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Home My WebLink AboutLUA-06-071_Report 03Buck~ Gordon LLP VIA HAND DELIVERY Ms. Bonnie Walton City Clerk City of Renton 1055 South Grady Way Renton, WA 98055 February 2, 2007 Re: Hearing Examiner Motions and Declarations Dear Ms. Walton: ),:_,t,.:JS) S'',,i:: )(:,(i-(/i(; :>:;75 ,-,_1·· k :1· , , L:-1 < )I -, CITY OF RENTON FEB O 2 2007 RECEIVED CITY CLERK'S OFFICEf !f t,n M/v We submit the following documents for filing with the Hearing Examiner on behalf of appellants Brad Nicholson and the Alliance for South End (ASE): • Appellants' Reply Brief Regarding Motion for Ruling on Standing; • Appellants' Reply Brief Regarding Motion to Remand Site Plan Approval; and • Third Declaration of Peter Buck. These pleadings are filed in the Matter of the Appeals of ASE and Brad Nicholson regarding The Director's Administrative Site Plan Approval and The Director's Administrative Interpretation/Policy Decision. We have included extra copies for the Hearing Examiner. Copies of this letter and the pleadings have been transmitted via e-mail to all counsel of record. / , Veryitru I , L \ / Peter L. Bu Enclosures cc: Fred Kaufman, Hearing Examiner 1 2 3 Ii 5 6 7 8 9 10 11 12 13 111 15 CITY OF RENTON FEB O 2 2007 RECEIVED CITY,CLERK'S OFFICE fJ :; ''/7 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Plan Approval and the Director's Administrative Inte retation/Polic Decision NO. LUA-06-071-SA-A CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS I. INTRODUCTION In their Response, Appellants have tried to minimize the flaws in their appeals or cast blame on others for the defects in their appeals. Their appeals should be dismissed. 16 17 18 19 20 21 22 23 211 25 26 27 28 Appellants' appeal of the Director's Interpretation decision is mis1,>uided altogether The code allows the Director to modify design regulations pursuant to RMC 4-9-250D. And, that is what he did. 1 Appellants' appeal related to the Director's Interpretation should be dismissed. Appellants' appeal of the Director's Interpretation is untimely. Appellants offer no authority for their argument that the appeal period was tolled because they did not have actual notice of the decision. 1 See Finding #5 of Site Plan Report and Decision, August 17, 2006. Attached as Exhibit # I to Appellants' Notice of Appeal of Administrative Site Plan Approval. CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -I WARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFF1CE BOX 626 RENTUN. WASHINGTON 98057 PHONE l·H5) LSS-8678 • FAX (425) 255.5474 1 Nicholson did not perfect his appeal. Nicholson offers no authority for the proposition 2 that he did not need to file a Notice of Appeal or that he did not need to pay the $75 appeal 3 fee. Rather, he blames the city for accepting his appeal. His appeal should be dismissed. II 5 6 Appellants have still failed in their burden to prove that Nicholson has any particularized harm. Similarly, they have failed to prove ASE has associational standing because the evidence shows Nicholson is not directing these appeals. ASE's appeal should be 1 8 dismissed. 9 The City of Renton incorporates by this reference the facts and arguments set out in its 10 prior submissions in these appeals. The City of Renton incorporates by this reference the 1 1 12 13 111 15 16 17 18 19 20 21 22 23 211 25 Applicant's Reply to Appellants' Response to Motions to Dismiss Appeals of Interpretation/Policy Decision and Site Plan Approval. II. ARGUMENT AND AUTHORITIES A. The Director's modification of design regulations pursuant to RMC 4-9-250D is entitled to deference Appellants rest their arguments on RMC 4-l-080A( I) and the requirement therein that there be ambiguity. Appellants' analysis is in the wrong part of the code. Finding #5 of the Report and Decision of August 17, 2006 (hereinafter "Report and Decision") says: "Seven modifications were requested from the minimum standards of the Design Regulations. The requested modifications qualify for consideration under RMC 4-9- 2500 and 4-3-IOOL." One of the modifications to which this finding refers concerns where buildings will be placed on the site. On page 10 of the Report and Approval there is a discussion about the placement of the buildings. The salient portion appears in the last paragraph. It says, in pertinent part: 26 27 28 If the buildings were required to abut the sidewalk along Park Avenue N. a large gap would be created between buildings, which would not be beneficial CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -2 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOCTH S"ECONO STRCET • POST OFFICE BOX 626 RENTON. WASHlNGTO!'< 980S7 PHONE (415) Z55-!:167i,i • FAX l·U5) l~~-;,474 1 2 3 4 5 6 7 to pedestrians walking within the development. In addition, the building along the west side of Parking (sic) Avenue N has been reconfigured to provide retail store fronts facing Park Avenue N. Therefore, due to the provision of pedestrian pathways to the sidewalk along Park Avenue N, the provision of store fronts facing Park Avenue N, and the desire to not have a large gap between buildings within the developmeni staff recommends approval of the modification to the design standards to allow the proposed parking areas between the buildings on the south end of the project site and Park Avenue N. The Director's Modification is permitted by code.2 Therefore, there is no violation of 8 GMA or the Planning Enabling Act as urged by Appellants. The Director did not usurp the 9 authority of the City Council as the City Council gave him the authority to do what he did. 10 Moreover, as the code authorizes the Director to interpret the code and make the modification, 11 12 13 the code does not require a variance. The Director's authority is entitled to liberal construction by the Hearing Examiner. RMC 4-l-080C(2) provides: "In interpreting and applying the provisions of this Title, the 14 15 16 17 18 19 20 21 22 requirements herein shall be: ... (2) Liberally construed in favor of the governing body ... " Additionally, the Director's decision is entitled to great weight. RMC4-8-J JOE (7)(a) provides, in pertinent part: "The Hearing Examiner shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter/Title." Considering the code provisions authorizing the Director's decision and the deference that must be given to that decision, the Hearing Examiner should dismiss the Appeal of the Director's Interpretation/Policy Decision.3 23 /// 24 /// 25 26 27 28 2 The Director's authority lo make this modification has not been appealed by Appellants. 3 There is yet another section that permits modifications. RMC 4-8-<l70C(IO) allows modifications to development standards in the Urban Design Regulation Overlay District. The Landing is in such a district. CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -3 WARREN BARBER 6 FONTES, P.S. ATTORJ",;l:::YS AT LAW 100 SOUTH SECONIJ STREET • POST OFflCE aox 626 RENTON, WASHINGTON 98057 PHONE ('425) 255-fl671'1 • FAX (4l5) ZS5-Hii 1 2 B. The Appeal of the Director's Interpretation is untimely 4 3 Appellants offer no authority for the proposition that the Renton Municipal Code 11 provides that city staff members were required to provide notice of the Interpretation to non- 5 parties ofrecord in the Lowe's development application. Neither is there a provision that 6 1 "actual notice" of the Director's Interpretation is the triggering event for the appeal period. 8 Further, Appellants offer no authority for the proposition that the Hearing Examiner has the 9 authority to grant relief on constitutional grounds. 5 10 11 12 13 1) Courts strictly enforce the appeal period There is case authority for the proposition that the unambiguous appeal period will be strictly enforced. Compare Appellants circumstances to those in the case of Lakeside Industries, et al., v. Thurston County, et al. 6 There, project opponents (Friends) got a favorable land use decision, and, consequently, did not appeal. However, when the 15 16 landowner (Lakeside) appealed the unfavorable land use decision, Friends cross-appealed the 17 SEPA determination. Friends' appeal of the SEPA determination was outside the 21-days of 1 8 the land use decision. 19 20 21 22 23 24 25 Lakeside had applied for a special use permit to construct an asphalt manufacturing and recycling plant in the Nisqually Valley. Through various appeals, to the Hearing Examiner up to the Board of County Commissioners, the SEPA determination of a Mitigated DNS was upheld, and the special use permit was denied. 'By responding to the timeliness argument, Renton does not concede that the Appellants' appeal has relevance. 2 6 ' Rather, ASE has conceded that the code does not grant the Hearing Examiner authority to grant relief to Appellants on constitutional grounds. See ASE 's September 6, 2006, Notice of Appeal of Hearing Examiner 27 Decision, p. 5, footnote 2. (Appeal to the City Council). See also, Sec. B3, below. 28 6 119 Wn. App, 886, 83 P 3d 433 (2004) CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -4 WARREN BARBER cr FONTES, P.S ATTORNEYS AT LAW 100 SOt.:TH SECO~l) STRE&T • POST OFFICE aox 6Z6 RE1'TON, WASHINGTON 98057 PHONE (421) 255,867!1 • FAX (425) H5-HH 1 Friends, having won on the issue of the special use permit, did not appeal the SEPA 2 determination. However, Lakeside brought a LUP A action to challenge the denial of the 3 permit. Friends responded to the LlJP A action by cross-appealing the Mitigated DNS. II Lakeside brought the LUP A action on day 20 after the issuance of the decision denying the 5 permit. Friends filed its cross-appeal within 21 days ofLakeside's appeal but not within 21 6 days of the decision that denied the permit and upheld the Mitigated DNS. 7 8 Lakeside challenged Friends' cross-appeal as time barred. Friends argued that the date 9 ofLakeside's appeal should be the triggering event because it was not able to appeal before 10 then. 11 12 13 The trial court applied the unambiguous 21-day provision ofRCW 36.70C.040(3) and dismissed the appeal by Friends. Division II affirmed the dismissal. In rendering its decision the court discussed what the project opponent (Friends) could have done. At 901-902, the 111 court said: 15 16 17 18 19 20 21 22 23 211 25 26 27 28 Friends could have anticipated that Lakeside would likely appeal the Board's action. While Friends had only I day to file, it had 20 days to prepare its appeal. The substantive portion of Friends' answer to Lakeside's petition is four pages long. But the portion of the answer discussing the merits of Friends' nonsignificance determination argument is just over two pages. Accordingly, an even shorter document could have been prepared and filed in a day in order to comply with RCW 36. 70C.040(3). And, if necessary, Friends could have amended its original answer under CR 15. In the instant case, ASE and/or Nicholson could have become a party of record to the Lowe's matter.7 Neither one of them did that. Just as Friends could have anticipated Lakeside' s appeal and been ready to file its cross-appeal in a timely fashion, so too could ASE or Nicholson have become a party of record in the Lowe's matter. In that way, ASE or Nicholson could have appealed the 'Parties of record in the Lowe's matter got notice of the Director's decision. CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -5 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOCTH SEC.:0:-,J[) STREF.T • POST OFFICE BOX 626 RE.STON, WASHINGTON 98057 PHONt:: ( ... 15) 255-86711 • FAX ('1-J.S) H5-;'47<1 1 Director's Decision in a timely fashion. Just as Friends' appeal was dismissed, so should 2 ASE/Nicholson's appeals be dismissed. 3 4 5 2) Nicholson's failure to follow the Lowe's project casts a shadow on his credibility What is particularly curious is Mr. Nicholson's recurring testimony about how 6 interested he is in the development of the city, the possible stormwater runoff from large big 1 box retailers, how such runoff could affect Lake Washington, and the traffic created by big 8 box retail stores, as well as wanting to insure that the city follows its own laws about how 9 10 11 decisions are made. He claims he might shop at The Landing in the future and so he cares about how it will look and how he will come and go from that location. If Mr. Nicholson is 12 truly interested in all these things, it is odd that he did not seem to care about the Lowe's 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 project when it was going through the environmental process or the permitting process. All of his concerns can be raised regarding Lowe's. The oddity is magnified when you think about the fact that Lowe's is the only project, other than The Landing, that is being constructed in the UC-Nl Zone; and Lowe's may be closer in proximity to Mr. Nicholson's home than The Landing is. A reasonable person should ask: "why is Mr. Nicholson so concerned about The Landing, when he did not even bother to make an inquiry about the Lowe's project?" Similarly, that reasonable person should ask: "why is ASE so concerned about The Landing, when it did not even bother to make an inquiry about the Lowe's project?" That reasonable person might make the observation that Lowe's is not a possible competitor of Westfield's; The Landing is. All of Nicholson's "concerns" about The Landing are just as applicable, if truly applicable at all, to the Lowe's project Yet Nicholson did not think enough of his "concerns" CITY OF RENTON 'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -6 WARREN BARBER er FONTES, P.S. ATTORNEYS AT LAW 100 SOJ;TU StCONLl STREET • i'OST OFFlCE BOX 626 RE.STON. WASHlNGTON 98057 PHONE (4251155,867!'. • FAX (,US) lSS,5474 1 to raise them during the review of the Lowe's project. His testimony about his motivation for 2 appealing the land use decisions for The Landing lacks credibility. As ASE is seeking 3 associational standing, its appeal is riding Nicholson's coattails. Consequently, ASE is II 5 6 1 8 9 10 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 burdened with the same lack of credibility as Nicholson. 3) ASE has conceded that the Hearing Examiner does not have constitutional authority Appellants' argue that restricting their appeal of the Director's Interpretation violates due process. However, in its Notice of Appeal of Hearing Examiner Decision (September 6, 2006) (aka: Appeal to City Council of ASE I), ASE concedes: "Unfortunately, the Renton Municipal Code allows the Hearing Examiner to rule on the constitutional rights of developers who apply for permits, but the Examiner may not consider the constitutional rights of Renton citizens appealing a City decision. See RMC 4-8-1 IOE (7)(b)." ASE's Notice of Appeal of Hearing Examiner Decision, p. 5, footnote 2. Despite this concession, Appellants complain that "[t]he City's failure to provide any opportunity to object to the Setback Decision constitutes an ongoing due process violation." See Appellant's Response to Motions to Dismiss Appeals oflnterpretation and Site Plan Decisions. (Hereinafter" Appellants' Response") In fact, approximately five pages of Appellants' brief is dedicated to a due process discussion. As the Hearing Examiner cannot rule on the constitutional rights of ASE or Nicholson, the Appellants' discussion is moot. C Brad Nicholson did not perfect his appeal 1) No notice, no appeal Appellants argue, at page 17, et seq. of Appellants' Response, that the Appeal Notices filed by ASE and Nicholson complied with all of the RMC requirements. Appellants gloss CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -7 WARREN BARBER cr FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 FI.E.STON, WASHINGTON 980~7 PHONE ("21) 15<;.&;?fl • FAX (•25) 255-5<474 1 over a very glaring error. Appellants cannot point to any Notices of Appeal filed by 2 Nicholson or on his behalf. 3 On the other hand, ASE filed two Notices of Appeal". There were two documents 11 entitled "Notice of Appeal" and they were signed by an attorney on behalf of ASE. There are 5 no comparable documents for Nicholson. 6 1 Without question, ASE alleged, in its appeals, that Nicholson has standing. 9 Without 8 question, ASE alleged, in its appeals, that Nicholson wanted to appeal as well. However, Mr. 9 10 1 1 12 13 1 II 15 16 17 18 19 20 21 22 23 211 25 26 21 28 Nicholson did not notify the city that he wanted to appeal. That is the point. The code requires that a person who wants to appeal must file a written notice of appeal. RMC 4-8- 11 OC(3). Mr. Nicholson never did. Appellants mislead the Hearing Examiner regarding whether an attorney signed the Notices of Appeal on behalfofMr. Nicholson. At p. 19 of Appellants' Response, at lines 117-18 they wrote:" ... the Appeal Notices complied with each of these alleged requirements: they were signed and dated by Peter Buck, attorney for Brad Nicholson ... " Even a careless review of the Notices of Appeal will reveal no such indication that Peter Buck is the attorney for Brad Nicholson. Appellants dig an even deeper hole. At page 20, line I, Appellants urge that Mr. Buck's not signing the Notices of Appeal on behalf of Mr. Nicholson is not a requirement of the Renton Municipal Code. Neither does the code say that Mr. Buck needed to sign the Notice of Appeal on behalf of ASE, yet he did. Similarly, the Renton Municipal Code doesn't require that an Appellant sign a Response to a Motion to Dismiss, either. Yet, Mr. Buck signed the Appellants' Response on behalf of both ASE and Brad Nicholson. ' One was to appeal the Site Plan, the other was to appeal the Director's Interpretation Decision. 9 It was necessary for ASE to make this allegation as ASE needs to have a member with standing to have any chance of having associational standing. CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -8 WARREN BARIBER 6 FONTES, P.S. ATTORNEYS AT LAW 100 SOt.:TH SECOND STREET • POST Ofl'ICE BOX 6Zl':1 RE.1',:TON, WASHINGTON 96057 PHONE (425) Ht;.&;7fl • FAX (425) 255-5474 1 It is disingenuous to suggest that a municipal code must tell an Appellant how to sign 2 a document the Appellant intends the city to rely upon. It should be enough for a code to say 3 that a person who wants to submit an appeal must do so in writing. It seems incredible to 4 5 6 think an appeal could be submitted and not signed by the individual who seeks to appeal. How does an appellant become bound to the parameters of the appeal issues set out in the Notice of Appeal if he is not willing to sign the Notice of Appeal? How can an appellant 7 8 claim the benefit of having set out any appeal issues when he is not willing to sign the Notice 9 of Appeal? The fact is: he cannot. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Without having shown his willingness to be bound to any appeal issues ( due to his failure to sign a Notice of Appeal), how can Mr. Nicholson, in his personal capacity, advance any arguments on any issues? The fact is: he cannot. His appeals must be dismissed. 2) No check, no appeal The Appellants argue that submission of one check for the Site Plan appeal is sufficient to cover both Appellants. Further they argue that one check for the Appeal of the Director's Interpretation/Policy Decision is sufficient to cover both Appellants. See, Appellants' Response, p. 21, In. 3 et seq. The code is clear. If a person wants to appeal, he must pay the fee. Nicholson, in his individual capacity, wanted to appeal. Therefore, he needed to pay the fee. ASE wanted to appeal. Therefore, it needed to pay the fee. Appellants arb'lle that the city clerk's opinion about who paid the fee is irrelevant. That may be true. However, that doesn't eliminate the reality that there was only one fee paid for the Site Plan appeal.10 And, when the clerk took in the check with the Notice of Appeal signed on behalf of only one party (ASE) it only made sense that she concluded the check 10 Similarly, there was only one check submitted for the Appeal of the Director's Interpretation. CITY OF RENTON'S REPLY TO APPELLANTS. RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -9 WARREN BARBER 6 FONTES, PS. ATTORNEYS AT LAW 100 SOUTH SECOND STRE!oT • POST OFFICE BOX 626 RENTON, WASHINGTON 980~7 PHONE 1.+25) HS-fl678 • FAX l.+251 Z55-54H 1 went with the Notice of Appeal submitted by ASE. RMC 4-8-l lOC(4) requires that "[t]he 2 notice of appeal shall be accompanied by a fee .... " 3 Which party (ASE or Nicholson) paid the $75 for the Site Plan Appeal? 11 If ASE paid lj it, then Nicholson is out. If Nicholson paid it, then ASE is out. While that may seem like an 5 easy solution vis-a-vis the payment of the fee, the choice must be considered along with the 6 question of which party filed a Notice of Appeal. Consider this possibility: ASE filed a 7 8 Notice of Appeal but did not pay the fee. Nicholson paid the fee but did not file a Notice of 9 Appeal. In this scenario, both Appellants are out. 10 1 1 12 13 1 lj 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Only ASE filed a Notice of Appeal, through its attorney. So, who paid the fee, the entity that actually filed a Notice of Appeal or the person who did not? Appellants should choose wisely; the wrong answer could result in both Appellants having failed to perfect their appeals. 3) Blame the city clerk Appellants go on to argue that the responsibility must rest with the city clerk to catch any defects in Appellants' Notices of Appeal. See page 22, Ins. 7-8 of Appellants' Response. Appellants say: "Ms. Walton did not request additional checks or reject the Appeal Notices." And later, the Appellants say: "But having accepted the Appeal Notices filed by ASE and Nicholson, the City cannot now use the lack of a fee at the time of filing as an excuse to eliminate Nicholson's appeal." See, id. at Ins. 11-13. It is the function of the City Attorney's office to point out the defects in the Notices of Appeal or to challenge standing and jurisdiction and make those challenges through the proper process. And, it has done so. It is not the function of the city clerk to evaluate the 11 These arguments apply to the Appeal of the Director's Interpretation/Policy Decision as well. CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -10 WARREN BARRER e, FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 98057 PHONE (4H) 2'i5-867A • FAX (415) 255-HH 1 propriety of the appeal documents filed with her office. It is not the city clerk's function to 2 identify errors or deficiencies in the documents submitted or to read through the document to 3 ascertain if everything is in order. Appellants' arguments to the contrary are ludicrous. II 5 6 D. Nicholson is not a bona fide appellant in these appeals 12 If Brad Nicholson was to be a bona fide appellant in his individual capacity, he would have been asked to review the Notices of Appeal. Surely he would have asked the attorneys 7 8 why they did not sign on his behalf as they had for ASE. 9 In his declaration, Brad Nicholson does not testify that he reviewed the Notices of 10 Appeal or that he provided the $150 to the law firm to pay the appeal fee on his behalf 13 In 11 12 13 111 the face of the arguments made regarding Nicholson's failure to perfect his own appeal, the silence in the Nicholson declaration is remarkable. There is considerable testimony in the declaration that attempts to respond to the associational standing arguments. Why isn't there testimony regarding Nicholson's own appeal? 15 1 6 The fact that the two Notices of Appeal ( one for the Site Plan and one for the 17 Director's Interpretation/Policy Decision) were submitted only on behalf of ASE, the prayers 1 8 for relief were only in the name of ASE, and only one set of checks was submitted adds fuel 19 to the fire in the standing argument. Exactly who is driving the car? It is so obvious that 20 21 22 23 211 25 26 27 28 Brad Nicholson is a pawn in these appeals. Why else is his declaration so slanted in favor of ASE; yet his own interests are ignored? The answer is plain. Nicholson is not directing these appeals; Westfield/ ASE is. 1' With the Appellants' Response. Appellants offer two additional checks to pay for the Nicholson appeals. Unfortnnately, those checks are five months too late. They needed to be filed in August with a Notice of Appeal. RMC 4-8-l lOC(4) provides: "The notice of appeal shall be accompanied by a fee in accordance with RMC4-l- 170, the fee schedule of the City." (Emphasis added.) 13 He testified that he has made contributions to ASE. That may address ASE's arguments but it does nothing for Nicholson's own appeal. CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -11 WARREN BARBER f:r FONTES, P.S. ATTORNF..YS AT LAW 100 SOL.'TH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 98057 PHONE (4H) Z55·867t! • FAX (-H5) z55.5474 1 E. ASE has not met its burden of proof on standing. 2 It is undisputed that to pursue its appeals, ASE must have at least one member who 3 has standing to appeal as an individual. 14 Likewise, it is also undisputed that ASE, as the II party asserting standing, bears the burden of establishing the elements of standing.15 Finally, 5 6 ASE must prove that as an appellant it had standing at the time the appeals at issue were filed on August 31, 2006.16 7 8 On September 5, 2006, ASE's two previous appeals 17 were dismissed by the Hearing 9 Examiner's Decision for lack of standing. The Hearing Examiner inquired at the hearing 10 11 12 13 111 15 16 17 18 19 20 21 22 23 whether any ASE member had the right to direct ASE's litigation, asking "Who is driving the car?" The Hearing Examiner found that ASE did not have standing as it " ... is a mere shell created by the applicant's potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed development." ASE had previously submitted to the Hearing Examiner an excerpt of Bylaws for ASE.18 A review of this excerpt of ASE's Bylaws revealed that Brad Nicholson had no official say in the course or direction that ASE's litigation would take. In an attempt to cure this defect for its current appeals, ASE has submitted a new declaration from Brad Nicholson. He testifies that he was elected to the corporate offices of Vice President and Secretary of ASE, and that he " ... keep[s] corporate records for ASE, including minutes of meetings of 14 See. East Gig Harbor Imp. Ass 'n v. Pierce County, !06 Wn.2d 707, 710, 724 P.2d !009 (1986); Suquamish 211 Indian Tribe v. Kitsap County, 92 Wn. App. 816, 830, 965 P.2d 636 (1998); and Int'/ Ass'n of Firefighters, Local 17~9 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). 