & WYATT, P.C.
By: Maren Calvert, WSBA No. 53940 Julie Wilson-McNerney, WSBA No. 46585 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone: (206) 407-1516 Facsimile: (206) 292-0460 Emails: mcalvert@schwabe.com jwmcnerney@schwabe.com For the Applicant/Appellant The Home Depot
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CERTIFICATE OF SERVICE - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of August, 2023, I caused to be served the
foregoing THE HOME DEPOT’S RESPONSE TO THE CITY’S MOTION TO
DISMISS AND SUPPLEMENTAL MOTION TO DISMISS on the following party at the
following address:
M. Patrice Kent, WSBA No. 42460
Sr. Assistant City Attorney
City of Renton
1055 S. Grady Way
Renton, WA 98057
Telephone: (425) 430-6480
pkent@rentonwa.gov
Attorneys for The City of Renton
Cynthia Moya Renton City Clerk 1055 Grady Way Renton, WA 98057 CMoya@rentonwa.gov olbrechtslaw@gmail.com City Hearing Examiner
by:
U.S. Postal Service, ordinary first class mail U.S. Postal Service, certified or registered mail, return receipt requested hand delivery facsimile electronic service other (specify)
/s/ Lisa D. McKee
Lisa D. McKee, Paralegal/Legal Assistant