25 26 27 28 15 See, Concerned O(vmpia Residents for the Environment (C.O.R.E.) v. City of Olympia, 33 Wn. App. 677, 683, 657 P.2d 790 (1983). 16 See, Park v. U.S. Forest Service, 205 F.3d 1034, 1038 (8th Cir. 2000); Biodiversity Legal Foundation, et al. v. Badgley, et al., 309 F.3d 1166. 1171 (9th Cir. 2002); White v. Lee, 227 F.3d 1214. 1243 (9th Cir. 2000). 17 ASE previously appealed (I) The Director's Administrative Decision Designating The Landing Master Plan Application a Planned Action; and (2) The Director's Master Site Plan Approval. 18 See, Declaration of Peter L. Buck, dated AU!,'1151 18, 2006, Exhibit A. CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRET A T!ON AND SITE PLAN DECISIONS -12 WARREN BARRER & FONTES, P.S. ATTORNEYS AT LAW 100 SOL'TH SECOND STREET • POST OFFICE BOX 626 RENTON. WASHINGTON 9SOS7 PHONE l-1,ZS) 255,867!! • FAX (425) 255.;474 1 ASE's board ofdirectors,,19 Mr. Nicholson also testifies that " ... the Director of ASE has 2 made a practice of consulting members in advance of decisions concerning appeals or 3 litigation ... " and that " ... ASE has memorialized this historic practice by adopting the 11 following policy:" (not a by-law) (emphasis added by City of Renton) 5 6 7 8 9 10 11 12 The members shall be consulted by the director(s) in advance of all major decisions concerning appeals or litigation, including whether or not to appeal, whether to dismiss appeals, whether to settle, etc. The corporation shall carry out the directions of the members. 20 Finally, Mr. Nicholson testifies in his new declaration that ASE"_ .has amended its bylaws to formalize its members' control over the direction of the corporation ... " and he attaches an excerpt of ASE's Amended Bylaws as Exhibit D to his declaration.21 These facts, when closely examined, reveal that these efforts by ASE and Mr. 13 Nicholson, to establish ASE's standing, are akin to putting lipstick on a pig. 111 15 16 17 18 19 20 21 22 23 211 25 ASE has the burden to prove that it had standing at the time it filed its cu"ent appeals on August 31, 2006. However, the Hearing Examiner's Decision on ASE's prior appeals was not issued until September 5, 2006. ASE did not know that the Hearing Examiner would find that ASE lacked standing on the grounds that members did not have a right to direct ASE's litigation or that ASE was " ... a mere shell created by the applicant's potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed development."22 What is most striking about Mr. Nicholson's new declaration is the absence of any dates relating to (1) Mr. Nicholson's alleged election as a corporate officer, Vice President and Secretary; (2) when ASE allegedly "memorialized" its purported "historic practice" of consulting with members on major decisions concerning appeals or litigation in a written 26 19 See, Declaration of Brad Nicholson, dated Jannary 12, 2007, p. 2 ,i 8. 20 See, Declaration of Brad Nicholson, p. 2 119. 27 21 See, Declaration of Brad Nicholson, dated January 12, 2007, Exhibit D. 22 See, Hearing Examiner's Decision, September 5, 2006, p. 8. 28 CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -13 WARREN BARBER!'-: FONTES, P.S. ATTORNEYS AT LAW too SOCTH SECOND STREET • POST OFFICE ROX tilt, RESTON, WASHINGTON 98057 PHONIC !"iZ5} Z55-867fl • FAX !HS) lSS-S4H 1 policy, or for that matter, when the "historic practice" actually commenced; and (3) the date 2 when the Amended Bylaws were adopted. 3 This lack of factual evidence is critical and fatal to Appellant's position. If 1) Mr. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nicholson's election, 2) ASE's "memorialization" of its corporate policy; and/or 3) ASE's amendment of its bylaws to consult its members on major decisions, did not occur until after August 31, 2006, then ASE did not have any greater standing on August 31, 2006, than it did when ASE filed its previous appeals that were dismissed by the Hearing Examiner on September 5, 2006. ASE cannot create standing after filing its appeals on August 31, 2006. ASE had to have standing at the time the appeals were filed.23 It is ASE's burden to show that it had standing on August 31, 2006. ASE has failed to meet this burden because there is no evidence of when these alleged corporate actions were taken. For all we know, they were taken after the Hearing Examiner's September 5, 2006, decision. Brad Nicholson24 could have offered ASE's corporate minutes, corporate resolutions, or a complete copy of ASE's Amended Bylaws. Without question, this evidence is within the sole possession, custody and control of ASE. The law permits an inference to be drawn from this absence of evidence. In State v. Davis, 73 Wn.2d 271,280,438 P.2d 185 (1968), the Washington State Supreme Court stated: (T]he inference is based, not on the bare fact that a particular person is not produced as a witness, but on his (witness) non-production when it would be natural for him (party) to produce the witness if the facts known by him (witness) had been favorable. ASE' s unexplained failure to produce full by-laws, corporate minutes and resolutions creates a suspicion that there has been a willful attempt to withhold relevant, competent 23 See, Footnote 3, supra. 24 In his capacity as Vice President and Secretary of ASE. and the corporate officer responsible for maintaining ASE' s corporate records, including minutes of ASE' s Board of Directors, Brad Nicholson has custody or these documents if they exist. CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -14 WARREN BARBER e, FONTES, P.S. ATTORNEYS AT LAW 100 SOCTH SECO~D STRU;.T • POST OFFICE BOX !\26 RENTON, WASHINGTON 98057 PHONE (<125) 255.&,7!1 • FAX (415) ZS5-HH 1 evidence and testimony from the Hearing Examiner. This permits the Hearing Examiner to 2 infer that evidence regarding ASE's corporate records would either be adverse to Mr. 3 Nicholson's testimony and ASE's arguments or silent on the issue ofwbether any of the II actions testified to by Mr. Nicholson occurred before August 31, 2006. The Jack of complete 5 6 (not excerpted) corporate records, indeed supports an argument that they do not exist at all. In any event, the absence of this evidence (or any evidence as to the dates of these events) is 7 8 fatal to the viability of ASE's current appeals. 9 There is a complete and total failure to satisfy the burden of proof that standing existed 10 at the time of filing of the instant appeals. But this is not the only objection to Mr. 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 Nicholson's testimonial declaration and ASE' s arguments on standing. While the policy that was allegedly memorialized by ASE provided that "[t ]he corporation shall carry out the directions of the members," the sole excerpt of ASE's Amended Bylaws provided by Mr. Nicholson and ASE, states something very different. Section 2. 7 of the Amended Bylaws states that the board of directors "shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims." The Amended Bylaws do not require that the corporation must carry out the directions of the members.25 Substantively, what has changed since the Hearing Examiner's Decision of September 5, 20069 Nothing. Amended Bylaw Section 2.7 does not require the board of directors to carry out the directions of ASE's members and provides no ability of the member(s) of ASE to control the direction of its appeals. Westfield's hands are firmly on the wheel of ASE's car. Section 1.5 on Termination of Membership was previously provided as an excerpt of 25 See, Declaration of Brad Nicholson, dated Jannary 12, 2007, Exhibit D. CITY OF RENTON' S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -15 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOt..:TH SECOND STREET • POST OFHCE BOX 6U, RE:-.TON. WASHINGTON 98057 PHONE (425) 255·86711 • FAX (42~) 255-5.H 1 ASE's Bylaws only thirteen (13) days before the instant appeals were filed.26 Bylaws Section 2 1.5 provides that a member of ASE can have his or her membership terminated for such 3 reasons as any action that "is detrimental to the best interests of the corporation" or "for II 5 6 failure to actively support corporate purposes, or to actively participate in corporate activities" or for failure to meet the qualifications of a member in Section 1.1. In essence, if a member disagrees with the sole director's advice on whether or not to appeal or pursue litigation, the 1 8 member's membership could be terminated. Bylaws of this nature do not permit dissent or 9 permit meaningful control by the members. There is no showing that Bylaw Section 1.5 has 10 been amended or deleted, because, of course, Nicholson has provided only an excerpt of the 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 bylaws,27 which does not mention Bylaw Section 1.5. F. ASE/Nicholson have failed to show any "particularized harm" or "specilit injury" necessary to meet their burden of establishing the elements of standing. ASE and Brad Nicholson bear the burden of establishing the elements of standing. 28 On each claim, an appellant must demonstrate an injury in fact.29 Mr. Nicholson, in his own right and for purposes of associational standing for ASE, cannot rely solely on a threatened injury, but must present sufficient evidentiary facts to show that a threatened injury is "immediate, concrete, and specific. "30 Moreover, a mere assertion of injury, without factual support, is not sufficient to demonstrate an injury in fact.31 If the alleged injury is merely conjectural or hypothetical, quite simply, there can be no standing. 32 Likewise, a generalized claim that an agency is not correctly applying the law 26 See, Declarntion of Peter L. Buck, dated August 18, 2006, Exhibit A. " Supra, footnote 9. 28 See, C.O.R.E., supra, 33 Wn. App. at 683. 29 See, DaimlerChrysler Corp. v. Cuna, 126 S.Ct. 1854, 1858 (2006). 30 See, Trepanier v. City of Everett, 64 Wn. App. 380, 383, 824 P.2d 524 (1992). 31 See, Id. at 384. 32 See, Id. at 383. CITY OF RENTON'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -16 WARREN BARBER f:r FONTES, P.S. ATTORNEYS AT LAW !(Xl SOt:TH SECOND STREET • POST Otl'lCE BOX 6l6 RE:-.TON. WASHINGTON 98057 rHONE (HS) 255·86711 • FAX ( .. 2~) 255.5,474 1 2 3 does not confer standing. 33 ASE and Mr. Nicholson rely upon the Declaration of Brad Nicholson, dated 4 January 12, 2007, to support Mr. Nicholson's claims that he will suffer harm due to 5 decreased property values if The Landing project moves forward.34 Appellants do not 6 offer any testimony from a real estate expert or appraiser to corroborate Mr. Nicholson's 1 fears. 8 9 10 11 Any alleged injury to Mr. Nicholson's property values are speculative, remote, and not specific to Mr. Nicholson. Thousands of other residential property owners reside within the same market radius. The Hearing Examiner may take judicial notice that 12 property values are cyclical. Residential property values in Renton and King County have 13 sustained significant levels of appreciation over the last five years. It is purely speculation 14 as to what factors may affect Mr. Nicholson's future property values. It is far more likely 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that interest rates will have a greater impact on Mr. Nicholson's future property values than The Landing, located two miles from his residence. It is just as likely that the proximity of shopping and restaurants at The Landing will add to the value of Mr. Nicholson's property as a selling point for prospective purchasers. ASE and Mr. Nicholson have not established standing with regard to this claim. Appellants rely on Mr. Nicholson's recent declaration to claim that he will be harmed and suffer from increased traffic, delays, and increased risk in traveling along roads he uses to commute and travel generally.35 Mr. Nicholson's injury is generalized, speculative and not specific. He may choose to shop, visit or drive along certain roadways, 33 See, Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992). 34 See, Declaration of Brad Nicholson, dated January 12, 2007, p. 3, 14. p. 4 fl 15-16. 35 See, Id. pp. 1-2, 3, p.4118. RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING WARREN BAR.BER f-J FONTES, P.S. ATTORNEYS AT LAW I 00 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, \l/ASHINGTON 98057 PHONE (42S) 2'i5-A67fl • FAX {415) ZH-HH 1 just as thousands of other Renton and non-Renton citizens. This generalized claim is not 2 sufficient to grant him standing. Any traffic, delays, or increased risk in traveling along 3 11 the roads that Mr. Nicholson might encounter in the future may have numerous causes that 5 have nothing to do with The Landing. Again, Mr. Nicholson hasn't come forward with 6 any evidentiary basis for his fears. In fact, because of the substantial roadway 7 improvements being installed currently in anticipation of The Landing, Mr. Nicholson's 8 commute time may be shortened and made safer. The allegation of a threatened injury, 9 10 11 such as traffic, delays, and increased risk in traveling along roads he uses, requires that Mr. Nicholson show that the injury will be "immediate, concrete and specific; a conjectural or 1 2 hypothetical injury will not confer standing "36 13 Mr. Nicholson claims that he is "suffering" from commuting delays due to the 111 closure of Park Avenue for construction caused by infrastructure work. But Mr. Nicholson 15 fails to disclose in his declaration that Garden Avenue, an arterial located east of Park 16 17 18 19 20 21 22 23 211 25 26 27 28 Avenue, and which runs parallel to it in a north-south direction, is being used for traffic to detour around Park Avenue's closure. There are fewer traffic control lights on Garden Avenue that may delay traffic, than were located on Park Avenue. Mr. Nicholson also has failed to show that he suffers an injury that is different than thousands of other motorists who use these roads. Quite simply, Mr. Nicholson has failed to provide any evidence to establish injury in fact and standing as to this claim. Mr. Nicholson also claims that he uses Lake Washington, the Cedar River, and other shoreline and offshore areas near The Landing for fishing, boating and other recreational activities. He claims that he will be injured by the stormwater impacts caused 36 See, Harris v. Pierce County, 84 Wn. App. 222, 231, 928 P.2d 1111 (1996). RENTON'S RESPONSE TO APPELLANTS. MOTION FOR DECLARATORY RULING WARREN BARIIER & FONTES, P.S. A TTOR~EYS AT LAW 100 SOL'TH SF.CON[) STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 96057 PHONE (-HS) Z5S,8671'1 • FAX l·H5) z55.;414 1 2 by the project due to decreased water quality. Once again, Mr. Nicholson bases this claim upon his erroneous and unsubstantiated statement that The Landing will use the 1990 King 3 11 County Surface Water Design Manual.37 The Surface!Stormwater Consistency Analysis 5 for Sub-District JA specifically analyzed the stormwater impacts of The Landing. This 6 analysis makes clear that the stormwater analysis was conducted according to 2001 7 Department ofEcology standards, not the 1990 King County standards. Mr. Nicholson's 8 only evidentiary basis for his claim of stormwater-related "injury" is erroneous. Further, 9 Mr. Nicholson's claim of injury is speculative without evidentiary support. It is a claim of 10 11 generalized harm that is no different from hundreds or thousands of other Renton or non- 12 Renton citizens who use Lake Washington, the Cedar River or Gene Coulon Memorial 1 3 Beach Park. 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 Mr. Nicholson also claims injury on several procedural grounds, including alleged "failure to follow the law" in the Site Plan approval; "abandonment" of the development regulations and Comprehensive Plan; the city's "noncompliance with the law;" inability to participate in The Landing project; the city's "failure" to hold a public hearing on any decisions approving The Landing project; and "denial ofmy rights."38 The loss ofan alleged procedural entitlement, by itself, does not constitute sufficient injury in fact to support standing to sue. 39 Brad Nicholson must show a specific, concrete injury in fact, and no such injury is shown here. Mr. Nicholson alleges various generalized injuries, for which he fails to provide any evidentiary basis. These "injuries" are speculative, generalized and lack evidentiary support. Thus, they fall short of conferring standing. 37 See, Declaration of Brad Nicholson, dated January 12, 2007, p.411~ 19, 20, 21. 38 See, Id.p.31 13; p.41 17. " · See, Lugan, 504 U.S. at 573 n.8. RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING WARREN BARBER cr FONTES, l'.S. ATTORNEYS AT LAW lOO SOUTH SECO:-;D STREET • POST OFFICE BOX filfi REt-,;TON, WASHINGTON 98057 PHONE (42SJ H1-867fl • FAX (425) Z55-HH 1 2 Since ASE's sole associational member has failed to produce any evidentiary basis to show an injury in fact or that any threatened injury is "immediate, concrete, and specific," the 3 4 appeal by ASE/Nicholson of the site plan approval should be dismissed for lack of 5 standing. 6 1 8 9 10 11 III. CONCLUSION The Director's decision was permitted by code and, therefore, is not ultra-vires. Furthermore, Appellants failed to timely appeal that decision. They could have received notice of the Director's decision in the Lowe's matter but, because Lowe's is not a potential competitor for the true party in interest (Westfield), ASE/Nicholson chose not to 12 get involved in the Lowe's project. Appellants' appeal of the Director's Interpretation 13 Decision should be dismissed. 1 4 Nicholson, in his individual capacity, failed to perfect his appeal. There is no l 5 evidence that he complied with the requirement that he file a Notice of Appeal or that he 16 17 18 19 20 21 pay an appeal fee. Nicholson's appeals should be dismissed. ASE has failed in its burden of proof for associational standing. ASE has not been able to show that Nicholson has any harm that is specific to Nicholson, as compared to thousands of others. Further, ASE has not offered any credible evidence to show that Nicholson is directing this appeal. On the contrary, the evidence in the record shows that 22 Nicholson can be expelled from membership in ASE if he disagrees with the direction 23 24 25 26 27 28 taken by the directors. That is not driving the car. That's riding in the trailer behind the car. ASE should not be allowed to maintain this appeal. RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING \VARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • FOST OFFJCE BOX 626 RENTOK, WASHlNCTON 9R057 PHONE l•IZ5) 255-fl67S • FAX (-4251 255·HH 1 2 3 II 5 6 7 8 9 10 11 12 13 1 II 15 16 17 18 19 20 21 22 23 211 25 26 27 28 DATED this 2nd day of February, 2007. WARREN BARBER & FONTES, PS RENTON'S RESPONSE TO APPELLANTS" MOTION FOR DECLARATORY RULING By: cc J. Warren, WSBA #5853 L. Fontes, WSBA #9604 ark Barber, WSBA #8379 Attorneys for City of Renton WARREN BARBER 6' FONTES, P.S. A TTORl",;EYS AT LAW 100 SOUTH SECONU STREET • POST OFFJCE BOX 626 RENTON, WASHJNGTON 9R057 PHO!'JE (4Z5l 255,867!1 • FAX (-425! 25S·H74 ' 1 2 3 4 5 6 7 CITY OF RENTON FEB O 2 2007 RECEIVED CITY CLERK'S OFFICE( i-/ r /Y1_ Jv1 rv BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 8 In the Matter of the Appeals of ) ) 9 Alliance for the South End (ASE) and Brad Nicholson re: ) No. LUA-06-071, SA-A ) 10 11 12 The Director's Administrative Plan Approval And The Director's Administrative Interpretation/ ) APPELLANTS' REPLY BRIEF ) REGARDING MOTION TO ) REMAND SITE PLAN ) APPROVAL ) ) 13 Policy Decision ) 14 15 16 17 18 19 20 21 22 23 24 25 _________________ ) I. INTRODUCTION This City and Applicant have taken a shotgun approach to their responses, including countless disjointed defenses to various parts of Appellants' motion to remand. This response brief contains numerous sections responding to the shotgun pellets. 1 There is one overriding fatal flaw in the Site Plan that cannot be obscured by this shotgun approach. In a stunning revelation, the City and Applicant, contrary to the Director's Site Plan Decision, now take the position that there are no pedestrian-oriented streets within the Landing project. 1 In further support of this motion, the facts, authorities and arguments contained in all of Appellants' other pleadings are incorporated herein by this reference. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-I :\WP\ASE\SITE PLAN APPEAL"ASE REPLIES\020107-VERS10N8.REMAND PLY.DOC ORIGINAL Buck0 Gordon LLP 2025 First Avenue, Suite 500 Seatt!e, VVi':.. 98121 "3140 (206) 332·9540 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 A key element of the UC-Nl Zone is its orientation to pedestrians. Renton's development regulations shaped this district through special provisions related to pedestrian-oriented streets. The reply briefs of Applicant and the City demonstrate a project in total disarray with regard to this central regulatory issue. Apparently the City and Applicant completely ignored the regulations. Now for the first time they adjust their arguments, contending that there are no pedestrian-oriented streets in Renton at all. That is contrary to the law. II. ARGUMENT A. The Confusion Over Pedestrian-Oriented Streets Has Lead to a Site Plan in Need of Remand. The City of Renton has repeatedly designated Park Avenue North as "pedestrian- oriented." It was given that designation in the Conceptual Plan that serves as the basis for all land use approvals for The Landing; it was re-designated by the City Council in 2005; and the Director confirmed its designation in the text of the Site Plan Decision. This designation is intertwined into the laws of Renton. The City's Urban Design Regulations (RMC 4-3-100) dictate a number of design decisions based on proximity to pedestrian- oriented streets. See e.g., RMC 4-3-1 OO.E(2)(b) (prohibits parking between buildings and pedestrian-oriented streets); RMC 4-3-100.F(l)(b)(i) (requires that no more than 60 feet of street front along a pedestrian-oriented street be occupied by otl~street parking and vehicular access). The Site Plan does not comply with these design regulations. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-2 :\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND EPLY.DOC BuckgGordon LLP 2025 First Averws-, Suite 500 Seattle, WA ':,8121-3140 (206) 382-9540 I 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 argues that Park Avenue North is not a pedestrian-oriented street, perhaps recognizing that it has approved an invalid pian.2 The Applicant, scrambling in another direction, argues that Renton has no formal designation of pedestrian-oriented streets.3 Both positions are patently incorrect. The shifting positions taken by the Applicant and the City illustrate their complete disregard for the law and the pressing need for a remand to address this and other problems. 1. Pedestrian-Oriented Streets Are Designated in the Conceptual Plan Approved by City Council. Pedestrian-oriented streets are designated through the City's conceptual master planning process. The RMC defines "pedestrian-oriented development/street" and "pedestrian-oriented streets" as follows: PEDESTRIAN-ORIENTED DEVELOPMENT/STREET: Development on a pedestrian-oriented street is encouraged through master planning, building location and design guidelines and typically meets the following criteria: I) buildings in scale with the street, one to two (2) stories along residential/minor collectors and three (3) or more stories along primary and secondary arterials, 2) buildings located close to the street/walkway, 3) at least one pedestrian entry oriented to the street, and 4) clearly identified sidewalks and/or grade separated walkways. PEDESTRIAN-ORIENTED STREET: See STREET, PEDESTRIAN-ORIENTED. RMC 4-11-160 (emphasis added). STREET, PEDESTRIAN-ORIENTED: An area with streets and sidewalks specifically designated as such and intended for use by people walking; with special design and spatial treatment of building frontages; built at human scale; with uses of interest to and functional for people on foot; and designed to hold interest for pedestrians by encouraging 2 See City of Renton's Response to Appellants' Motion to Remand Site Plan Approval at 7. 3 See Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 5. PPELLANTS' REPLY BRIEF RE: MOTION TO EMA ND SITE PLAN APPROVAL-3 :\WP\ASE\SITE PLAN APPEAL\ASE REPUES\020107-YERSION8.REMAND EPLY.OOC Bucko Gordon LLP 2025 hst Averue. Sl;ite 500 Seattle, WA98171-314C (206) 382-9540 ' . 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 walking, browsing, and taking in the scene. Pedestrian- oriented streets are so designated in the Urban Center - North (District C). RMC 4-11-190. Similarly, the Comprehensive Plan in effect at the time the Conceptual Plan was approved defines "pedestrian-oriented development/streets" as follows: Development/streets intended to create and or augment pedestrian use, circulation and activity. Pedestrian-oriented streets are designated during conceptual planning and master planning. Comprehensive Plan, Glossary at p. IX-8 (emphasis added), attached as Exhibit A to Third Buck Deel. 2. The Development Agreement for The Landing Called for Designation of Pedestrian-Oriented Streets in the Conceptual Plan. The Development Agreement executed by the Renton City Council and Boeing in December 2003 provides that, when the landowner wishes to develop the property, "it will submit to Renton a Conceptual Plan including ... [v]ehicular and pedestrian circulation that includes a hierarchy and general location of type, including arterials, pedestrian-oriented streets, other local roads and pedestrian pathways." See Development Agreement, attached as Exhibit B to Third Buck Deel. Thus, the Development Agreement requires that certain streets (plural) be designated in the Conceptual Plan as pedestrian-oriented streets. The language is directive and unequivocal. 3. The Conceptual Plan for The Landing Designates Park Avenue as a Pedestrian- Oriented Street. Pursuant to the Development Agreement, Park Avenue North was unambiguously designated as a pedestrian-oriented street during the Conceptual Plan proceedings for The PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-4 :\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND PLY.DOC Buck(.\Gordon LLP ?C25 First Avenue, Suice 500 Sedttle, WA 981r-3140 (206) 382-9540 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 Landing. The Conceptual Plan approved by City Council describes the proposed pedestrian-oriented development and pedestrian-oriented streets as follows: The Conceptual Plan ... illustrates the cohesive redevelopment of the parcels into an urban retail center. The Plan contains a mix of large format "destination" retailers, mid-sized retail anchors, as well as small shop space concentrated along Park Avenue, envisioned as the significant pedestrian-oriented street in the area. Key to successful development of the property is reconfiguration and improvement of Park Avenue to serve as a critical pedestrian-oriented street in the project. To support the vision for the development of an urban retail center in this location, a generous sidewalk with street trees and on-street parking for Park Avenue is being proposed to enhance the environment in the public realm and encourage people to make Park Avenue a pedestrian street. See Conceptual Plan, attached as Exhibit C to Third Buck Deel. The Conceptual Urban Retail Plan/Conceptual Planning Diagram shown in the Conceptual Plan labels Park Avenue as a "[p ]edestrian oriented street lined with ground- floor retail storefronts with potential for office or residential above."4 Id. This graphic has been scanned and inserted below, with this text enlarged to improve legibility. II II II II 4 The Applicant's Site Plan Review Submittal dated May 22, 2006 also references the language in RMC 4-3- 100.G(3)(a) regarding designated pedestrian-oriented streets: "Along pedestrian-oriented streets, awnings, marquees, canopies and building overhangs extend for at least 75% of the fa,ade and are a maximum height of 15' above the ground and no lower than 8' above the ground." See Exhibit D to Third Buck Deel. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN AP PROV AL-5 :\WPIASE\SITE PLAN APPEALIASE REPLIES\020107-VERSIONS.REMAND EPLY.OOC Buck~ Gordon LLP 2025 F:rst Avenue, Suite 500 Se3ttle, WA 98121-314G (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CONCEPTUAL URBAN RETAIL PLAN Pedestrian oriented street lined with ground-floor retail storefronts with potential for office or residential above * Text entarged,to improve legibility. • CONCEPTUAL Pl.ANNING DlAGRAM fUllER • SEARS ARCHITECTS PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-6 :\WP\ASE\SITE PLAN APPEAUASE REPUES\020107-VERS10N8.REMAND PLY.DOC Buck~, Gordon LLP 202:::i f":rst Avenue, Suite 500 Seattle, WA 98121-314'.J (206) 382-95,10 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 4. Consistency with the Conceptual Plan is Required for All Elements of the Site Plan. There is no question that all subsequent approvals for The Landing must be consistent with the Conceptual Plan approved by the City Council. A fundamental decision criterion for site plans and master plans is the following: "The plan conforms to the approved conceptual plan required by development agreement for the subarea in question, if applicable." RMC 4-9-200.E(3)(a).5 The Development Agreement similarly provides that "Renton will evaluate all subsequent development permit applications within the Subdistricts based on consistency with the approved Conceptual Plan." Development Agreement at 7, § 3.3. City Council minutes and memoranda confirm that the Council and the public relied on these consistency requirements during review and approval of the Conceptual Plan. The Committee of the Whole report recommending adoption of the Conceptual Plan and stamped "Approved by City Council" on October 18, 2004, states as follows: "As outlined in the 2003 Development Agreement with The Boeing Company, all subsequent land use applications related to this property will be checked against the Conceptual Plan document for consistency prior to approval." See Exhibit E to Third Buck Deel. Similarly, in a memorandum Council President Don Persson, dated October 4, 2004, Alex Pietsch stated that "[t]he conceptual plan will be used as the basis for all future land use approvals ... Approving this Conceptual Plan will provide the City with 5 See also RMC 4-9-200.A(l) ("All Master Plans within these zones must be consistent with the conceptual plan required by development agreement(s) applicable to the UC-NI and UC-N2 Zones for the specific district( s) where they are located"). PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-7 :\WPIASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND EPLY.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 certainty related to key factors related to the proposed development ( e.g., square footage, road network, mix of uses, etc.)."6 This is also reflected in a Memorandum from Alex Pietsch to Council President Don Persson, dated October 14, 2004. ("Center Oak pledges to design its project consistent with the revised Urban Design Guidelines" and that, "(b ]y adopting this augmented plan, the City Council will provide Center Oak with a set of parameters within which it can develop its project while maintaining a high minimum level of development and ensuring high quality design."). See Exhibit G to Third Buck Deel. These are but a few examples of the parameters that were put into place and the promises made regarding conformity to the Conceptual Plan. 7 5. Applicant Demeans the Conceptual Plan, But in Renton It Is Binding. Despite the legal requirements and publicly-stated commitments made regarding consistency with the Conceptual Plan, the Applicant seems to think little of the Council- approved plan. In previous pleadings the Applicant has argued that the Conceptual Plan is 'just" a concept that "can and has evolved," suggesting that it is not bound by the Conceptual Plan. 8 It is true that the Conceptual Plan may change over time, but it cannot "evolve" on its own; rather, the Development Agreement prescribes a process for such changes: "Modifications to an approved Conceptual Plan may be made after an administrative determination of the significance of the proposed modification." 6 See Memorandum from Alex Pietsch to Council President Don Persson, dated October 4, 2004, attached as Exhibit F to Third Buck Deel. 7 See also City of Renton Council Agenda Bill dated October 11, 2004, attached as Exhibit H to Third Buck Deel. ("This Conceptual Plan will serve as the basis for all future land use approvals related to this development"). 8 See excerpt from Applicant's Response to ASE Motion to Remand on Planned Action issue at 4, attached as Exhibit I to Third Buck Deel. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-8 :\WPIASE\SITE PLAN APPEAL\ASE REPLIES\0201 OJ-VERSION8.REMAND PLY.DOC BuckeiGordon LLP 2025 Fi~stAveni.,e, Suite 500 Seattle, Wi':.. 98121 "3140 (206) 382-9540 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 Development Agreement at § 3 .4. Minor modifications may be approved administratively, but City Council approval is required if the proposed modification "is inconsistent with the spirit and intent of the adopted Plan." Id. The Renton City Council has used this process twice to legally approve modifications that seem trivial compared to the deviations proposed by the Applicant. The Council approved a first amendment to the Conceptual Plan on October 18, 2004. See Exhibit E to Third Buck Deel. On March 3, 2006, the Council approved a second amendment. See Exhibit J to Third Buck Deel. These amendments did not de-designate Park Avenue as a pedestrian-oriented street or change any other elements of the Conceptual Plan from which the Site Plan for The Landing deviates. If the Applicant wants to de-designate Park Avenue or otherwise depart from the Conceptual Plan, it must use the amendment process prescribed in the Development Agreement. It cannot simply ignore the Conceptual Plan.9 9 The Site Plan is also inconsistent with the Conceptual Plan for reasons unrelated to pedestrian circulation. For example, it does not provide anywhere near the levels of employment promised in the approved Conceptual Plan. Center Oak's Conceptual Plan, reviewed by the City Council and designated as a Planned Action, estimated 2,646 direct jobs and 622 indirect jobs would be created by the development of the site. See "City of Renton Economic Benefits'" (in revised Conceptual Plan submittal materials), attached as Exhibit G to Third Buck Deel. The SEPA checklist submitted by the Applicant for The Landing estimates only 350 new employees would work on the site. This is facially inconsistent with the Conceptual Plan and with the City's Urban Center policies, which require 50 employees per gross acre. The employment rates projected for the site in the Conceptual Plan met the Urban Center criteria. The current proposal would average less than 8 employees per acre -significantly less than required on property designated as an Urban Center. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-9 ,\WP\ASE\SlTE PLAN APPEAL\ASE REPLIES\020l07-VERS10N8.REMAND EPLY.DOC Buck0Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 9812i-3140 (206) 382-9540 • 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 • 6. The City Council Re-Designated Park Avenue North as a Pedestrian-Oriented Street in 2005. The City Council re-confirmed the status of Park Avenue North as a pedestrian- oriented street when it approved the conceptual plan for Subdistrict I B, located on Boeing surplus property just south of The Landing site. On November 7, 2005, Alex Pietsch recommended approval of the conceptual plan with two conditions, including the following: "Park Avenue N. be designated as a pedestrian-oriented street.10 " On November 14, 2005, the City Council approved the conceptual plan for Subdistrict JB with two conditions, including the following: Park Ave. N. be designated as a "pedestrian-oriented street," to ensure an urban form of development and provide pedestrian linkages between the subdistrict and the planned retail/entertainment center expected to be developed to the north." Exhibit L to Third Buck Deel. ( emphasis added). 7. The Director's Decision Confirms that Park Avenue and 10th Avenue Are Pedestrian-Oriented Streets. The Director's Site Plan Decision confirms that both Park Avenue North and North IO'h Street are designated pedestrian-oriented streets: The full hierarchy of street types is provided either around the development or within the development. Logan Avenue North would be a high visibility street and is located on the north and west side of the project; Park Avenue N is an arterial and a pedestrian-oriented street (particularly along the northern portion of the project); N 101h Street is a pedestrian-oriented street. 10 See Renton City Council Minutes, November 7, 2005, at p. 380, attached as Exhibit K to Third Buck Deel. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-10 :\WP\ASE\SITE PLAN APPEAL\ASE REPL!ES1020107-VERS10N8.REMAND PLY.DOC Buck0 Gordon LLP 2025 First Avenue, Suite 50C.: Seattle, WA 98121-3140 (206) 382-%40 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 North IO'h Street and Park Avenue N are pedestrian-oriented streets. Site Plan Decision at 10 ( emphasis added). 11 Now the City in its legal filings asserts the opposite of what the Director determined in that decision. This retreat from the Site Plan Decision suggests the City has realized that the Site Plan is illegal. 8. The Applicant and the City Ignore the Conceptual Plan's Designation. The Applicant's and the City's reliance on the City's Arterial Street Plan (RMC 4- 2-080.E) is misplaced. The Arterial Street Plan appears to identify Park Avenue as a "principal arterial," but that notation has no bearing on whether Park Avenue is designated as a "pedestrian-oriented street" for purposes of the City's Urban Design Regulations, RMC 4-3-100. As discussed above, the Site Plan Decision itself confirms that Park Avenue North is both a pedestrian-oriented street and an arterial. In fact, the Arterial Street Plan does not identify any pedestrian-oriented streets. The Applicant's and the City's interpretation would render meaningless all references to such streets in the Urban Design Regulations. Local ordinances should be interpreted (a) in their entirety, reviewing all provisions in relation to each other; and (b) "to best advance" the municipality's legislative purpose. Eugster v. City of Spokane, 118 Wn.App. 383, 76 P.3d 741 (2003) (internal citations omitted); see also HJS Development, Inc. v. Pierce County, 148 Wn.2d 451, 61 P.3d 1141 (2003). The purpose of the City's decision 11 See also Boeing-Renton Sub-District lA Environmental Consistency Analysis prepared by Blumen Consulting Group, Inc., dated May 2006 (Exhibit 2 to the Administrative Master Site Plan Approval for The Landing), attached as Exhibit M to Third Buck Deel. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-11 :\ WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERS!ON8.REMAND PLY.DOC Buck~ Gordon LLP 2025 Firc,c Avem;e, Su;te 500 Seattle, WA 98121-3140 (206) 382-9540 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 prescribe development standards for pedestrian-oriented streets cannot be advanced by an interpretation that completely guts those standards. 9. The Decision Criteria For Site Plans Require the Designation of"Sufficient" Pedestrian-Oriented Streets. The City's and Applicant's position that there are no pedestrian-oriented street flies in the face ofRMC 4-9-200.E(J)(c), a review criterion applicable to site plans in the UC-Nl and UC-N2 zones only, which provides as follows: The proposed interconnected circulation network must demonstrate the function and location of required circulation elements required in RMC 4-3-100. Internal or local roads shall provide adequate edges and buffers to parking lots. A sufficient number of pedestrian-oriented streets are designated to implement the vision for each district in the Urban Center North Comprehensive Plan designation. This provision mandates the designation of"streets." Use of the plural implies that more than one street must be designated. To satisfy this criterion, at least two pedestrian- oriented streets must be designated in the Site Plan. Thus, the Site Plan's noncompliance is twofold: to the extent that fewer than two pedestrian-oriented streets are designated, it violates RMC 4-9-200.E(3)(c). On streets that have been so designated, the Site Plan fails to comply with the Urban Design Regulations (RMC 4-3-100). In either case, the Site Plan must be remanded. The Examiner reviews the Site Plan Decision for "substantial error(s) in fact or law." See RMC 4-8-l 10.C(3). These are errors of epic proportions, with far-reaching implications for the ultimate design of The Landing. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-12 :\WP\ASE\SJTE PLAN APPEAL\ASE REPLIES\020l07-VERSI0N8.REMAND PLY.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9Sao 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 10. The Site Plan Must be Remanded Even if There Are No Pedestrian-Oriented Streets. If Park Avenue is a designated pedestrian-oriented street, the Site Plan violates the Urban Design Regulations, RMC 4-3-100. If on the other hand, Park Avenue is not a pedestrian-oriented street, the Site Plan violates RMC 4-9-200.E(3)(a) because it is inconsistent with the Conceptual Plan (and the Development Agreement, which requires that certain streets be designated as "pedestrian-oriented") and RMC 4-9-200E(3)( d) which also requires pedestrian-oriented streets. There is simply no escaping the Site Plan's non-compliance with the Conceptual Plan and Development Agreement. B. The Stipulation Does Not Preclude Any Arguments in the Site Plan Appeal or Remand Motion, Both the City and the Applicant suggest that the Stipulation signed by the parties in December 2006 precludes the Examiner from considering code violations in Quadrant C of the Site Plan. 12 The City and Applicant propose an inaccurate reading of the Stipulation, suggesting it limits the arguments that Appellants may raise with respect to Quadrant C. That is not what the Stipulation intends or states in any provision. The Settlement Agreement and Stipulation were intended to protect the Vested Developments from the effect of a potential remand by providing vesting for building permits and other subsequent approvals. They were not intended to limit Appellants' arguments in the Site Plan Appeal. 12 City's Response to Appellants' Motion to Remand Site Plan Approval at 6 ("Therefore this point is not only irrelevant, but Appellants should not have raised the issue at all."); Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8 ("[A]s to those alleged violations within Quadrant C of The Landing ... the Examiner is unable to grant Appellants' requested relief, and such claims should be dismissed."). PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-13 :\WP\ASEISITE PLAN APPEAL\ASE REPLIES1020107-VERSION8.REMAND REPLY.DOC Buck 0 Gordon LLP 2025 First A'Je;1ue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 Settlement discussions regarding Quadrant C commenced when Target, which was seeking to move forward with its development, first learned of Appellants' appeals. At the outset of these discussions, the Applicant first suggested segmenting site plan review for The Landing and exempting portions of Quadrant C from the Site Plan Appeal. The parties could not agree to an approach for such segmentation, so the concept was dropped. Third Buck Deel. at ,r 2. 13 Instead, the parties adopted a "vesting" approach to protecting Target's development (hence, the "Vested Developments"). Appellants agreed they would not seek to invalidate necessary construction and occupancy permits for certain improvements within the portion of Quadrant C of most interest to Target. The parties agreed and stipulated that those developments were "vested" and could "proceed with the building permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of the above entitled causes." Stipulation, Exhibit N to Third Buck Deel. That was the protection for Target agreed to by all parties. The Settlement Agreement and Stipulation were drafted such that the entire Site Plan would be subjected to scrutiny under this appeal. It was agreed that if the plan were invalidated, then Appellants would limit the follow-up relief they sought. Third Buck Deel. at ,r 4. Thus, the Stipulation limits the effect of potential site plan invalidation, but not the arguments in this appeal. Appellants agreed they would not seek to invalidate building permits or other subsequent approvals for the Vested Developments if The Landing's Site 13 Applicant and the City apparently seek to achieve in their responses what they could not in settlement discussions. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-14 :\WP\ASEIS!TE PLAN APPEAL\ASE REPLIES1020107-VERSION8.REMAND EPLY.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattie, WA 98121-3140 (206) 382-9540 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 Plan is deemed invalid and remanded. They did not agree to restrict their arguments in these appeals. The City's assertion that Appellants "should not have raised" arguments relating to Quadrant C reflects a logical fallacy: "fallacy of the inverse." The Stipulation contains language that affirmatively protects the parties' "claims, defenses, or arguments in any current or future appeals of the remaining portions of The Landing Project." However, that does not mean that the inverse (i.e., that Appellants waive arguments in these appeals that pertain to the Vested Developments) is also true. Section 2 of the Stipulation provides a reservation of such arguments, not a waiver or release. It bears emphasis that Appellants' release of claims as to the Vested Developments in the Settlement Agreement (e.g., appeals of building permits issued for the Vested Developments) does not constitute a waiver of arguments. A careful reading of the Settlement Agreement and Stipulation reveals that no arguments are waived anywhere in either instrument.14 The Examiner has a duty under the law to review the Site Plan Appeal as a whole. The Stipulation does not relieve the Examiner of this legal duty. It would be presumptuous for any party to sign a Stipulation proposing to do so. It would be presumptuous of the parties to dictate to the Examiner such an artificial construct. The Examiner must carry out his lawful duties. Parties cannot direct him to conduct a hybrid proceeding for their particular benefit. That was not intended or agreed to. Finally, the City and the Applicant overstate the effect of the Stipulation. Even if the Examiner ignores all of Appellants' arguments that pertain to the Vested 14 A copy of the Settlement Agreement is attached as Exhibit 0. to Third Buck Deel. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-15 :\WPIASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERS10N8.REMAND PLY.DOC Buck@Gordon LLP 2025 First Avenue, Suite 500 Seattle, W1~ 98121-3140 (206) 382-9540 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 • Developments, glaring violations would remain in all but one of the Code Violation Exhibits A-H to Appellants' remand motion. The only alleged code violation that is limited to Quadrant C is a violation ofRMC 4-3-100.F(l)(b)(i) that requires parking on designated pedestrian-streets to be at the side and/or rear of a building.15 C. Appellants' Choice Not to Appeal the Infrastructure Approval Does Not Vitiate Any Part of these Appeals. The City asserts that Appellants are somehow precluded from identifying noncompliant driveways by their decision not to appeal an infrastructure decision relating to SEP A review for certain road and utility improvements paid for by the City for The Landing.16 This argument is absurd on its face, but Appellants will address it briefly. As with other arguments, the City cites no code, no statute, no case law, and no policy to support their position. The City's argument is based on the proposition that an appellant who does not file appeals during SEP A review is later precluding from asserting any legal arguments regarding the substance of a project. This proposition would lead to absurd consequences. For instance, under the City's proposed rule, an appellant who did not challenge the adequacy of the EIS for a coal-powered energy facility would be forever precluded from arguing that emission levels violated various standards. The City's position is contrary to land use law and common sense. In any event, the infrastructure approval, like the Master Plan Decision and the Site Plan Decision, must conform to the approved Conceptual Plan for The Landing. The infrastructure approval was made "in accordance with the Renton/Boeing Urban Center- North Development Agreement, dated December 1, 2003." See Exhibit P to Third Buck Deel. As discussed above, the Development Agreement and the Conceptual Plan impose "See Exhibit G to Appellants' Motion to Remand Site Plan Approval. 16 City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 6. PELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-16 :\ WP\ASE\SJTE PLAN APPEAL\ASE REPLIES\020107-VERSION8.REMAND PLY.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 • requirements relating to pedestrian-oriented streets. If the infrastructure approval is inconsistent with the Conceptual Plan, the City may choose to address that problem after the Site Plan Decision is remanded to the Director. D. The Site Plan's Violations of the Renton Code Cannot be Justified by a Fleeting Reference to "Modification" under RMC 4-9-250.D. The Applicant and the City argue that various violations ofRenton's Development Regulations cited by the Appellants were made legitimate by the Director's reference to modification of design regulations detailed in RMC 4-9-250.D and RMC 4-3-100.L in his Site Plan Approval.17 In fact, RMC 4-9-250.D(2) authorizes the Director to make modifications to Renton's development standards in very limited circumstances and under exacting requirements. When there are practical difficulties involved in carrying out the development standards, pursuant to RMC 4-9-250.D(2) allows the Director to: grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; 17 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 6; City's Response to Appellants' Motion to Remand Site Plan Approval at 9. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-17 :\WPIASE\SITE PLAN APPEALIASE REPLIES\020107-VERS!ON8.REMAND PLY.DOC Buck0 Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. Similarly, 4-3-100.L authorizes the Director to make modifications to Renton's Urban Design Regulations if, subject to RMC 4-9-250.D, supra, the project meets the following requirements: a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. Pursuant to RMC 4-9-250.D and RMC 4-3-100.L, the Director granted seven modifications to the Applicant in his Site Plan Approval.18 Only three are relevant to ASE's and Nicholson's site plan appeal and the violations cited in Appellants' remand motion: (I) parking between buildings and pedestrian-oriented streets;19 (2) surface 18 Director's Site Plan Approval at 22, § E(5). 19 Id. at 10. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-18 :\WPIASE\SITE PLAN APPEAL'-ASE REPLIES\020107-VERS10N8.REMAND PLY.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 parking in front ofbuildings;20 and (3) surface parking driveways on pedestrian-oriented streets. 21 The three relevant modifications are facially invalid because the Director failed to make the code-required findings necessary for such changes pursuant to RMC 4-9- 250.0(2) and RMC 4-3-100.L.22 The Director did not make any findings regarding adverse impacts on surrounding properties, and did not make findings that the proposed modifications are the minimum necessary; that the deviation manifests high quality design; that the modifications are justified and required for the use and situation intended; or that the modifications meet the appearance intended by the Renton Code. The deficiencies of the Director's modification findings are highlighted by contrasting the three relevant modification conclusions to his parking modification outlined on page 6 of The Landing's Site Plan Approval. Here, the Director addressed each of the 4-9-250.0(2) criteria point-by-point. In contrast, the Director's fleeting references to 4-9-250.D in discussion of parking and driveway modifications fails to meet the code standards for a valid modification. The Director has, as a matter oflaw, misinterpreted RMC 4-9-250.D. Each modification request by the Applicant needs to be taken on a case-by-case basis with findings made for each modification as opposed to a general belief about the entire Site Plan as a whole. 24 20 Id. at 12. 21 Id. at 12-13. 25 22 Id. at 10, 12-13. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-19 ,\WPIASEISITE PLAN APPEALIASE REPLIES1020107-VERSION8.REMAND EPLY.OOC Buck~ Gordon LLP 2025 First Avenue, Suite SOC Seattle, WA 98121-3140 (206) 382-9540 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 On its face, there is not a chance that decision criteria RMC 4-9-250.D(2)(a) and RMC 4-3-100.L can be met by The Landing. As is noted in Appellants' motion to remand, Renton's Comprehensive Plan intends a "new urbanism" type of design in UC-NI. The Director's modifications do not substantially implement the city's urbanism policy direction, but instead totally gut them. In the alternative, even if the validity of the Director's modifications is assumed, only three of the eight code violations cited by the Appellants are affected by the Director's use ofRMC 4-9-250.D and RMC 4-3-100.L. See Exhibits A, C, and G to Appellants' Motion to Remand Site Plan Approval. The Director's modifications do not excuse The Landing's remaining development standard violations. The provisions of the Urban Design Regulations (RMC 4-3-100) cited by Appellants are not mere guidelines, they are mandatory "minimum requirements." The language in RMC 4-3-100.A draws a clear distinction between the two: The purpose of this Section is to: ... 6. Establish two categories of regulations: (a) "minimum standards" that must be met, and (b) "guidelines" that, while not mandatory, are considered by the Development Services Director in determining if the proposed action meets the intent of the design guidelines. RMC 4-3-100.A (emphasis added). All of the provisions in RMC 4-3-100 cited by the Appellants are minimum standards and therefore must be met. The City Council went out of their way to stress the importance of the Urban Design Regulations in the UC-NI zone, where The Landing site is located. The following PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-20 c\WPIASE\SITE PLAN APPEALIASE REPLIES1020107-VERSION8.REMAND EPLY.DOC Buck~Gordon LLP 2025 First Avenue, S..iite 500 Seattle, WA 98121-3'140 (206) 382-9540 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 review criteria applies only to development in the UC-NI zone and four other zones in the City: 7. Review of Compliance to Design Guidelines for Development in CD, RM-U, RM-T, UC-Nl, and UC-N2 Zones: Development proposed in the zones where design guidelines are in effect must show how they comply with the intent and the mandatory elements of the design guidelines located in RMC 4-3-100. RMC 4-9-200.F(?). Clearly the Urban Design Regulations are not to be taken lightly, particularly, the UC-Nl zone. The City and Applicant continue to miss the obvious. Their remedy lies with modifications to the proposal and/or to amendments to the City's Comprehensive Plan and development regulations by the City Council -not reliance on improperly applied modification procedures by the Director. 23 E. Applicant's Defense for Ignoring Setback Requirements Rests on an Erroneous and Ultra Vires Interpretation. Appellants have moved for a remand based on the obvious setback violations contained within The Landing's Site Plan. On the face of the Director's Site Plan Approval it is apparent that Renton's code-required setbacks are not met. The City and Applicant defend the numerous setback violations by relying on the Director's Setback Decision.24 The facial invalidity of such reliance on an ultra vires 23 The Director's nonchalance about these and other regulations reflects a disturbing pattern of overreaching. According to the Director, he has the power to bypass SEP A review by designating a planned action, administratively amend the City's development regulations, and disregard other laws through the "modification" process. These are legislative activities reserved for the City Council. 24 See City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 8; Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 7. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-21 :\WPIASEISITE PLAN APPEALIASE REPLIES\020107-VERSIONS.REMAND PLY.DOC Buck 0 Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-954J 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 interpretation is fully discussed in Appellants' response motion dated January 26'h.25 Appellants' hereby incorporate by reference all arguments relating to the invalidity of the Director's Setback Decision contained in Section III.A of that certain response motion. Furthermore, even assuming that the Director's Setback Decision is valid, The Landing does not meet the criteria imposed by the Director for setback modifications in the UC-NI zone. The Setback Decision purports to authorize 5-foot maximum setbacks in that zone if the site plan meets the following criteria: a. Orients development to the pedestrian through such measures as providing pedestrian walkways beyond those required by the Renton Municipal Code (RMC), encouraging pedestrian amenities and supporting alternatives to single occupant vehicle (SOV) transportation; and b. Creates a low scale streetscape through such measures as fostering distinctive architecture and mitigating the visual dominance of extensive and unbroken parking along the street front; and c. Promotes safety and visibility through such measures as discouraging the creation of hidden spaces, minimizing conflict between pedestrian and traffic and ensuring adequate setbacks to accommodate required parking and/or access that could not be provided otherwise. Alternatively, the Reviewing Official may also modify the maximum setback requirement if the applicant can demonstrate that the preceding criteria cannot be met; however, those criteria which can be met shall be addressed in the site development plan; d. Due to factors including but not limited to the unique site design requirements or physical site constraints such as critical areas or utility easements the maximum setback cannot be met; or e. One or more of the above criteria would not be furthered or would be impaired by compliance with the maximum setback; or f. Any function of the use which serves the public health, safety or welfare would be materially impaired by the required setback. 25 See Appellants' Response to Motions to Dismiss Appeals of Interpretation/Policy Decision and Site Plan Decision at 3-12. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-22 ,IWPIASEISITE PLAN APPEAL\ASE REPLIES1020107-VERSION8.REMAND EPLY.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 3S2-9540 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 Setback Decision at 1. The Director relied on the Setback Decision to justify setback violations in the Site Plan but failed to address all but one of the decision criteria cited in the Setback Decision. The Director makes no findings regarding criteria (b) or (c), or the alternative criteria in (d) through (t).26 Nor could he, because the Site Plan for The Landing does the opposite of"mitigating the visual dominance of extensive and unbroken parking along the street front." Id. It also fails to create a "low scale streetscape" or minimize conflict between pedestrians and traffic. F. Loading Docks Must Always Be Screened in the UC-Nl Zone. The Applicant and the City argue that loading docks in UC-Nl zones are only required to be screened when adjacent to residentially-zoned lots.27 This argument presumes an exception that simply does not exist.28 In their motion to remand, ASE and Nicholson cite a site plan violation of the "Loading Docks" development standard, RMC 4-2-120.E on page 2 -130.3: "Parking, docking, and loading areas for truck traffic shall be off-street and screened from view of abutting public streets."29 See Exhibit Q-2 to Third Buck Deel. This standard contains no reference to RMC 4-4-095, which contains the adjacent to residential-zoning qualification. In fact, the "Loading Docks" Development Standard references RMC 4-4-080 and RMC 10-10-13 generally not RMC 26 Director's Site Plan Decision at 5. Without such findings, the Site Plan Decision is flawed and should be remanded for further proceedings that address all the criteria in the Setback Decision. 27 See Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 6; City ofRenton's Reponses to Appellants' Motion to Remand Site Plan Approval at 7. 28 See Director's Site Plan Decision at 5 ("The UC-NI zone requires that all setback areas from a public street be landscaped and that truck docking and loading areas be screened from public streets."). 29 Appellants' Motion to Remand Site Plan Approval at 4 and Exhibit G. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN AP PROV AL-23 :\WPIASEISITE PLAN APPEALIASE REPLIES\020107-VERS!ONS.REMAND PLY.DOC Buck QI Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4-4-095. Therefore, the Applicant and the City mis-cite "Screening" Development Regulation RMC 4-2-120.E on page 2 -130.2, as the source of The Landing site plan violation. See Exhibit Q-1 to Third Buck Deel. Secondly, the "Loading Docks" development standard cited by Appellants is more expansive and exacting than the standard cited by the Applicant and the City. The "Loading Docks" development standards includes parking and docking of trucks in addition to loading in its screening requirement;30 whereas the standard referenced by the Applicant and the City only cites loading.31 The Applicant and the City attempt to avoid scrutiny of the site plan under the "Loading Docks" development standard by directing the Hearing Examiner to a development standard purposefully unnoted by the Appellants. The Applicant and the City cannot avoid examination of the Site Plan's code violations by inventing exceptions to Renton's development standards. G. The Director's Site Plan Decision Violated the Letter of the Renton Comprehensive Plan. The City and Applicant both argue that the Hearing Examiner should not yet consider The Landing's facial inconsistencies with the Comprehensive Plan.32 The City and Applicant seek to avoid the obvious: the Site Plan on its face, without the need for facts or interpretation, violates the plain language of the Renton Comprehensive Plan. 30 See Exhibit Q-2 attached to Third Buck Deel. " See Exhibit Q-1 attached to Third Buck Deel. 32 City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 9; Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 7. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-24 :\WPIASE\SITE PLAN APPEALIASE REPLIES1020107-VERS!ON8.REMAND PLY.DOC Buck~ Gordon LLP 2025 First A•enue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 Neither the City's nor Applicant's response briefs has confronted the unique Renton code provision, which makes the Comprehensive Plan regulatory. See RMC 4-9- 200.E(l) ("The Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies."); see also RMC 4-2- 200.A. As pointed out in ASE's and Nicholson's motion to remand, one of the standards for a site plan approval is comprehensive compliance. See RMC 4-9-200.E(l)(a) supra. Both the City and Applicant argue that the Comprehensive Plan policies are somehow ambiguous and subject to multiple interpretations. Neither, however, confronts the simple, legal fact that the Comprehensive Plan calls for urban developments that provide 50 employees per acre. See City of Renton Comprehensive Plan, Policy LU-271 ("Support uses that sustain minimum Urban Center employment levels of 50 employees per gross acre ... "). There is nothing ambiguous or nebulous about this decision criterion for site plans.33 Fifty is 2 x 25. In French it is "cinquante." In German it is "fiinfzig." The dictionary definition is "five times ten as an abstract number."34 It is not ambiguous. Similarly, neither the City or Applicant cites Policy LU-288: "Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District." LU-288 needs no interpretation. The Landing Site Plan fails to orient many of its proposed buildings to streets. See Exhibit D of Appellants' Motion to Remand Site Plan Approval. The Landing also does not deemphasize automobile use; one only has to look at the Site Plan's giant surface parking lots to reach 33 Both the City and Applicant would like to claim LU-271 is ambiguous because The Landing, as proposed in its site plan, accommodates only approximately 8 employees per gross acre. 34 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 944 (1993). PELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-25 :\ WPIASEISITE PLAN APPEALIASE REPLIES'.020107-VERSJON8.REMAND PLY.DOC Buck0Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 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 that conclusion. Again, there is nothing uncertain about this Comprehensive Plan site plan criteria and The Landing obviously fails to meet the land use policy. The City and Applicant are not the only two parties that ignore the inconsistencies between the Site Plan and Renton's Comprehensive Plan. The Director's Site Plan Decision also failed to adequately assess The Landing's conformity to the Comprehensive Plan. The Director failed to address six of the seven land use policies noted by ASE and Nicholson in their motion to remand.35 The Site Plan Decision appears to pick and choose the land use policies it wants to highlight without citing any authority for only requiring compliance with a subset of the Comprehensive Plan's criteria. The evidence shows this is simply not the type of development authorized by the Renton Code through its incorporation of such unambiguous Comprehensive Plan requirements. The Landing is far less urban than the design of the conceptual plan that was promised to Renton and its citizens. The City and Applicant appear to acknowledge and admit the obvious: The Landing Site Plan does not even come close to meeting the regulatory Comprehensive Plan provisions. Both parties suggest, however, that realization of the Comprehensive Plan's policies will occur sometime in the future.36 Neither the City nor Applicant cite any provision in the Zoning Code or Comprehensive Plan that authorizes delayed achievement of new urbanism or planning goals or supports their proposition. 35 The Director cited Policy LU-265 but ignored Policies LU-267, LU-269, LU-287, LU-288, LU-266, and LU-271. See Director's Site Plan Approval at 3. 30 See City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 10; Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-26 :\WPIASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND PLY.DOC Buck@Gordon LLP 2025 Fir~tAvenue, Suite 500 Seattle, WA 98121·3140 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Both parties also suggest that build-out or in-fill may occur in the future thereby satisfying Renton's Comprehensive Plan policies and goals in the long-term. The Landing site plan, however, makes no provision for future in-fill.37 It is within the City Council's power to amend the Renton Comprehensive Plan and the development regulations. It is not within the power of either party to simply ignore the Comprehensive Plan as currently written and adopted or to attempt to undertake a strained interpretation of new urbanism or the policies and goals outlined in the Comprehensive Plan and development regulations. H. A Public Hearing is Necessary to Effectuate the Intent of RMC 4-9-200.D. Applicant and the City argue that a public hearing was not required for the approval of The Landing's Site Plan based on 4-9-200.D(l)(a): "Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing" (emphasis added).38 Any reliance by the Applicant on this public hearing exception for certain Site Plans is misplaced. Statutory rules of interpretation dictate that RMC 4-9-200.D(l)(a)'s exception only apply to Site Plans submitted based on Master Plans approved pursuant to a public hearing before the Hearing Examiner. Generally, ordinances are interpreted: (a) in their entirety, reviewing all provisions in relation to each other; and (b) to best advance and effectuate the municipality's legislative purpose. See HJS Development, Inc. v. Pierce County, 148 37 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8. 38 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8; City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 4. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-27 :IWP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND PLY.DOC Buck@GordonLLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 i206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Wn.2d 451, 61 P.3d 1141 (2003); Eugster v. City ofSpokane, 118 Wn.App. 383, 76 P.3d 741 (2003). The City's Zoning Code intends one public hearing for all development projects with limited exceptions. See RMC 4-9-200.D(l)(b) (exception for planned actions). RMC 4-9-200.D presupposes the occurrence of at least one public hearing before the Hearing Examiner during the Site Development Plan Review process for projects occurring within UC-NI and UC-N2 zones. RMC 4-9-200.D(!) mandates that all Master Plans proposed or required per RMC 4-9-200.B (which includes all developments within the UC-N Zones) submit to a public hearing prior to approval. The section then goes on to exempt from the hearing requirement Site Plans submitted subsequent to approved Master Plans. Because approval by definition includes a public hearing for UC-N Zones, the RMC 4-9- 200.D() )(a) exception was merely intended to prevent multiple public hearings and exempt Site Plans where such procedural requirement had already been met. Here, The Landing's Master Plan was not subject to a public hearing before the Hearing Examiner. Therefore, it would defeat both the municipality's legislative purpose, and the rules of statutory interpretation, to authorize approval of The Landing's Site Plan without the code-required public hearing. Read in context, it is clear that RMC 4-9-200.D was intended to ensure that at least one public hearing is held at a time when the proposal is sufficiently detailed to inform the public. "In all cases, the public hearing for Master Plan or Site Plan Review should be conducted concurrently with any other required hearing, such as rezone or subdivision, if PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-28 c\WP\ASE\S!TE PLAN APPEALIASE REPLIES\020107-VERS!ONS.REMAND EPLY.DOC Buck 0 Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 l206) 382-9540 • 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 details of the development are sufficiently defined to permit adequate review." RMC 4-9-200.D. There was no public hearing during Master Plan review for The Landing. The Applicant claimed an exemption from the public hearing requirement under RMC 4-9- 200.D(l )(b ). 39 Now the Applicant has claimed another exemption, and again the City agreed. As a result, the public has never had a chance to review details such as the proposed parking areas, setbacks, and other auto-oriented elements of the Site Plan. The Landing is precisely the type oflarge-scale project which merits a public hearing at the Master Plan or Site Plan stage, rather than at a stage of plarming so conceptual that it tells the public nothing about the project that will eventually be proposed and built. The Applicant and City do not deny that The Landing exceeds the thresholds for "Large Project Scale" in RMC 4-9-200.D(2)(b ), which trigger the requirement of a public hearing. At a minimum, it appears that the Environmental Review Committee (ERC) should have had the opportunity to determine whether, "based on departmental comments or public input there are significant unresolved concerns that are raised by the proposal" RMC 4-9-200.D(2)(a). 39 The City concurred, despite the fact that at least one of the two criteria for exemption was not met: The environmental impact statement for the planned action reviewed preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements. RMC 4-9-200.D(l)(b)(ii). PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-29 ,\WP\ASEISITE PLAN APPEALIASE REPLIES\020107-VERSIONS.REMAND EPLY.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 9812'-3140 (206) 382-9540 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 I. Appellants' Substantive Arguments Are a Normal Part of Contested Case Proceedings. Applicant and the City, in their continued search for delay, argue that since the remand motion is "substantive" it should be reserved for a hearing and cannot be the basis for granting Appellants' requested relief.40 Neither party has cited any code, statute, or case law as authority for its proposition. Applicant and the City have also failed to cite any policy arguments. Both the Applicant and the City do not actually state that the arguments cannot be heard at this point. Instead, Applicant writes, "Such arguments should therefore be reserved ... "41 And the City argues: "These arguments ... are most appropriately addressed in a factual hearing."42 There obviously is no regulation, statute, or case law precluding consideration of this matter at the prehearing stage. Substantive motions are heard in every administrative and judicial proceeding in Washington State. Although both Applicant and the City fail to note any policy arguments in favor of delay, ASE and Nicholson will note the most obvious policy argument in support of their motion to remand: there will be an end to delay, which does not serve anyone well and is a poor reflection on the Renton hearing examiner process. This appeal was filed on August 31, 2006. Six months have passed without a hearing, even on motions. The time has come to resolve this matter. 40 See Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 4; City ofRenton's Reponses to Appellants' Motion to Remand Site Plan Approval at 2. 41 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 4 (emphasis added). 42 City ofRenton's Response to Appellant's Motion to Remand Site Plan Approval at 2 (emphasis added). PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-30 :\WPIASE\SJTE PLAN APPEAL\ASE REPUES\020107-VERSJONS.REMAND EPLY.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 332-9540 • ' 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 A second policy reason for prehearing motion relief is to avoid the cost of preparing for a hearing. It is common in adjudicatory forums to resolve easy matters at the motion stage. Hearings are typically resolved for situations where witnesses are required. Most hearing examiners and judges see the wisdom in deciding obvious matters without the necessity of parties having hearings. In this case, there is simply no factual dispute as to the key definitions. Appellants' request for relief is based on the Site Plan Approval, other unambiguous public documents, and Renton's laws, which are easily ascertainable. Applicant and the City have not suggested that there is any confusion over what the laws are of the City of Renton. It has not been suggested that there is any confusion over what constitutes the Site Plan Decision. Further, Applicant and the City seek to impose a limitation on motions that was not addressed by the Pre-Hearing Conference on October 17, 2006. The Hearing Examiner's prehearing scheduling letter states that "[ a ]11 motions are to be filed" by January 12, 2007. See Letter from Nancy Thompson, Secretary to the Hearing Examiner, dated November 7, 2006, attached as Exhibit R to Third Buck Deel. Therefore, the Examiner did not limit motions to jurisdictional or legal issues. Applicant and the City cannot unilaterally restrict the scope of motions. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-31 :\WPIASE\SITE PLAN APPEALIASE REPLIES\020107-VERS!ONS.REMAND EPLY.DOC Bucke Gordon LLP 2025 F:rst Avenue, Suit'-" 500 Seattle, WA 98121-3140 (206) 382-9540 • 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 J. Municipal Liability for Failure to Enforce Zoning Code Violations is Relevant to the Outcome of this Case. The Applicant argues that the Wal-Mart Decision is "completely irrelevant."43 While the issue of the City's potential liability may not seem relevant to the Applicant, it is highly relevant to the Examiner's decision. Perhaps the Applicant considers municipal liability irrelevant because it is truly unconcerned about the outcome of these appeals. If municipal liability arises from these appeals, the Applicant will be the party collecting the City's money. For the City, the stakes are much higher. Appellants asserted two points. First, the law in this state is settled: even if illegal structures have already been built, municipalities' development regulations must be enforced and structures sometimes abated. Second, a city that participates in zoning illegalities by refusing to enforce its development regulations is potentially liable to an innocent landowner.44 These points are not contested by the Applicant or the City.45 Appellants' arguments regarding municipal liability are indeed cautionary, but the accusation of "scare tactics" makes no sense. The City would not be liable to the Appellants, and Appellants have no plans to assist the Applicant if it decides to sue the City. For its part, the Applicant apparently sees this as a no-lose situation: if a court 43 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8. 44 See Radach v. Gunderson, 39 Wn.App. 392,695 P.2d 128 (1985); Haslund v. City of Seattle, 86 Wn.2d 607,547 P.2d 1221 (1976). 45 By failing offer any response to the cases cited by Appellants, the Applicant and the City concede that abatement is a potential remedy and that municipalities may be liable to innocent landowners for failure to enforce zoning violations. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-32 :\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERS10N8.REMAND PLY.DOC Buck0Gordon LLP 2025 Firs! Avenue, Suite 500 Seattle, WA 9812'1·3140 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recognizes The Landing's illegalities after it is built, the City will pay the tab.46 It should be noted that the City's issuance of building permits while these appeals are pending constitutes an immediate and ongoing procedural violation, regardless of the eventual outcome of these appeals. See RMC 4-9-200.K ("Building permits shall not be issued until the appeal period for an approved site development plan has expired"). In any event, the Appellants' argument regarding municipal liability was directed to the Hearing Examiner, not the Applicant. The Applicant is attempting to steer the Examiner down a dangerous path of delay and refusal to face legal defects that could become a major problem and a huge liability for the City. It is the City that stands to lose. That legal and practical fact is indeed relevant to the need for the Examiner to decide this case on the legal merits. The relevance of this point is further highlighted by the disintegration of a community when its officials fail to require compliance with the law. This is shown by the latest series of articles from the Wal-Mart fall out. See Exhibit S to Buck Third Deel. III. CONCLUSION This should not be a difficult decision for the Hearing Examiner. If the Examiner agrees with even one of the violations identified by Appellants, the Site Plan Decision can be remanded for further proceedings. It will then be up to the Applicant and the Director to determine what actions should be taken to achieve compliance with the law. 46 Technically, taxpayers like Brad Nicholson and other ASE members would pay the tab. Counsel for the City has complained of the costs associated with these appeals but chooses to ignore the costs of pennitting an illegal structure that either will be found illegal and possibly torn down or, if allowed to stand, will result in fewer jobs and lower-quality development that what was promised to the City Council and the people of Renton. PPELLANTS' REPLY BRIEF RE: MOTION TO EMANO SITE PLAN APPROVAL-33 :\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020l07,VERSI0N8.REMAND EPLY.DOC Buck0Gordon LLP 2025 First Avenue, Suite SCO Seattle, WA 98121-3140 (206) 382-9540 ' • 1 2 3 4 5 6 7 8 9 10 1 l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the reasons stated above, the Site Plan Decision should be remanded to the Director for further proceedings consistent with the RMC and state law Dated this 2 £'.\iay of February, 2007. PPELLANTS' REPLY BRIEF RE: MOTION TO EMAND SITE PLAN APPROVAL-34 :\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERSIONS.REMAND PLY.DOC Buck 0 Gordon LLP 2025 First Aver,uc, Suite 500 Seattle, WA 98121-3140 (206; 332-9540 .. I 2 3 4 5 6 7 8 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for the South End (ASE) and Brad 9 Nicholson re: ) ) ) ) ) ) ) ) ) ) ) No. LUA-06-071, SA-A THIRD DECLARATION OF PETER BUCK 10 The Director's Administrative Plan Approval 11 And 12 The Director's Administrative Interpretation/ Policy Decision 13 14 15 16 17 18 19 20 21 22 23 24 _______________ ) I, PETER BUCK, do hereby declare: 1. 2. All of the following is based upon my personal knowledge. Settlement discussions between ASE, Nicholson, Target, and Harvest regarding The Landing's Quadrant C commenced after Target, which was seeking to move forward with its development, learned of ASE's and Nicholson's appeals from the media. 3. At the beginning of settlement discussions, Harvest suggested segmenting The Landing site plan review and exempting portions of Quadrant C from ASE's and Nicholson's Site Plan Appeal. The parties could not conceptualize a segmentation approach that made sense from a legal or planning standpoint, so the concept was dropped. 4. Instead of segmentation, the parties adopted a "vesting" approach to 2 5 protecting Target's development. ASE and Nicholson agreed they would not seek to THIRD DECLARATION OF PETER BUCK-I Y:IWP°'ASEISJTE PL.\N APPEAL1ASE REPUES\020207.THJRD DECLARATION OF' PLB.DOC Buck@Gordon LLP 2025 First Avenue, Suite SOD Seattle, WA 98121-314C (206) 382-9$40 ORIGINAL I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 invalidate necessary construction and occupancy permits for certain improvements within the portion of Quadrant C Target was most interested in. The parties agreed and stipulated that those developments were vested and could proceed with the building permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of the Site Plan Appeal. That was the protection for Target agreed to by all parties. 5. The Settlement Agreement dated December 11, 2006, and Stipulation signed by the Hearing Examiner on January 18, 2007, were drafted such that the entire Site Plan would be subjected to scrutiny under ASE's and Nicholson's appeal. It was agreed that if the plan were invalidated, then ASE and Nicholson would not seek to prevent construction of the vested developments. 6. Attached hereto as Exhibit A is a true and accurate copy of page IX-8 of the Glossary of the City of Renton Comprehensive Plan. 7. Attached hereto as Exhibit Bis a true and accurate copy of the Development Agreement (without exhibits). 8. Attached hereto as Exhibit C is a true and accurate copy of the Conceptual Plan (without exhibits). 9. Attached hereto as Exhibit D is a true and accurate copy of an excerpt from Harvest's Site Plan Review Submittal dated May 22, 2006. 10. Attached hereto as Exhibit Eis a true and accurate copy of the Renton City Council Minutes, October 18, 2004, and attached Committee of the Whole report recommending adoption of the Conceptual Plan and stamped "Approved by City Council" on October 18, 2004. 11. Attached hereto as Exhibit Fis a true and accurate copy of the Memorandum from Alex Pietsch to Council President Don Persson, dated October 4, 2004. 12. Attached hereto as Exhibit G is a true and accurate copy of the Memorandum from Alex Pietsch to Council President Don Persson, dated October 14, 2004, and attached Revised Conceptual Plan Submittal. THIRD DECLARATION OF PETER BUCK-2 Y:IWP'ASEISITE PLA'I APPEAL'ASE REPL!ES\020207.THJRD DECLARATlON OFPLB.DOC Buck (!}I Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 93121-3140 (206) 382-9540 I 2 3 4 5 6 7 8 13. Attached hereto as Exhibit H is a true and accurate copy of the Renton City Council Minutes, October 11, 2004, at p. 348 and attached City of Renton Council Agenda Bill dated October 11, 2004. 14. Attached hereto as Exhibit I is a true and accurate copy of page 4 of Applicant's Response to ASE Motion to Remand on Planned Action issue. 15. Attached hereto as Exhibit J is a true and accurate copy of the Second Amendment to the City ofRenton's Conceptual Plan for Subdistrict IA of Urban Center North, District One. 16. Attached hereto as Exhibit K is a true and accurate copy of the Renton City 9 Council Minutes, November 7, 2005, at p. 380. 10 11 12 13 14 17. Attached hereto as Exhibit Lis a true and accurate copy of the Renton City Council Minutes, November 14, 2005, at p. 398. 18. Attached hereto as Exhibit M is a true and accurate copy of page 2-15 of the Boeing-Renton Sub-District IA Environmental Consistency Analysis prepared by Blumen Consulting Group, Inc., dated May 2006. 19. Attached hereto as Exhibit N is a true and accurate copy of that certain J 5 Stipulation and Order dated January 18, 2007. 16 17 18 19 20. Attached hereto as Exhibit O is a true and accurate copy of that certain Settlement Agreement dated December 11, 2006. 21. Attached hereto as Exhibit P is a true and accurate copy of page one of the City of Renton Infrastructure Approval dated May 19, 2006. 22. Attached hereto as Exhibit Q is a true and accurate copy of pages 2-130.2 20 and 2-130.3 of Renton Municipal Code 4-2-120.E. 21 22 23 24 25 23. Attached hereto as Exhibit Risa true and accurate copy of the letter from Nancy Thompson, Secretary to the Hearing Examiner, dated November 7, 2006. 24. Attached hereto as Exhibit Sare true and accurate copies of two newspaper articles:(!) K.C. Mehaffey, "New group looks to keep Chelan Wal-Mart open," THE WENATCHEE WORLD (Jan. 31, 2007); and (2) K.C. Mehaffey, "Wal-Mart foes say-Show THIRD DECLARATION OF PETER BUCK-3 Y·IWP\ASE\SrTE PLAN APPEAJ.\ASF. REPUFS,020207.THTRD DECLARATION OF PLB.DOC Buck0Gordon LLP 2025 First Avenue, Suite 500 Seatfe, WA 98121-3140 (206) 382-9540 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 us the money: Superstore should pay for community center, pool ... or close, Chelan group says," THE WENATCHEE WORLD (Feb. 1, 2007). I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. Executed at Seattle, Washington this ~ \day of February, 2007. Peter Buck Buck0Gordon LLP THIRD DECLARATION OF PETER BUCK-4 Y:\WP\ASE\S!TE PLAN APPEAL\ASF. REPLIES\020207 THIRD DEC.LARA TIO:-. OF PLB.DOC 2025 First Avenue, Suice 500 Seattle, WA 9812'.-3140 (206) 382-9540 • 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 26 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) re: The Director's Administrative Decision Designating The Landing Master Plan Application a Planned Action The Director's Master Site Plan Approval ) ) ) ) ) ) ) ) ) ________________ ) Alliance for South End (ASE) and Brad Nicholson re: ) ) ) ) The Director's Administrative Site Plan Approval) and Interpretation/Policy Decision ) _________________ ) NO. LUA-06-071, SA-A CERTIFICATE OF SERVICE I hereby certify that, on February 2, 2007, I served the foregoing APPELLANTS' REPLY BRIEF REGARDING MOTION TO REMAND SITE PLAN APPROVAL, APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING, THIRD DECLARATION OF PETER BUCK and this CERTIFICATE OF SERVICE by hand delivery to: Mr. Fred Kaufinan Hearing Examiner City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 D D !ill D Via Facsimile Via Email Via Hand Delivery Via U.S. Mail CERTIFICATE OF SERVICE -I Mr. Jerome Hillis Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D D liil D Via Facsimile Via Email Via Hand Delivery Via U.S. Mail Buck@>Gordon LLP Y:\WP\ASE\SITE PLAN APPEAL\CERTIFICATE OF SERVICE.2007.DOC 2025 First Avenue, Suite 500 Seattle, WA 98121 ORIGINAL (206) 382"9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Ms. Ryan Durkan Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D Via Facsimile D Via Email .~ Via Hand Delivery D Via U.S. Mail Ms. Zanetta Fontes Renton City Attorney Warren, Barber, & Fontes I 00 S. Second Street Renton, WA 98057 D Via Facsimile D Via Email ~ Via Hand Delivery D Via U.S. Mail Mr. Lawrence J. Warren Renton City Attorney Warren, Barber, & Fontes 100 S. Second Street Renton, WA 98057 D Via Facsimile D Via Email ~ Via Hand Delivery tJ Via U.S. Mail Subscribed to under penalty of perjury under the laws of the State of Washington this 2nd day of February, 2007 in Seattle, Washington. CERTIFICATE OF SERVICE -2 Y:\WP\ASE\SITE PLAN APPEAL\CERTJFICATE OF SERVICE.2007.DOC Lynrie M. Overlie Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Interpretation/Policy Decision; and ) ) ) ) ) ) ) ) ) ) ) LUA-05-136, SA-A, SM APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING The Director's Administrative Site Plan Approval _______________ ) I. INTRODUCTION Appellants file this reply brief in support of their Motion for Declaratory Ruling Regarding Standing. 1 The Applicant and the City fixate on the word "declaratory," arguing that the Hearing Examiner has no authority to issue such a ruling on standing. This is much ado about nothing. Appellants have simply requested a ruling on standing in their favor, just as the Applicant and the City have requested such a ruling. The Examiner has previously issued a ruling on standing. It makes no difference whether the ruling is "declaratory" or not. The Examiner's jurisdiction over this motion is a non-issue. 1 In further support of this motion, the facts, authorities and arguments contained in Appellants· Response to Applicant's Motion to Dismiss are incorporated herein by this reference. APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING-1 Y:IWP\ASE\S!TE PLAN APPEALIASE REPL!ES1020!07-VERSION2.STANOING REPLY.DOC OR\G\NAL Buck~Gordon LLP 2025 ;:i,st Avenue, Suite 500 Seatt!e, WA 98121 (206) 382-9540 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 Turning to the substance of this motion, it is now without question that both Brad Nicholson and Alliance for South End (ASE) have standing to maintain these appeals. Nicholson and other ASE members, due to their particular interest in The Landing and their proximity to its impacts, are uniquely injured by the City's and Applicant's violations of the law. Moreover, because ASE's members control the direction of the corporation by electing and consulting with their leaders (as required by ASE's Amended Bylaws), there can be no doubt that the members are "driving the car." The Hearing Examiner should issue a ruling confirming that Nicholson and ASE have standing so that the merits of these appeals may be addressed. II. ARGUMENT A. The Hearing Examiner Has Jurisdiction to Issue a Ruling on Standing. The RMC provides the Examiner with broad authority to hear and decide appeals. It does not tell the Examiner how to do so. It provides: Unless otherwise specified, any decision of the Environmental Review Committee or the Planning/Building/Public Works Administrator or his or her designee in the administration of this Title shall be appealable to the Hearing Examiner as an administrative determination pursuant to RMC 4-8-11 OE, Appeals to Examiner of Administrative Decisions and Environmental Determinations. RMC 4-8-070.H(4). Implicit in this authority is the Examiner's ability to take actions necessary or helpful to hearing and deciding appeals. For example, the RMC does not explicitly authorize the Examiner to conduct any µrehearing procedures such as issuing scheduling APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON ST ANDING-2 Y:\WPIASE•SITE PLAN APPEALIASE REPLIES\020107-VERSION2.STAND1NG REPLY.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 !206) 382-9540 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 • orders, accepting motions, or hearing oral argument on motions, but that authority is implicit in the RMC. Similarly, the RMC does not authorize the Examiner to issue rulings on jurisdiction or other prehearing issues, but that authority is also implied. There is always inherent authority to conduct prehearing matters in contested case administrative hearings. The Applicant and the City argue that the Examiner may not issue a "declaratory judgment," but that is not what Appellants requested. The motion was for a declaratory ruling. If the Examiner feels uncomfortable with a "declaratory ruling," it could be called a "ruling" or anything else -or, the Examiner could simply deny the Applicant's standing . 2 mot10n. To extent the Examiner has authority to issue any ruling on standing, any party may request such a ruling. Applicant and City have offered no authority or rationale for why they should be allowed to request a ruling on standing but Appellants should not. Such a rule would on its face seem to violate due process. Applicant and City complain that they should be given the "last word" on standing and that Appellants' motion is "unnecessary" but provide no support for these assertions. Why shouldn't Appellants get the last word on standing (particularly if, as the Applicant argues, Appellants bear the burden on standing)?3 Why shouldn't the Applicant's motion on standing be deemed 2 In no event should the Examiner "strike" or otherwise disregard any pleadings filed by Appellants. The City makes fleeting references to striking Appellants' pleadings but has not filed any motions to strike. It would be extremely prejudicial to Appellants if any of their pleadings were stricken without the opportunity to respond to a fonnal motion. 3 Appellants do not concede this issue. APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING-3 V\WPIASEISITE PLAN APPEAL\ASE REPLIES\020107-VERSION2.STANDING REPLY.DOC Buck (!!l Gordon LLP 2025 First Aver1-1e, Suite 500 Seattle, W/-1 981?.1 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "unnecessary" (when both motions were filed on the same day)? Applicant and the City provide no answers to these obvious questions. B. The Examiner Should Rule that Nicholson Has Standing. The Applicant's attempts to deny Nicholson's standing must fail. If Brad Nicholson does not have standing to bring these appeals, then no one does. The Examiner should reject such an absurd result. l. Nicholson's Harms Arise Directly from the Director's Site Plan Decision and Setback Decision. The Applicant's repeated argument that "Nicholson is not damaged by the Site Plan Approval" is absolutely without merit.4 Nicholson alleges existing as well as likely future injuries from the procedural and substantive deficiencies in the Site Plan Decision and Setback Decision. These allegations are more than sufiicient to establish standing as to both of these decisions. An express purpose of the Site Plan review process "to ensure quality development consistent with City goals and policies." RMC 4-9-200.A(2) ( emphasis added). That is precisely what Nicholson is seeking to do. If The Landing is built without pedestrian-oriented streets, or if it is built with illegal setbacks or other suburban-style features, he will suffer numerous harms as a lifelong resident of Renton. Eventually, the Applicant will go back to Dallas. Brad Nicholson will still be here, suffering the consequences of these illegalities as a landowner, taxpayer, commuter, husband, father, fisherman, and engaged citizen of Renton. 4 See Applicant's Response to Appellants' Motion for Declaratory Ruling Regarding Standing at 6. APPELLANTS' REPL y BRIEF REGARDING MOTION Buckt:> Gordon LLP FOR RULING ON STANDING-4 2025 FicstAsem,e, Saite 500 Y:\ WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020107-VERS10N2.ST ANDING REPLY.DOC Seattle, WA 98121 (206) 382-9540 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 2. Nicholson's Injuries Are Not "Generalized." The Applicant's arguments suggest that where a project causes widespread harm injuring a large group of people, no one has standing because the harm is "'generalized." Such a rule would insulate the most harmful projects from any review. That is not the law in Renton, in Washington, or in any other state. Courts have rejected the notion that injuries affecting large segments of the population are automatically insufficient to establish standing. [T]he fact that particular environmental interests are shared by the many rather than the fow does not make them less deserving of legal protection through the judicial process. But the 'injury in fact' test requires more than an injury to a cognizable interest. It.requires that the party seeking review be himself among the injured. Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361 (1972). The Court also noted with approval "[t]he trend of cases ... toward discarding the notion that an injury that is widely shared is ipso facto not an injury sufficient to provide the basis for judicial review." Id. at 738. Later cases have followed Sierra Club v. Morton in holding that the fact that an injury is shared by many people in the population at large does not mean that a person lacks standing -as long as the person is "among the injured," however numerous they might be. See Ritchie v. Simpson, 170 F.3d 1092, 1096-97 (Fed. Cir. 1999) (fact that alleged injury was shared by general public did not preclude standing); Fitzgerald v. Baxter State Park Authority, 385 A.2d 189, 196-97 (Maine 1978) (any citizen of Maine who used state park showed injury sufficient for standing in challenge to park authority's actions). APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON ST ANDING-5 Y:\WP\ASE\SITE PLAN APPEAL\ASE REPLIES\020l07-VERS10N2.STANDING REPLY.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattie, \NA 98':21 (206) 382-9540 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 Here Appellants have shown that Nicholson is "among the injured" by the City's improper processing of The Landing and the immediate and long-term impacts from The Landing. The suggestion that Nicholson does not have standing to seek redress for his injuries because other people would also have standing is a total distortion of the law that the Examiner should reject. The Applicant concedes that Nicholson commutes through The Landing site, but argues that the Site Plan Decision will have no impact on traffic in Renton. The Applicant overlooks the fact that the Site Plan review criteria anticipate examination of a broad range of issues including impacts to traffic and pedestrian circulation. See, e.g., RMC 4-9- 200.E. l ( c) ("Mitigation of impacts to surrounding properties and uses"); RMC 4-9- 200.E.l(f) ("Safety and efficiency of vehicle and pedestrian circulation"); RMC 4-9- 200.E.I (h) ("Mitigation of noise, odors and other hannful or unhealthy conditions"); RMC 4-9-200.E.1 (i) ("Availability of public services and facilities to accommodate the proposed use"); RMC 4-9-200.E.2(h) ("Public and/or private streets are arranged in a layout that provides reasonable access to property and supports the land use envisioned"); RMC 4-9-200.E.2(i) ("The plan accommodates and promotes transit, pedestrian, and other alternative modes of transportation"). Clearly the City Council intended consideration of all impacts alleged by Nicholson during site plan review. In particular, RMC 4-9-200.E(3)( c) provides as follows: The proposed interconnected circulation network must demonstrate the function and location ofrequired circulation elements required in RMC 4-3-100. Internal or local roads shall provide adequate edges and buffers to parking lots. A sufficient number of pedestrian-oriented streets are designated to implement the vision for each district in the Urban Center North Comprehensive Plan designation. APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING-6 Y:\WPIASE\SITE PLAN APPEAL\ASE REPLIES\020IOJ-VERSl0N2.STAND1NG REPLY.DOC Buck~GordonLLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 1 This provision mandates the designation of "pedestrian-oriented streets." Nicholson, who 2 will doubtless use any such pedestrian-oriented streets in his daily affairs, must be given 3 standing to protect his interests in efficient circulation of cars and people, new urbanist 4 design, and other impacts to his community. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 C. The Examiner Should Rule that ASE Has Standing. 1. ASE's Amended Bylaws Provide Members Virtually Absolute Control Over the Direction of the Corporation. ASE's members now control the leadership, structure, and very existence of the corporation. The Applicant conveniently ignores the expansive voting rights granted to members in the Amended Bylaws. These voting rights allow members to control: • ASE's direction, by electing or removing directors ("at any time with or without cause or notice")/ • Its corporate structure, by voting on amendments to Bylaws and Articles of incorporation; 6 • Its continued existence or dissolution, by voting on mergers and dissolutions; 7 and • "Any other matters that may properly be presented to the Members for a vote, pursuant to the corporation's Articles oflncorporation, Bylaws, or action of the board of directors, or by operation oflaw." 8 The broad scope of these powers satisfies even the Applicant's test for associational standing (which is not supported by the law). The Applicant suggests that courts' analysis of associational standing "often turns upon whether the individuals 5 Amended Bylaws, Section 1.2(a)-(c), attached as Exhibit X to Nicholson Deel. (filed with Appellants' Motion for Declaratory Ruling Regarding Standing). 6 Id., Section 1.2(d)-(e) 7 Id., Section l.2(1)-(i) 25 8 Id., Section l.2(j). APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING-7 Y:\WPIASEISITE PLAN APPEAL\ASE REPL1ES\020107-VERS10N2.STANDING REPLY.DOC Buck~,Gordon LLP 2025 r"i,:,t Avenue, Suite 500 Seatt;e. WA 98121 (206) 382-9540 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 making up the association have the ability to guide the organization's actions or exert control over the association's directors."9 ASE's members do both of these: they guide the organization's actions in mandatory consultations with members, and they exert control over directors by electing and/or removing them. The powers of ASE members also satisfy the test articulated in the Examiner's previous decision regarding standing. In that decision, the Examiner expressed concerns about the relationship of Nicholson and other ASE members to the "course or direction" of the litigation and asked, "Who is driving the car?" Hearing Examiner's Decision at 5, Exhibit X to Third Buck Deel. As discussed above, ASE's Amended Bylaws put the members in complete control of both the "car" (the corporation itself) as well as the course of the litigation. They provide that "[t]he board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims." Amended Bylaws,§ 2.7. If the directors do not carry out the wishes of the members, members can remove them "at any time with or without cause or notice." Id.,§ l.2(c). The Applicant's arguments suggest that, in order to establish associational standing, all members must have direct control over the daily activities of the corporation. That is not how a membership corporation works. Like constituents in a democracy, ASE's members express their views and preferences and exercise control by voting. Returning to the car analogy, the Applicant will not be satisfied until all members have their hands on the wheel of the car at the same time. One can imagine it would be 9 See Applicant's Response to Appellants' Motion for Declaratory Ruling Regarding Standing at 4. APPELLANTS' REPLY BRIEF REGARDING MOTION Buck Gil Gordon LLP FOR RULING ON STANDING-8 2025 Fiest A•,em,e, s,;,e 500 Y:IWPIASE\SITE PLAN APPEALIASE REPLIES\020107-VERSION2.STANDING REPLY.DOC Secttle, WA 98121 (206) 382-9:i4:J 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 difficult to control the car under such circumstances. ASE's more practical approach allows its members to get where they want to go by electing a driver, telling the driver where to go, and replacing the driver ifhe fails to follow directions. IV. CONCLUSION For the reasons stated above, Appellants respectfully request that the Hearing Examiner issue a ruling confirming that both Brad Nicholson and ASE have standing. Dated thisL ~ayofFebruary, 2007. APPELLANTS' REPLY BRIEF REGARDING MOTION FOR RULING ON STANDING-9 Y,IWPIASE\SITE PLAN APPEALIASE REPLIES1020107-VERSION2.STANO!NG REPLY.DOC Buck~Gordon LLP 2025 FicscAvenl:e. Su;tc 500 Sea~tie. VJ/\ 98~21 {206) 382-9540 2 3 4 5 6 7 8 9 IO I l 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF RENTON FEB O 2 2007 RECEIVED GITY CLERK'S OFFICE ~ "':. 41 p411 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretation/Policy Decision LUA-06-071, SA-A APPLICANT'S REPLY TO APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION/POLICY DECISION AND SITE PLAN APPROVAL I. INTRODUCTION Applicant Harvest Partners brings this Reply to Appellants' Response to Motions to Dismiss Appeals of Interpretation/Policy Decision and Site Plan Approval ("Appellants' Response"). Despite their thirty-four page Response, Appellants nevertheless fail to present any evidence to alter the clear facts in this case: • • Appellants' appeal of the Interpretation Decision was untimely; The Director was authorized under the Renton Municipal Code to permit setback modifications in The Landing Site Plan; • Mr. Nicholson failed to perfect his appeals; and • Neither Mr. Nicholson nor ASE has standing to bring these appeals. For these reasons, and as set forth in detail below, Applicant respectfully requests that the Examiner dismiss Appellants' appeals of the Interpretation Decision and the Site Plan Approval. Reply to Appellants' Response to Motions to Dismiss -Page I of14 QRJG~t· ~ a . HlLL[S CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seatlle WA 98101-2925 206.623.1745; fax 206.623.7789 J,/j·07 -rhese aft +h~ ori91Mls of +h6 U!fJ!' ~ou ttlre~dr ff.,l 'd. d I do nor nee 1htn,'\· _ ~ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 II. STATEMENT OF FACTS On July 17, 2006, the City of Renton Development Services Division issued an "Interpretation/Policy Decision" (hereinafter the "Interpretation Decision") related to the setback standards in the Urban Center-North I (UC-NI) zone of Renton. As set forth in the Interpretation Decision, the Renton Municipal Code establishes maximum setback requirements for the downtO'-'TI commercial zones. The Interpretation Decision permits modification of the maximum setback requirements in the UC-NI zone during the site plan review process, as long as specific criteria are met as set forth in RMC 4-2-120C.15. The Interpretation Decision was made in the course of the City's review of development applications for the proposed Lowe's development, located directly east of The Landing site in the UC-NI zone. On August 17, 2006, the City of Renton Department of Planning, Building and Public Works issued a decision approving the Site Plan for The Landing (the "Site Plan Approval"). Additional facts relevant to this Reply are set forth in the motions and responses previously filed by Applicant, which are incorporated herein by this reference. III. ARGUMENT 17 A. 18 The Appellants' Appeal of the Interpretation Decision was Untimely. 1. The Renton Municipal Code does not require actual notice. 19 Appellants argue that their appeal of the Interpretation Decision was timely because it 20 was filed within fourteen days of the date they received actual notice of the decision. Despite 21 six pages of briefing on this issue, Appellants fail to identify one provision in the Renton 22 Municipal Code requiring that the City provide actual notice of the Interpretation Decision to 2 3 any party, let alone any provision requiring the City to broadly issue notice to any "affected" 24 party. In fact, the Renton Municipal Code contains no such requirement. The Renton 25 Municipal Code does, however, set a clear time limit for appeals. Under the Renton 26 Municipal Code, the time limits for appeals arc established by the date the action was taken or 2? the date of the decision, not the date that an unrelated party received actual notice of the 28 decision. See, e.g., RMC 4-8-110.EA(b). Reply to Appellants' Re:,ponse to Afotions to Dismiss -Page 2 of 14 ll[LL[S CLARK MART[N & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2. The Hearing Examiner does not have jurisdiction to determine constitutional arguments. 2 Because Appellants have no support in the Renton Municipal Code for their argument 3 that actual notice is required, they rely instead on alleged constitutional grounds. Appellants' 4 Response, at 12-16. However, the Hearing Examiner does not have jurisdiction to consider 5 the constitutional rights of non-applicants. 6 The Examiner's jurisdiction is established by code. RMC 4-8-070.H. The Renton 7 Municipal Code grants the Examiner the authority to review certain specific administrative 8 actions and land use approvals. Id. Appellants cite no authority, in the Renton Municipal 9 Code or otherwise, to support the Examiner's ability to determine constitutional questions. 1 O Indeed, in prior appeals, Appellant ASE has previously conceded that the Examiner "may not 11 consider the constitutional rights of Renton citizens appealing a City decision. See RMC 4-8- 12 I 10.E(7)(b)." Notice of Appeal of Hearing Examiner Decision, LUA-05-136, SA-A, SM, 13 (September 6, 2006), at 5, fn 2. 14 Therefore, as ASE has previously conceded, to the extent Appellants' arguments 15 regarding timeliness rely upon alleged constitutional violations, such arguments are beyond 16 the scope of the Examiner's jurisdiction and should be dismissed. 17 18 19 20 21 22 23 24 25 26 27 28 3. The Appellants have already been given an opportunity to appeal the application of the Interpretation Decision. Appellants suggest that if their appeal of the Interpretation Decision is deemed to be untimely, they will lose all ability to appeal the application of the Interpretation Decision to The Landing Site Plan. See, e.g., Appellants' Response at 12 ("Constitutional due process requires that the Appellants be given notice and an opportunity to object to the application of the Interpretation Decision to The Landing.") (emphasis added). However, this has never been Applicant's argument. While Appellants' failure to timely appeal the Interpretation Decision does preclude arguments regarding the authority of the Director to issue the decision, Appellants are not necessarily precluded from arguing that the Interpretation Decision was improperly applied in the context of The Landing Site Plan Approval. As long as such arguments are raised in a party's perfected appeal of a site plan approval, and in the Reply to Appellants' Response to Motions to Dismiss -Page 3 of 14 HILLIS CLARK MARTIN & PEHRSON, P.S. 500 Galland Building, 1221 Second Ave Seatlle WA 98101-2925 206.623.1745; fax 206.623.7789 event such party is found to have standing to bring the appeals, arguments regarding the 2 appropriate application of interpretations are appropriate matters to be addressed at the 3 hearing in the site plan approval. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. By failing to monitor the Lowe's project, Appellants missed their opportunity to appeal the Interpretation Decision. Finally, Appellants again point to their strong interest in the UC-NI zone and their close monitoring of all City activities regarding The Landing, apparently in support of their argument that they deserved special notice beyond that required by the Renton Municipal Code. Appellants' Response, at 15. Appellants seem to suggest that their constant scrutiny of activities related to The Landing surely entitled them to notice of other City decisions. Again, such a leap oflogic has no basis in the Renton Municipal Code or in Washington jurisprudence. Under the Renton Municipal Code, Appellants' interest in The Landing has no bearing on whether the City was required to provide Appellants with notice of the Interpretation Decision. Furthermore, had Appellants truly been interested in the setbacks within the UC-NI zone, as they consistently claim, they would have been scrutinizing the Lowe's approvals just as closely as they have those for The Landing. The Lowe's project is located directly east of The Landing. As parties of record for Lowe's, Appellants would have received actual notice of the Interpretation Decision via the Preliminary Report to the Hearing Examiner, mailed to parties of record on July 11, 2006. Upon receiving notice, Appellants would have had ample time to object within the fourteen-day time period following the date of the Interpretation Decision. By failing to become parties ofrecord for Lowe's, however, Appellants missed their opportunity to file a timely appeal. Moreover, Appellants' inaction on the Lowe's project raises serious doubts as to their supposed interest in development in the UC-NI zone. Appellants' attempt to resurrect untimely arguments now, in the context of The Landing, cannot be granted. Reply to Appellants' Response to Motions to Dismiss -Page 4 of 14 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Sealtle WA 98101-2925 206.623.1745; fax 206.623.7789 B. 2 The Director had Authority to Permit Modifications to the Setbacks; Therefore, the Director's Interpretation Decision was Not Ultra Vires. Appellants argue that the Director lacked authority to permit modifications to the 3 maximum setbacks in The Landing's Site Plan Approval. Despite its voluminous pleadings 4 on this issue, Appellants ignore express provisions from the Renton Municipal Code, by 5 which the Director clearly had the authority to permit modifications to the maximum setbacks 6 in The Landing. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Administrative interpretations are permitted for unclear or contradictory regulations. State law requires local governments planning under RCW 36.70A.040 to adopt procedures for administrative interpretation of their development regulations. RCW 36. 70B.l l 0(11 ). Consistent with this requirement, the City of Renton has adopted an administrative interpretation process. See RMC 4-l-080(A). The Renton Municipal Code provides: The Planning/Building/Public Works Administrator is hereby authorized to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title. RMC 4-1-080.A. l. Appellants attempt to argue that such an interpretation was not permitted in this case, and that the Director's actions were therefore ultra vires. Appellants' Response, at 3-12. As set forth in the Interpretation Decision, contradictions and inconsistencies in the Renton Municipal Code led to the decision. In light of these contradictions in the Renton Municipal Code, the Director was expressly authorized to issue the Interpretation Decision. RMC 4-1-080.A. Therefore, the Director's actions were not ultra vires. 2. The Director has authority to modify development standards in the Urban Center Design Overlay District. In addition to the Director's authority to modify The Landing setbacks pursuant to the Interpretation Decision, the Director also had express authority to modify The Landing setbacks under the Renton Municipal Code. The Renton Municipal Code expressly authorizes the Planning/Building/Public Works Administrator or his/her designee to make modifications to development standards in the Urban Design Regulation Overlay District. RMC 4-8- Reply to Appellants' Response to Motions to Dismiss -Page 5 of 14 HILLIS CLARK MARTIN & PETERSON, P. S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623. 1745; fax 206.623.7789 070.C. l O(vi). The Landing, as part of the Urban Center~ North zone, is located in the City's 2 designated "Urban Center Design Overlay District." RMC 4-3-100.B.1. Furthermore, the 3 maximum setbacks at issue are "development standards," as clearly labeled in the chart upon 4 which Appellants rely. RMC 4-2-120E ("Development Standards for Commercial Zoning 5 Designations"). Therefore, under the Renton Municipal Code, the Director did not exceed his 6 authority in approving modifications to the maximum setbacks for The Landing in the Site 7 Plan Approval, and the Director's actions were not ultra vires. 8 3. The Interpretation Decision did not amend the Renton Municipal Code. 9 Appellants attempt to apply various labels to the Interpretation Decision, all in an 10 effort to declare the Director's actions ultra vires. For example, Appellants argue that the 11 Interpretation Decision should be treated as an "amendment" to the Renton Municipal Code. 12 Appellants' Response, at 6-10. However, Appellants provide no rationale for why the 13 Interpretation Decision should be viewed as an amendment. 14 The Interpretation Decision was not an amendment to the Renton Municipal Code. 15 The code provision at issue in the Interpretation Decision, RMC 4-2-120E, contains exactly 16 the same language regarding maximum setbacks today as it did on the day before the 17 Interpretation Decision was issued. The Interpretation Decision never purports to be a code 18 amendment, but instead expressly recommends that a code amendment eventually be adopted 19 to be consistent with the Interpretation Decision. According to the Interpretation Decision, 20 the proposed development standard "should be included in the annual docket procedure for 21 addition into Title IV." Interpretation Decision, p. 2 (emphasis added). Appellants in their 22 Response also quote this language regarding the suggestion for docketing the proposed 23 development standard, but seem to misunderstand the meaning. Appellants' Response, at 6. 24 In this section of the Interpretation Decision, the Director is clearly suggesting a course of 25 action in the future, as to an eventual code amendment to clear up unclear and contradictory 26 provisions of the code that necessitated the interpretation. Nowhere in the Interpretation 27 28 Reply to Appellants' Response to Motions to Dismiss -Page 6 ofl4 HlLLIS CLARK MARTlN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Decision docs the Director claim that he has amended the Renton Municipal Code, and 2 Appellants point to no language to support their claim that an amendment was made. 3 Given the clear language in the Interpretation Decision, and due to Appellants' failure 4 to even articulate a rationale for why the Interpretation Decision might be considered an 5 amendment, all of Appellants' arguments regarding the Interpretation Decision as an 6 "amendment" are without merit and should be dismissed. Specifically, the Examiner should 7 dismiss Appellants' arguments regarding the alleged usurpation of City Council authority, the 8 alleged violation of the Planning Enabling Act, and the alleged violation of the Growth 9 Management Act (GMA). Appellants' Response, at 6-10. As discussed above, GMA 10 expressly requires development regulations to include an interpretation procedure. II 4. The Interpretation Decision was not a variance or a "de facto variance." 12 In yet another attempt to recharacterize the Interpretation Decision, Appellants also 13 label the decision a "de facto variance." Appellants' Response, at 10-12. Here, once again, 14 Appellants fail to point to any language within the Interpretation Decision to support the 15 notion that a "de facto variance" was granted. Given the absolute lack of evidence to support 16 their arguments, Appellants resort to filling this section with numerous citations to case law 17 and commentary, none of which stands for the proposition that a decision such as the 18 Director's Interpretation Decision constitutes a "de facto variance."1 Because Appellants 19 have no support for the argument that the Interpretation Decision constituted a variance of any 20 type, this argument should be dismissed. Moreover, the Renton Municipal Code clearly 21 distinguishes between modifications and variances. For example, within the same section 22 23 24 1 Appellants' strategy, for whatever reason, appears to have been to file an appellate-style brief. Appellants rely frequently upon irrelevant cases, apparently intended to lend an appearance of support. Upon examination 25 of many of the cases, however, it becomes clear that Appellants' reliance on the cases is either completely inappropriate or, as here with the "de facto variance" citations, the cases are simply irrelevant to the specific 26 issues at hand. For example, the Freshwater Wetlands case cited by Appellants in page 10 of their Response merely uses the term "bulk variance" in passing, without any discussion or analysis as to what constitutes a bulk 27 variance, let alone a "de facto variance." Interestingly, the case actually goes on to find that generalized harm (similar to that alleged by Mr. Nicholson), was insufficient to sustain an appeal. In re Freshwater Wetlands 28 Statewide General Permits, 185 N.J. 452,473 (2006). For further discussion on standing, see Part IV.D, below. Reply lo Appellants· Response to Motions to Dismiss -Page 7 of 14 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Sealtle WA 98101-2925 206.623.1745; fax 206.623.7789 granting the Planning/Building/Public Works Administrator or designee the authority to 2 modify development standards within the Urban Design Regulation Overlay District, there is 3 a separate provision granting the authority to issue certain types of variances. RMC 4-8- 4 070.C.23. 5 In summary, the Director has authority to modify the setbacks in The Landing Site 6 Plan. In fact, the Examiner is presented with two separate sources of authority for the 7 Director's actions. Where, as here, the Director was authorized to modify setbacks under the 8 Interpretation Decision issued under RMC 4-1-080.A. l and under the modifications provision 9 ofRMC 4-8-070.C. l O(vi), the Director's actions were clearly not ultra vires, and Appellants' Io claims to the contrary should be dismissed. 11 C. Mr. Nicholson Failed to Perfect His Appeals. 12 As set forth in the City ofRenton's Reply to Appellants' Response to Motions to 13 Dismiss Appeals oflnterpretation and Site Plan Decisions, Mr. Nicholson failed to perfect his 14 appeal. The errors in the appeals go well beyond what the Appellants label as "quibbling 15 about document formatting." Appellants' Response, at 2. First, Mr. Nicholson failed to pay 16 the requisite appeal fee. Second, Mr. Nicholson failed to request relief from the Examiner. 17 Third, neither Mr. Nicholson nor an attorney purporting to represent Mr. Nicholson signed the 18 appeals. Mr. Nicholson's appeals should be dismissed due to his failure to perfect the 19 appeals. 20 D. Mr. Nicholson Lacks Standing. 21 Even if Mr. Nicholson is deemed to be a property party to these appeals, and even if 22 his appeal is deemed timely, Appellants still have the burden of proof to establish that Mr. 23 Nicholson has standing to bring these appeals. Once again, Appellants fall short of this 24 burden. 25 26 27 28 ], Procedural standing requires a direct injury. In an attempt to establish standing, Appellants allege that Mr. Nicholson has suffered or will suffer numerous "procedural" injuries. See, e.g., Appellants' Response, at 28-29. For Reply to Appellants' Response to Motions to Dismiss -Page 8 of l 4 HlLLlS CLARK MARTlN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 example, Mr. Nicholson is supposedly hanned because he "has been unable to comment, 2 participate, and voice objections to the City Hearing Examiner and/or the City Council." 3 Id. at 28. However, loss of an alleged procedural entitlement, by itself, does not constitute 4 sufficient injury in fact to support standing to sue. Allan v. Univ. of Wash., 140 Wn.2d 323, 5 332-33, 997 P.2d 360 (2000) ("Absent a concrete interest, injury-in-fact standing ... is not 6 conferred upon [ a plaintiff] merely on the basis of an asserted failure on the part of the agency 7 to follow procedural requirements"); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 s (1992) ("We do not hold that an individual cannot enforce procedural rights; he assuredly can, 9 so long as the procedures in question are designed to protect some threatened concrete interest 1 o of his that is the ultimate basis of his standing"). There must be a specific, concrete injury in 11 fact to Mr. Nicholson himself, and no such injury is shown here. 12 Furthermore, many of Mr. Nicholson's alleged procedural injuries are apparently 13 based upon his past participation in proceedings related to The Landing. See, e.g., Second 14 Declaration of Brad Nicholson, at 1-2 ("! have invested a great deal of time and energy 15 participating in public hearings and proceedings regarding The Landing site"). Mr. Nicholson 16 appears to argue that, because he was involved in the past, he is directly hanned by the current 17 proceedings. Of course, Mr. Nicholson has had several opportunities to voice his concerns, in 18 his appeal of the Environmental Impact Statement, which he lost. Therefore, although J 9 Mr. Nicholson attempts to characterize these alleged procedural injuries as present hanns, he 20 relies upon his past participation in related proceedings as factual support for the alleged 2 J injury. Such evidence is insufficient to establish standing.2 Mr. Nicholson has the burden to 22 prove standing, and has fallen short here. 23 24 25 26 2 See Allan, 140 Wn.2d at 329 ("The harm Allan notes here is that she 'participated as a party in the very 27 adjudication and litigation which resulted in these changes .... However, the agency's past action is not the one causing the asserted prejudice. Moreover, the APA test speaks to present harm or more likely future harm."). 28 Similar to the APA test noted here, the Renton test requires "present" harm. RMC 4-9-200.N. Reply to Appellants' Response to Motions to Dismiss -Page 9 of 14 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Sealtle WA 98101-2925 206.623.1745; fax 206.623.7789 2. Mr. Nicholson fails to demonstrate a unique, particularized harm arising out of the Interpretation Decision or Site Plan Approval. 2 Although Appellants attempt to characterize Mr. Nicholson's alleged injuries as harms 3 that are "unique to Mr. Nicholson," there is absolutely no support for these assertions. In fact, 4 examination of each of Mr. Nicholson's alleged injuries reveals that not one of them is truly 5 "unique" to Mr. Nicholson, or even unique lo a smaller subset of the general public. For 6 example, Appellants state that Mr. Nicholson "has already been injured by the City's failure 7 to follow its own laws." Appellants' Response, al 30. Furthermore, if The Landing is built, 8 Mr. Nicholson will allegedly "suffer harm from the inappropriate presence of a suburban-style 9 development in an urban zone." Id. Appellants provide various other generalized claims of IO injury such as these, but consistently fail to establish the necessary direct link between the 11 injury and the injured. For example, Appellants provide absolutely no explanation as to why 12 Mr. Nicholson will suffer "unique harm" due to the presence of alleged "suburban-style 13 development. "3 14 To have standing to bring these appeals, Appellants must present sufficient evidentiary 15 facts to demonstrate that Mr. Nicholson, the only known member of ASE, has suffered a real 16 and present, direct injury arising out of the Site Plan Approval or Interpretation Decision. See 17 C.O.R.E., 33 Wn.App. al 684 ("Unless a litigant can demonstrate a direct stake in the 18 controversy, i.e., that he will be specifically and perceptibly harmed, he cannot invoke judicial 19 intervention. Otherwise, the judicial process will become no more than a vehicle for the 20 vindication of value interests of concerned bystanders.") Bald assertions of standing will not 21 suffice for purposes of standing. Id., at 683. Herc, Mr. Nicholson's bald assertions of remote, 22 generalized harm are wholly inadequate, and the Examiner cannot be expected to speculate as 23 24 25 26 27 28 3 Appellants argue that Applicant's interpretation of the law dictates that "no one would have standing to challenge these decisions." Appellants' Response, at 31. Such speculation has no bearing on the issue in this case, which is whether this appellant has standing. Moreover, one could imagine potential appellants that would have standing to bring a site plan appeal. For example, a hypothetical owner of residential property located directly adjacent to a site plan might have individualized harm arising out of the site plan. Unlike Mr. Nicholson's generalized claims of harm, an appellant would have standing ifhe showed particularized, direct, and unique harm sufficient to meet the standing test. See, e.g., Concerned Olympia Residents for the Environment (C. OR.E.) v. City uf Olympia, 33 Wn.App. 677, 684, 657 P.2d 790 (1983). Reply to Appellants' Response to Motions to Dismiss -Page IO of 14 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 to why Mr. Nicholson's harm is unique to him. Appellants have therefore failed to carry their 2 burden, and Mr. Nicholson's appeals should be dismissed for lack of standing. 3 E. ASE Lacks Associational Standing. 4 As an association, ASE has the burden of establishing that it has standing to bring 5 these appeals on behalf of its members, or that it has standing on its own behalf. ASE has 6 never asserted that it has standing on its own behalf. Therefore, ASE has the burden to 7 demonstrate it has associational standing, or standing to bring suit on behalf of its one 8 identified member. As discussed above, where that one member has no standing (as in this 9 case), the associational standing fails. IO ASE argues that Mr. Nicholson's membership in the association guarantees it 11 standing, and attempts to distinguish the cases cited by Applicant as inapplicable where Mr. 12 Nicholson is not a "supporter," but a "member." However, Appellants overlook a 13 fundamental inquiry in associational standing doctrine. In every associational standing 14 analysis, the courts emphasize that the association must be "representing" the member or 15 supporter, or that the appeal must be brought by the association "on behalf of' the member or 16 supporter. Contrary to Appellants' assertions, this same inquiry occurs regardless of whether 17 the association has members, or merely "supporters." See, e.g., International Ass 'n of 18 Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207,213, 45 P.3d 186 (2002) ("'An 19 association has standing to bring suit on behalf of its members when the following criteria are 20 satisfied ... ") ( emphasis added); see also Save a Valuable Environment v. City of Bothell, 89 21 Wn.2d 862, 867, 576 P.2d 401 (1978) ("We agree that a non-profit corporation or association 22 which shows that one or more of its members are specifically injured by a government action 23 may represent those members in proceedings for judicial review") ( emphasis added). In 24 other words, the member or supporter cannot be a mere bystander to the action. 25 This fundamental requirement gets to a core of' standing doctrine. Just as courts are 26 unwilling to open their doors to appellants that do not have a direct interest in the appeal, so 27 too must associations have a direct interest. Without its own basis for standing, the 28 Reply to Appellants' Response to Motions to Dismiss -Page 11 of 14 IIILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206 623. 1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 association's direct interest can only exist if the association actually represents the members. Indeed, in the absence of that necessary link between the association and its members, the elements of the associational standing test become irrelevant. Regardless of whether the individual has standing, for example, if the appellant association does not represent the individual, the individual's standing has no bearing on the course of the appeal. Appellants attempt to distinguish their facts from those presented in the cases cited by Applicant, yet ignore this fundamental inquiry forming the basis for all associational standing decisions. The cases cited by Applicant present informative situations wherein the courts were forced to examine this core question of whether the association was acting as a true representative of the individuals' interests. As one of those courts stated: It is no small matter for an organization to assert the right to sue, not on behalf of itself, but on behalf of others. We lake from Hunt [a U.S. Supreme Court case] that such a right requires the representational relationship to be a strong one, in order to ensure the fidelity of the organization to those for whom it claims to speak. The substance of an association-member relationship is more important than the form, but Hunt leaches that the substance must be present. Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201, 1209 (2002) (emphasis added). In the typical case in which an association brings an appeal and asserts associational standing, courts do not question whether the association is representing its members -not because that inquiry is not required, but because many organizations are well-established and the evidence is clear that the members are indeed in control of the association. Only where the courts have had to look more closely at the structure of the "members" have they actually engaged in this key inquiry of whether the association is truly acting on behalf of the "members.'' This case, however, is far from a typical associational standing case. The Examiner has already reviewed the facts and found that ASE is a shell group, funded and controlled by an economic competitor solely to thwart the development of The Landing, and that ASE' s sole member, Mr. Nicholson, is merely a "straw man" whose interests are not represented by Reply to Appellants' Response to Motions to Dismiss -Page 12 ofl4 1111.1.,s CLARK MARTJN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 • the association. Hearing Examiner Decision, September 5, 2006, at 5, 8. Therefore, based on 2 these highly unusual facts, the Examiner must determine whether ASE has met the 3 fundamental inquiry inherent in associational standing -does ASE represent Mr. Nicholson? 4 ls ASE bringing these appeals on behalf of Mr. Nicholson? ASE has the burden of proof to 5 demonstrate that this relationship exists. 6 Based on all of the evidence in the record, ASE has utterly failed to meet its burden. 7 ASE failed to provide complete Bylaws or corporate minutes, leaving one to wonder "why?" 8 Furthermore, ASE has the burden of proof to demonstrate that it had associational standing at 9 the time the appeals were filed.4 ASE filed these appeals on August 31, 2006. The 10 Examiner's decision regarding ASE's lack of associational standing was not issued until 11 September 5, 2006. Given that the Examiner's decision had not even been issued when these 12 appeals were filed, it is unlikely that ASE had amended its Bylaws as of the date of these 13 appeals, and the undated, unsigned "excerpts" from the Bylaws certainly do not support such 14 a claim. Finally, even if the amendments to the Bylaws did occur prior to August 31, 2006, 15 the undated, unsigned "excerpts" from the Bylaws show only that members will be 16 "consulted," and therefore are no more than bystanders. 17 As a mere bystander to the appeals, Mr. Nicholson is not being represented by ASE. 18 Therefore, ASE does not have associational standing -regardless of whether it meets the 19 requirements of the associational standing test in Washington. The Examiner should dismiss 20 ASE's appeals for lack of associational standing. 21 II 22 II 23 II 24 II 25 II 26 27 4 See, e.g., Perry v. Village of Arlington Heights, 186 F.3d 826, 830 (1999) ("It is not enough for [a party] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be 28 satisfied from the outset ... "). Reply to Appellants' Response to Motions to Dismiss -Page 13 of 14 H[LLIS CLARK MART[N & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the reasons set forth herein, Applicant respectfully requests that Applicant's Motions to Dismiss be GRANTED. ~, I f DATED this _/·_. __ day of February, 2007. #J466ll [8449-004 7fg30l'doc Reply to Appellants' Response to Motions to Dismiss -Page 14 of 14 HILLIS CLARK MARTIN & PETERSON, P.S. 1· j By 1 ; n -.,._ , ._ · A' ( i > ~ Jerome L. Hillis'. WSBA # 1704 T. Ryan Durkan, WSBA #11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners H1u.rs CLARK MARTrN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeal of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval. No. LUA-06-071, SA-A CERTIFICATE OF SERVICE 12 I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson, 13 P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. I hereby certify that 14 on the 2"d day of February 2007, I caused to be delivered via legal messenger a true and 15 correct copy of Applicant Harvest Partners (I) Reply to Appellants' Relponse to Motions to 16 Dismiss Appeals of Interpretation/Policy Decision and Site Plan Approval; and (2) this 17 Certificate of Service to the following: 18 19 20 21 22 23 24 25 26 27 28 Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 Lawrence J. Warren, City Attorney Warren Barber & Fontes, P.S. 100 South Second Street Renton, WA 98057 Brad Nicholson c/o Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Certificate ofService -Page I of 2 Office of the Clerk City of Renton 1055 South Grady Way Renton, WA 98055 Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 HILLIS CLARK MARTl>J & PETERSO>J, P.S. ORIGINAL 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623. 1745; fax 206.623. 7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~,.J DATED this _'-__ day of February, 2007. #345401 18449-004 7#$h011.doc 2102107 Cerlijicale of Service -Page 2 of 2 HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. Pan Legal Assistant to T. Ryan Durkan HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CllY OF RENTON JAN 2 6 2007 RECEIVED ci:;:v CLERK'S OFFICE u s: iz r_,_,, BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretatiow'Policy Decision LUA-06-071, SA-A APPLICANT'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL I. INTRODUCTION The City of Renton was founded over a century ago and was initially known for industrial uses such as coal mining, logging and brick making. Since the 1940's when Boeing built a factory in Renton, the city's economic fortunes have been tied to airplane manufacturing. With the rise of the global economy, Boeing began to geographically diversify its operations. Renton wisely determined that it also needed to plan for diversification. Accordingly, it adopted a Comprehensive Plan, development regulations, and Planned Action Ordinance in order to provide for the transition of surplus industrial Boeing land into a new mixed-use development that would evolve over time to serve as a retail center to the region. Consistent with the City's plans and new vision for the area, it has granted certain approvals to Applicant Harvest Partners' project, The Landing. With construction of The Landing, property fonnerly used by Boeing will begin to be remade into the progressive heart of an emerging neighborhood on the southern tip of Lake Washington. The Landing will provide an urban neighborhood with retail, entertainment, and restaurant uses and associated Response to Appellants' Motion to Remand Site Plan Approval -Page I of9 ORIGINAL HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 parking in the City of Renton, Washington. Under the City's tiered development review, 2 Applicant's Master Plan for The Landing was approved in May 2006, and Site Plan Approval 3 for The Landing occurred in August 2006. 4 As the Examiner is aware from previous litigation concerning The Landing, Westfield 5 Southcenter, a competing shopping mall, apparently feels threatened by the City of Renton' s 6 plans for retail growth. Although it did not appeal the City's Comprehensive Plan or Planned 7 Action Ordinance, it is seeking to stop those plans from being realized now that 8 implementation is occurring. This case involves the latest in a series of appeals. Specifically, 9 on August 31, 2006, Appellant Alliance for South End ("ASE"), the front group funded hy 10 Westfield Southcenter, and Appellant Brad Nicholson, a member of ASE,1 filed an appeal of 11 The Landing Site Plan Approval. 12 At a pre-hearing conference before the City of Renton Hearing Examiner, the 13 Examiner established a briefing period for the parties to exchange pre-hearing jurisdictional 14 motions. On January 12, 2007, Appellants filed a "Motion to Remand Site Plan Approval," 15 requesting that the Examiner remand the Site Plan Approval for The Landing. Applicant 16 brings this Response to Appellants' Motion to Remand. For the reasons set forth below, the J 7 Examiner should deny Appellants' motion. 18 19 20 21 22 23 24 25 A. II. STATEMENT OF FACTS Planned Action Designation and Master Plan Approval 1. The City has Adopted a Planned Action Ordinance for The Landing Site, and Designated The Landing as a Planned Action. On November 15, 2004, following public notice, opportunity for public comment and a public hearing on the proposed ordinance, the Renton City Council adopted Ordinance 5107 1 Due to Mr. Nicholson's failure to perfect his appeals, Applicant has argued that Mr. Nicholson is not a 26 proper party to these appeals. See Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing; and Applicant's Motion to Dismiss ASE and 27 Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction, both on record with the Examiner. Because those motions are still pending, Applicant will address both ASE and Mr. Nicholson as 28 "Appellants" in this Response. Re,ponse lo Appellants' Motion to Remand Site Plan Approval· Page 2 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 designating a planned action (the "Planned Action Ordinance" or "PAO"). The Planned 2 Action area was specified as the approximately 55-acre area of property located East of the 3 Boeing manufacturing operations between Logan Avenue North to the West, Garden 4 Avenue North to the East, and North 8th Street to the South (the "Planned Action Area"). 5 The Landing is within the Planned Action Area. 6 Under the Planned Action Ordinance, once the Director has determined that a specific 7 project application meets the criteria of WAC I 97-11-172 and the PAO, the Director then s designates the project application as a Planned Action. The effect of such a designation is that 9 the project is not subject to further environmental review. 1 o On May 12, 2006, the City of Renton Development Services Division designated The 11 Landing Master Plan project application as a Planned Action. Because The Landing met the 12 criteria for a Planned Action, no further environmental review was necessary. 13 ASE appealed the Planned Action designation to the City of Renton Hearing 14 Examiner. The Examiner dismissed ASE's appeal for lack of standing. 15 2. The City has Approved the Master Plan for The Landing. 16 On May I 9, 2006. the City of Renton Department of Planning, Building and Public 17 W arks issued a decision approving the Master Plan for The Landing. ASE appealed the 18 Master Plan approval to the Examiner. The Examiner dismissed ASE's appeal for lack of 19 standing. 20 B. ASE Appeals the City of Renton 's Approval of The Landing Site Plan 21 On August 17, 2006, the City of Renton Department of Planning, Building and Public 22 Works issued a decision approving the Site Plan for The Landing, including approximately 23 572,700-square feet of commercial and retail development to be constructed on a 38.22-acre 24 site within the Urban Center-North I (UC-NI) zone (the "Site Plan Approval").2 25 26 27 2 The master plan approval and planned action designation for The Landing encompassed a larger site than is the subject of the Site Plan Approval. For purposes of this appeal, "The Landing" is defined to include only 28 the development and site approved in the Site Plan Approval. Response to Appellants' Afotion to Remand Site Plan Approval -Page 3 (Jl9 HILLJS CLARK MARTJN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 On August 31, 2006, Appellants filed an appeal of the Site Plan Approval. On 2 January 12, 2007, Appellants filed a Motion to Remand Site Plan Approval, requesting that 3 the Examiner rule that The Landing Site Plan "does not comply with the City's development 4 regulations and Comprehensive Plan" and remand the Site Plan Approval for further s proceedings. Motion to Remand, at 2. 6 C. Appellants Stipulate as to Certain Portions of The Landing 7 In December 2006, Appellants signed a stipulation so that their appeals, including 8 their appeal of the Site Plan Approval, would not pertain to and would have no effect upon 9 certain portions of Quadrant C in The Landing. Quadrant C, the southeast quadrant of The 10 Landing project, will include a Target store and its associated roads, driveways, access ways, l l utilities, street improvements, drive aisles, parking and loading. The parties filed a stipulation 12 with the Examiner pertaining to these vested developments (the "Stipulation"). 13 14 15 16 l 7 l 8 19 20 21 22 23 24 A. III. ARGUMENT Appellants' Substantive Arguments are Inappropriate for a Pre-Hearing Motion and Should be Reserved for a Hearing on the Merits. Appellants in their Motion to Remand attempt to incorporate numerous substantive arguments that are inappropriate for pre-hearing motions. Specifically, Part IV.A of Appellants' Motion to Remand, titled "The Site Plan Does Not Comply With the City's Land Use Regulations," and Part IV.B of Appellants' Motion to Remand, titled, 'The Landing's Proposed Site Plan Fails to Conform to the City's Comprehensive Plan, which in Renton has regulatory effect," contain arguments on the merits that can only properly be addressed at a hearing. Motion to Remand, at 3-5. Such arguments should therefore be reserved for the hearing (if the appeals are not dismissed), and cannot be the basis for granting Appellants' requested relief. 25 B. Even Though Inappropriate for Pre-Hearing Motions, Appellants' Arguments are Incorrect. 26 27 28 Although Appellants' arguments in Part IV.A and Part IV.Bare improper at this stage of the appeals, Applicant has provided brief responses to the arguments below. Should a Response lo Appellants' Motion lo Remand Site Plan Approval -Page 4 o/9 HlLLIS CLARK MARTIN & PEHRSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623 1745; fax 206.623.7789 hearing on these appeals occur, Appellants will be required to present evidence sufficient to 2 meet their burden of proof as to each of their claims. In such event, Applicant is prepared to 3 expand upon each of the responses below. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. There are no violations arising from proximity to pedestrian-oriented streets. a. The streets cited are not designated pedestrian-oriented streets. Many of the alleged violations identified by Appellants relate to the proximity of buildings or parking areas to "pedestrian-oriented streets." These alleged violations are depicted on Exhibits A, B, C, D, E, and G to Appellants' Motion to Remand. Appellants' arguments appear to be based on an assumption by Appellants that the entirety of Park Avenue North, North 8th Street, and North 10th Street in The Landing are "pedestrian- oriented streets." See Motion to Remand, at 3. This assumption is incorrect. The City of Renton has officially designated certain streets as "arterials." RMC 4-2-080.E. For example, within The Landing, the designated arterials are Park Avenue North, North 8th Street between Park Avenue North and Garden Avenue North, and Garden Avenue North. Id. The City appears to have no formal designation of streets as "pedestrian- oriented streets." Appellants cite to no provision in the Renton Municipal Code establishing Park Avenue North, North 8th Street, or North 10th Street as pedestrian-oriented streets. No such provision exists. Thus, there can be no code violation. This is not to say that Applicant did not seek to incorporate pedestrian-oriented design concepts into The Landing, and indeed sought to make some of the arterials more pedestrian friendly, especially the northern part of Park Avenue. The Site Plan decision for The Landing addresses the hierarchy of street types within The Landing, and characterizes North I 0th Street and the northern portion of Park Avenue North as "pedestrian-oriented streets." See Site Plan decision, attached as Exhibit A to Appellants' Notice of Appeal of Administrative Site Plan Approval, at 10. However, absent an official designation of North 8th Street or the southern portion of Park Avenue North as pedestrian-oriented streets, nearly all of Response to Appellants' Motion to Remand Site Plan Approval -Page 5 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Appellants' arguments reflected in its Motion to Remand, Exhibits A, B, C, D, E, and G, are 2 ill-founded. 3 b. Modifications to development standards were approved. 4 The Renton Municipal Code grants the City's Planning/Building/Public Works 5 Department the ability to grant modifications from the Renton Municipal Code standards 6 when there are "practical difficulties in carrying out the provisions of the Renton Municipal 7 Code." RMC 4-9-250.D. Where the overall intent of the standards was met, the Director 8 permitted certain modifications from the Renton Municipal Code standards. For example, the 9 Director permitted a modification to the design standards relating to parking between 10 buildings and streets, finding that the proposed Site Plan "complied with the intent of the 11 design regulations through the creation of a retail development with pedestrian-oriented 12 elements." Site Plan decision, at 10. The Director also permitted a modification to the design 13 standards relating to the location of surface parking lots, based on "the project's ability to 14 maintain an active pedestrian environment and the consolidation of surface parking areas for 15 future retail and structured parking development." Site Plan decision, at 12. !fa hearing 16 occurs, and if Appellants present evidence to meet their burden of proof, Applicant is 17 prepared to demonstrate that the evidence in the record sustains the Director's decision. 1 S 19 20 21 22 23 24 25 26 27 28 2. There are no violations of unscreened loading dock standards. Appellants argue that the Site Plan fails to screen certain loading docks from view, as required by RMC 4-2-120.E. Motion to Remand, at 4 and Exhibit F. Appellants apparently failed to notice the provision regarding "Screening for outdoor loading" in the same code section. RMC 4-2-120.E. This provision references RMC 4-4-095, which states that screening for outdoor loading in commercial zones is not required except when the commercial lot is adjacent to a residentially-zoned lot. The commercial lots in question here are not adjacent to residentially-zoned lots. Therefore, under the Renton Municipal Code, and contrary to Appellants' allegations, screening of the loading docks is not required. Response to Appellants' Motion to Remand Site Plan Approval -Page 6 o/9 HILLIS CLARK MARTIN & PETERSO;J, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. There are no violations of setback requirements. Appellants argue that certain buildings within The Landing exceed the maximum setbacks required by the Renton Municipal Code. However, as set forth in the City's Site Plan decision, the Director of Development Services issued a Determination stating that the maximum front yard and side yard along street setbacks may be altered through the Site Plan Review Process. Site Plan decision, at 5. In analyzing the proposed setbacks in The Landing Site Plan, the Director examined the purpose behind maximum setbacks, which is to foster a "pedestrian-oriented development." Id. The Landing incorporates numerous pedestrian- oriented elements, including pedestrian pathways, street furnishing, and a private internal street. Id. Therefore, given the overall pedestrian-oriented environment, and in accordance with the Director's Determination, the City approved the proposed setbacks. Id. 4. There are no violations of Comprehensive Plan provisions. Appellants' Motion to Remand includes a laundry list of alleged violations of the City's Comprehensive Plan. Motion to Remand, at 4-5. Not only do Appellants' abstract, general assertions lack any factual support, but many of them were previously addressed in the Director's Site Plan decision. Should a hearing on these appeals occur, Appellants will carry the burden of presenting evidence to support their allegations regarding the supposed Comprehensive Plan violations. In such event, Applicant is prepared to respond with evidence clearly supporting The Landing Site Plan's compliance with Comprehensive Plan policies and objectives. For example, the overall intent of the Comprehensive Plan policies was to create a regional retail center. See, e.g., LU-272. The fact that Westfield Southcenter feels economically threatened and compelled to appeal The Landing shows that the Comprehensive Plan vision of Renton as a viable economic retail center is close to being realized. Also, Appellants' main argument seems to be that the development is not urban; yet, there can also be no doubt that The Landing is urban in nature. The overall urban experience will be one that will enable residents and visitors to park, shop, dine, and see a movie, all in one center. Moreover, under the Growth Management Act, the density proposed would only be allowed in an urban area and would not be allowed in a rural area. Finally, it should be Response to Appellants' Motion to Remand Site Plan Approval -Page 7 o/9 HILLIS Ci.ARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seatlle WA 98101-2925 206.623.1745; fax 206.623.7789 remembered that The Landing Site Plan is the first phase of development that will occur over 2 time. As can been seen with other shopping malls like University Village in Seattle, infill 3 development can occur over time to make the development even more urban in nature. In fact, 4 infill development over time is expressly contemplated by the Comprehensive Plan. 5 See, e.g., LU-285. 6 C. A Public Hearing Was Not Required. 7 Appellants argue that the Site Plan Approval was improper because a public hearing 8 was not held on The Landing Site Plan. However, according to the Renton Municipal Code, a 9 public hearing on a site plan is not required when a master plan has already been approved: IO '"Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be 11 submitted and approved administratively without a public hearing." RMC 4-9-200.D. l .a. 12 Here, the City approved The Landing's Master Plan in May 2006. Therefore, a public hearing 13 was not required prior to the Site Plan Approval. Furthermore, because a public hearing was 14 not required, administrative approval of the Site Plan, rather than approval by the Examiner, 15 was proper. Id.; see also RMC 4-9-200.G. I 2. 16 D. The Wal-Mart Decision is Irrelevant. 17 Appellants attempt to insert scare tactics into their Motion to Remand with a 18 discussion of a recent case involving a Wal-Mart store in Chelan County, Washington. 19 However, the Chelan County trial court decision has absolutely no precedential value in the 20 case at hand. Furthermore, any arguments made on the basis of that decision are entirely 21 speculative given the procedural posture. Because Appellants' discussion regarding Wal- 22 Mart is completely irrelevant, no response is merited. 23 24 25 26 27 28 E. Where Appellants' Arguments Implicate the Stipulation, No Relief Can Be Granted. While many of Appellants' arguments on the merits are inappropriate for these pre- hearing motions, as discussed above in Part III.A, it should also be noted that the Examiner will be unable to grant Appellants' requested relief as to certain portions of Appellants' appeals. This is due to the fact that portions of Appellants' appeals implicate the Stipulation. Response to Appellants 'Motion to Remand Sile Plan Approval -Page 8 o/9 HlLLlS Cl.ARK MART]'-/ & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Therefore, as to those alleged violations within Quadrant C of The Landing, as depicted on 2 Appellants' Motion to Remand Exhibits A, B, C, F, G, and H, the Examiner is unable to grant 3 Appellants' requested relief, and such claims should be dismissed. 4 IV. CONCLUSION 5 Appellants' Motion to Remand largely contains arguments are on the merits, and 6 should be reserved for the hearing, ifit occurs. Nevertheless, as addressed above, Appellants' 7 substantive arguments are incorrect under the Renton Municipal Code. 8 For the reasons set forth herein, Applicant hereby requests that Appellants' Motion to 9 Remand Site Plan Approval be DENIED. ~ // 'T)'\ 10 DATED this , yL'". day of January, 2007. 11 12 13 14 15 16 17 18 19 #346026 18449-004 7#z%01 '.doc 20 21 22 23 24 25 26 27 28 Response to Appellants' Motion to Remand Site Plan Approval -Page 9 of9 HILLIS CLARK MARTIN & PETERSON, P.S. By I '·.· "'If) ( -· .<1-. Jerome L. Hill'·, WSBA #1704 T. Ryan Dur an, WSBA # 11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners HJLL[S CLARK MARTIN & PETERSO;J, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretation/Policy Decision LUA-06-071, SA-A APPLICANT'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING REGARDING STANDING I, INTRODUCTION Appellant Alliance for South End ("ASE"), a front group funded by a competing shopping mall, and Appellant Brad Nicholson, a member of ASE, have filed two appeals related to the Site Plan Approval for Applicant Harvest Partners' project, The Landing.1 These appeals represent "Round 2" of appeals by ASE, with "Round l" being ASE's previous appeals of The Landing's master plan approval and The Landing's planned action designation. In September 2006, the City of Renton Hearing Examiner dismissed both of ASE's Round 1 appeals due to ASE's lack of standing to bring the appeals on behalf of Mr. Nicholson. Fearing that Round 2 might also be dismissed for lack of standing, ASE and Mr. Nicholson have attempted to remedy their past errors by providing amended "excerpts" from 1 Due to Mr. Nicholsoo's failure to perfect his appeals, Applicant has argued that Mr. Nicholson is not a proper party to these appeals. See Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing; and Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction, both on record with the Examiner. Because those motions are still pending, Applicant will address both ASE and Mr. Nicholson as the "Appellants" in this Response. Response to Appellants' Motion for Declaratory Ruling Regarding Standing-Page I '6AIGINAL HILLIS CI.ARK MARTIN & PcnRSON, P.S. 500 Galland Building, 1221 Second Ave Seallle WA 98101-2925 206.623.1745; fax 206.623.7789 ASE' s Bylaws, all in an effort to demonstrate that changed conditions merit a finding of 2 standing. In addition, on January 12, 2007, Appellants filed a "Motion for Declaratory Ruling 3 Regarding Standing," requesting that the Examiner issue a "declaratory ruling" confirming 4 that the Appellants have standing in these appeals. Applicant brings this Response to 5 Appellants' Motion for Declaratory Ruling. The Examiner should deny Appellants' motion. 6 II. STATEMENT OF FACTS 7 Applicant incorporates by this reference the Statement of Facts from its Motion To 8 Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval 9 For Lack of Standing. IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. III. ARGUMENT The Hearing Examiner Does Not Have Jurisdiction to Issue a Declaratory Ruling. I. The Examiner's jurisdiction is established by Renton Municipal Code and does not extend to issuing declaratory rulings. Appellants' Motion for Declaratory Ruling requests the following relief from the Examiner: Appellants respectfully request that the Hearing Examiner issue a declaratory ruling confirming that Brad Nicholson and ASE have standing to proceed with their appeals of the Director's Site Plan Decision and the Director's Setback Decision. Motion for Declaratory Ruling, at 12. The Examiner's jurisdiction is established by code. Renton Municipal Code (RMC) 4-8-070.Il. The Renton Municipal Code grants the Examiner the authority to review certain specific administrative actions and land use approvals. Id. Appellants cite no authority, in the Renton Municipal Code or otherwise, to support the Examiner's ability to issue such a declaratory ruling. Even if there is such authority, the declaratory ruling on standing is unnecessary because Applicant has moved for dismissal for lack of standing, as discussed below. Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 2 of9 HILLIS CLARK MARTI'-! & PETERSO'-i, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. A declaratory ruling is unnecessary and inappropriate procedurally. The parties are currently exchanging pre-hearing jurisdictional motions. Appellants' Motion for Declaratory Ruling is not framed as a jurisdictional motion, and Appellants cite no authority, in the Renton Municipal Code or otherwise, to establish a procedural basis for such a "declaratory" motion. 2 Furthermore, Appellants fail to elaborate on the standard of review for such a "declaratory ruling," providing only a statement that a declaratory ruling would "avert further delay" in the appeals. Motion for Declaratory Ruling, at 1. Applicant has already filed motions to dismiss these appeals for lack of standing. Therefore, Appellants' apparent concern with having standing determined prior to the hearings will be addressed without the need for a declaratory ruling. B. ASE Lacks Associational Standing. J. ASE previously failed to meet its burden of proof. In order to appeal an administrative decision, an appellant must have standing. RMC 4-8-110.E.3.b. A party asserting standing bears the burden of establishing the clements of standing. See Concerned Olympia Residents for the Environment (C.O.R.E.) v. City of Olympia, 33 Wn. App. 677,683,657 P.2d 790 (1983). The appellant must demonstrate an injury in fact, and must also show that its allegedly endangered interest is within the "zone of interest" to be protected or regulated. Trepanier v. City of Everett, 64 Wn. App. 380, 382-83, 824 P.2d 524 (1992). An association only has standing to bring suit on behalf of its members if its members would otherwise have standing to sue in their own right. Int'/ Ass 'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). In determining whether associational standing exists, the U.S. Supreme Court has looked to whether the alleged "members" of an association possess certain "indicia of membership" in the organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333, 344-45 (1977). This 27 2 If Appellants are attempting in this motion to trigger review under the Uniform Declaratory Judgments Act, RCW 7.24, this attempt has failed as Appellants have established no ties to the statutory language and 28 criteria for such judgments. Response lo Appellants' Motion for Declaratory Ruling Regarding Standing -Page 3 of9 HILi.JS CLARK MARTJN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 analysis often turns upon whether the individuals making up the association have the ability to 2 guide the association's actions or exert control over the association's directors. See, e.g., 3 Friends a/Tilden Parkv. Dist. a/Columbia, 806 A.2d 1201, 1208 (D.C. 2002). By focusing 4 on whether the association possesses the necessary attributes for standing, courts are able to 5 analyze whether the alleged "member" actually has control, or is merely a puppet for other 6 interests. 7 Applying the associational standing test to Round 1 of the ASE appeals, the Examiner 8 determined that ASE had not met its burden of proof to establish standing. Hearing Examiner 9 Decision, at 8. 3 The Examiner considered the level of control that Mr. Nicholson had in the 1 o organization, asking "Who is driving the car?" for ASE. Hearing Examiner Decision, at 4. 11 Based on the evidence in the record, including an undated, unsigned "excerpt" supposedly 12 from the ASE Bylaws, the Examiner determined that Mr. Nicholson, the sole named member 13 of ASE, lacked any meaningful control in the organization. Hearing Examiner Decision, at 5. 14 Therefore, the Examiner held, ASE failed in demonstrating associational standing: "Here we 15 have an organization in which no member can call the shots ... This office finds that ASE docs 16 not have standing. It is a mere shell created by the applicant's potential competitor, 17 Southcenter/Westfield for the purpose of thwarting a competitor's proposed development." 18 Hearing Examiner Decision, at 8. 19 2. ASE's additional evidence is still insufficient to establish standing. 20 In an effort to avoid the outcome of Round I, ASE has attempted to supplement the 21 record with additional evidence in Round 2 to establish its associational standing. ASE's 22 Motion for Declaratory Ruling includes a Declaration by Mr. Nicholson, as well as a new 23 "excerpt" from the amended ASE Bylaws. Once again, the "excerpt" is undated and 24 unsigned. See Nicholson Declaration, at Exhibit D. 25 26 27 .1 A copy of the Hearing Examiner's Decision was attached as Exhibit B to Applicant's Motion To Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval For Lack of Standing, on file 28 with the Examiner. Reoponse lo Appellants' Motion for Declaratory Ruling Regarding Standing -Page 4 o/9 IIILLIS Ci.ARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 According to Mr. Nicholson's Declaration, he now holds the position of"Vice President" and "Secretary" of ASE, and also has the role of taking minutes and keeping "corporate records." Nicholson Declaration, at 2. Furthermore, ASE has now allegedly "made a practice" of consulting with its members prior to litigation decisions. Motion for Declaratory Ruling, at 2-3. Interestingly, Mr. Nicholson appears to believe he possesses a greater level of control over ASE than actually exists. According to Mr. Nicholson's Declaration, ASE has adopted a "policy" by which the ASE Director will "consult" with members prior to litigation, and "The corporation shall carry out the directions of the members." Although Mr. Nicholson states that the ASE Bylaws have been amended to "formalize its members' control over the direction of the corporation," the last line of the "policy," giving the members control over the ASE directors, is noticeably absent from the ASE Bylaws. According to Section 2. 7 of the amended ASE Bylaws, the role of the members is still quite limited: Section 2. 7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims. Nicholson Declaration, at Exhibit D. It is the Bylaws, not the "policy," that form the basis for ASE's corporate governance. According to the ASE Articles oflncorporation, the ASE Bylaws establish the qualification for membership, the powers of the corporation, and the powers of the directors of ASE. See Nicholson Declaration, at Exhibit C. Therefore, as evidenced by the ASE Bylaws, the role of the members within the ASE organization has changed very little since Round I. The directors still "advise" the members, and are merely required to "seek input" from the members prior to major decisions. Mr. Nicholson might have a new role taking minutes for ASE, or keeping ASE' s corporate records, but such activities are irrelevant for the key inquiry: "Who is driving the car?" ASE is still funded and controlled by Westfield, and is still represented by Westfield's law firm, Buck & Gordon. Mr. Nicholson, a member whose primary right is to be "consulted" prior to ASE's major decisions, is not driving the car. Response to Appellants' Motion for Declaratory Ruling Regarding Standing-Page 5 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206 623. 7789 The Examiner must determine if ASE has carried its burden to establish associational 2 standing based on the evidence provided in the record. ASE has failed to produce evidence to 3 support its associational standing. There remains no evidence whatsoever that ASE is 4 controlled by a member with standing. 5 3. ASE has not met its burden to show injury in fact. 6 Even if ASE was able to demonstrate that it had associational standing to bring this 7 appeal on behalf of its members, the association also bears the burden of establishing that its 8 members meet the elements of standing. As detailed in Part 111.C below, neither ASE nor Mr. 9 Nicholson has presented evidence to demonstrate that Mr. Nicholson has suffered or will 10 suffer a concrete, particularized injury arising out of The Landing's Site Plan Approval. By 11 failing to present any evidence of injury in fact to its member, ASE has failed to establish 12 standing. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Mr. Nicholson Lacks Standing. ]. Mr. Nicholson's harm must arise from the Site Plan Approval. Standing must be established as to each and every claim. See DaimlerChrysler Corp. v. Cuna, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted."). Therefore, in order to establish standing, ASE and Mr. Nicholson must demonstrate that they have suffered or will suffer a direct, concrete, particularized injury in fact arising out of the Site Plan Approval. Any assertions of standing based upon the overall project concepts or environmental impacts - including those such as traffic, water quality, aesthetics or any other "impact" related to the master plan review and environmental review stages -are insufficient to establish standing for purposes of this appeal. Here, there is no relationship between Mr. Nicholson and the challenged action such that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could he possibly assert, that he is directly damaged in any way by the Site Plan Approval. The Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 6 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 supposed basis for Mr. Nicholson's alleged harm is simply too remote and indirect to the Site 2 Plan to establish standing, as discussed below. 3 2. Mr. Nicholson has not met his burden to show injury in/act. 4 To establish standing, the appellant bears the burden of demonstrating that he will be 5 specifically and perceptibly harmed by the challenged action of approving the detailed 6 arrangement of The Landing Site Plan; in other words, the appellant must show a "direct 7 stake" in the Site Plan Approval. COR.E., 33 Wn. App. at 684 (1983). The requirement that 8 the appellant demonstrate his "direct stake" in the controversy consequently means that 9 generalized grievances are insufficient to establish standing. l O Here, Mr. Nicholson fails to present any evidentiary facts to show that he suffers an 11 injury that is immediate, concrete, and specific to himself as a result of The Landing Site Plan. 12 Instead, Mr. Nicholson relics on generalized assertions of injury that could be raised by any 13 citizen of the City or, indeed, any member of the public. 14 Furthermore, Mr. Nicholson's supposed "injuries" could not possibly arise from the 15 Site Plan Approval. For example, Mr. Nicholson continues to state that he is harmed by the 16 "unanalyzed and unmitigated traffic impacts caused by the project," and goes to great lengths 17 to show that his preferred commute route takes him through The Landing site. Motion for 18 Declaratory Ruling, at 7; Nicholson Declaration, at 1-2. However, such a claim has no direct 19 link whatsoever to the source of these appeals -the approval of The Landing's Site Plan. Mr. 20 Nicholson and ASE previously had an opportunity to appeal the infrastructure improvements 21 in The Landing, when the City's infrastructure improvements for The Landing were 22 designated as a planned action. Had Mr. Nicholson appealed that designation, he arguably 23 would have had standing based on his alleged harm of increased traffic. However, not only 24 did Mr. Nicholson fail to appeal the infrastructure improvements designation, but ASE 25 withdrew its appeal of that designation. 26 27 28 Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 7 of9 HILLIS CLARK MARTIN & PEHRSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Mr. Nicholson's attempt to assert standing based upon these supposed injuries, in the 2 context of the Site Plan, is therefore untimely. His claims of unmitigated traffic impacts, 3 unanalyzed environmental impacts, or flaws in the overall project concepts, do not arise from 4 the Site Plan Approval. These claims are therefore inappropriate for this appeal, and any 5 assertion of standing on the basis of these claims is inappropriate and insufficient to establish 6 standing for this appeal. Examination of all of the asserted justifications for standing, by 7 Mr. Nicholson and ASE, reveals that not one of the supposed injuries in fact actually arises 8 from The Landing's Site Plan Approval. ASE and Mr. Nicholson are simply trying to 9 collaterally attack The Landing's master plan, planned action designation, or infrastructure Io improvements designations, probably because those previous appeals were never filed, 11 withdravm, or dismissed due to ASE's own errors. Such a collateral attack is not permitted. 12 See Habitat Watch v. Skagit County, 155 Wn.2d 397,411, 120 P.3d 56 (2005). 13 IV. CONCLUSION 14 Appellants' request that the Examiner issue a "declaratory ruling" regarding 15 Appellants' standing is beyond the scope of the Examiner's jurisdiction and authority. 16 Furthermore, notwithstanding Appellants' attempts to supplement the record with amended 17 bylaw excerpts and additional declarations, ASE has nevertheless failed to establish 18 associational standing to bring this appeal on behalf of its member. Finally, Mr. Nicholson, 19 the sole named member of ASE, continues to base his alleged standing on generalized 20 grievances, without any evidence of particularized harm arising out of the Site Plan Approval, 21 and thus has not established that he has standing to bring these appeals. 22 For the reasons set forth herein, Applicant hereby requests that Appellants' Motion for 23 Declaratory Ruling Regarding Standing be DENIED. 24 II 25 II 26 II 27 II 28 Response lo Appellants' Motion.for Declaratory Ruling Regarding Standing-Page 8 of9 HILLIS CLARK MARTIN & PET>:RSO'J, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.6231745; fax 206.623.7789 2 3 4 5 6 7 8 9 ·, . -/T) DATED this :"J(o day of January, 2007. HILLIS CLARK MARTIN & PETERSON, P.S. __ / () By .l.r'.l ~1, a, Jerome L. .Iii s, WSBA #1704 T. Ryan Dur an, WSBA #11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners l O #345979 18449-004 7#yj0 I I.doc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re.1ponse to Appellants' Motion for Declaratory Ruling Regarding Standing-Page 9 o/9 HlLLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101 -2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeal of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval. No. LUA-06-071, SA-A CERTIFICATE OF SERVICE 12 I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson, 13 P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 9810 I. I hereby certify that 14 on the 26 1 h day of January 2007, I caused to be delivered via legal messenger a true and 15 correct copy of Applicant Harvest Partner5· (]) Response to Appellants Motion for 16 Declaratory Ruling Regarding Standing; (2) Response to Appellants' Motion to Remand 17 Site Plan Approval; and (3) this Certificate of Service to the following: 18 19 20 21 22 23 24 25 26 27 28 Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 Lawrence J. Warren, City Attorney Warren Barber & Fontes, P.S. I 00 South Second Street Renton, WA 98057 Brad Nicholson c/o Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Office of the Clerk City of Renton 1055 South Grady Way Renton, WA 98055 Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 HILLIS CLARK MARTIN & PETERSON, P.S. Certificate of Service -Page 1 of 2 . )RIGINAL 500 Galland Building, 1221 Second Ave Sealtle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED this 2.L, -th day of January, 2007. #34540 I 18449-004 7#$h011.doc 1126107 Certificate of Service -Page 2 of 2 HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. Pan Legal Assistant to T. Ryan Durkan H11.1.1s CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • CITY OF RENTON JAN 2 6 2007 RECEIVED CITY CLERK'S OFFICE ~ 3.'/2 f'A1 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End ( ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretation/Policy Decision LUA-06-071, SA-A APPLICANT'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL I. INTRODUCTION The City of Renton was founded over a century ago and was initially known for industrial uses such as coal mining, logging and brick making. Since the l 940's when Boeing built a factory in Renton, the city's economic fortunes have been tied to airplane manufacturing. With the rise of the global economy, Boeing began to geographically diversify its operations. Renton wisely determined that it also needed to plan for diversification. Accordingly, it adopted a Comprehensive Plan, development regulations, and Planned Action Ordinance in order to provide for the transition of surplus industrial Boeing land into a new mixed-use development that would evolve over time to serve as a retail center to the region. Consistent with the City's plans and new vision for the area, it has granted certain approvals to Applicant Harvest Partners' project, The Landing. With construction of The Landing, property formerly used by Boeing will begin to be remade into the progressive heart of an emerging neighborhood on the southern tip of Lake Washington. The Landing will provide an urban neighborhood with retail, entertainment, and restaurant uses and associated Response to Appellants· Motion to Remand Site Plan Approval -Page I o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 parking in the City of Renton, Washington. Under the City's tiered development review, 2 Applicant's Master Plan for The Landing was approved in May 2006, and Site Plan Approval 3 for The Landing occurred in August 2006. 4 As the Examiner is aware from previous litigation concerning The Landing, Westfield 5 Southcenter, a competing shopping mall, apparently feels threatened by the City ofRenton's 6 plans for retail growth. Although it did not appeal the City's Comprehensive Plan or Planned 7 Action Ordinance, it is seeking to stop those plans from being realized now that s implementation is occurring. This case involves the latest in a series of appeals. Specifically, 9 on August 31, 2006, Appellant Alliance for South End ("ASE"), the front group funded by 10 Westfield Southcenter, and Appellant Brad Nicholson, a member of ASE,1 filed an appeal of 11 The Landing Site Plan Approval. 12 At a pre-hearing conference before the City of Renton Hearing Examiner, the 13 Examiner established a briefing period for the parties to exchange pre-hearing jurisdictional 14 motions. On January 12, 2007, Appellants filed a "Motion to Remand Site Plan Approval," 15 requesting that the Examiner remand the Site Plan Approval for The Landing. Applicant 16 brings this Response to Appellants' Motion to Remand. For the reasons set forth below, the 17 Examiner should deny Appellants' motion. 18 19 20 21 22 23 24 25 26 27 28 A. II. STATEMENT OF FACTS Planned Action Designation and Master Plan Approval 1. The City has Adopted a Planned Action Ordinance for The Landing Site, and Designated The Landing as a Planned Action. On November 15, 2004, following public notice, opportunity for public comment and a public hearing on the proposed ordinance, the Renton City Council adopted Ordinance 5107 1 Due to Mr. Nicholson's failure to perfect his appeals, Applicant has argued that Mr. Nicholson is not a proper party to these appeals. See Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing; and Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction, both on record with the Examiner. Because those motions are still pending, Applicant will address both ASE and Mr. Nicholson as "Appellants" in this Response. Response to Appellants' Motion to Remand Site Plan Approval -Page 2 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 designating a planned action (the "Planned Action Ordinance" or "PAO"). The Planned 2 Action area was specified as the approximately 55-acre area of property located East of the 3 Boeing manufacturing operations between Logan Avenue North to the West, Garden 4 Avenue North to the East, and North 8th Street to the South (the "Planned Action Area"). 5 The Landing is within the Planned Action Area. 6 Under the Planned Action Ordinance, once the Director has determined that a specific 7 project application meets the criteria of WAC 197-11-172 and the PAO, the Director then g designates the project application as a Planned Action. The effect of such a designation is that 9 the project is not subject to further environmental review. 10 On May 12, 2006, the City of Renton Development Services Division designated The 11 Landing Master Plan project application as a Planned Action. Because The Landing met the 12 criteria for a Planned Action, no further environmental review was necessary. 13 ASE appealed the Planned Action designation to the City of Renton Hearing 14 Examiner. The Examiner dismissed ASE's appeal for lack of standing. 15 2. The City has Approved the Master Plan for The Landing. 16 On May 19, 2006, the City of Renton Department of Planning, Building and Public 17 Works issued a decision approving the Master Plan for The Landing. ASE appealed the 18 Master Plan approval to the Examiner. The Examiner dismissed ASE's appeal for lack of 19 standing. 20 B. ASE Appeals the City of Ren ton's Approval of The Landing Site Plan 21 On August 17, 2006, the City of Renton Department of Planning, Building and Public 22 Works issued a decision approving the Site Plan for The Landing, including approximately 23 572,700-square feet of commercial and retail development to be constructed on a 38.22-acre 24 site within the Urban Center-North 1 (UC-Nl) zone (the "Site Plan Approval").2 25 26 27 2 The master plan approval and planned action designation for The Landing encompassed a larger site than is the subject of the Site Plan Approval. For purposes of this appeal, "The Landing" is defined to include only 28 the development and site approved in the Site Plan Approval. Response to Appellants' Motion to Remand Site Plan Approval -Page 3 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 On August 31, 2006, Appellants filed an appeal of the Site Plan Approval. On 2 January 12, 2007, Appellants filed a Motion to Remand Site Plan Approval, requesting that 3 the Examiner rule that The Landing Site Plan "does not comply with the City's development 4 regulations and Comprehensive Plan" and remand the Site Plan Approval for further 5 proceedings. Motion to Remand, at 2. 6 C. Appellants Stipulate as to Certain Portions of The Landing 7 In December 2006, Appellants signed a stipulation so that their appeals, including 8 their appeal of the Site Plan Approval, would not pertain to and would have no effect upon 9 certain portions of Quadrant C in The Landing. Quadrant C, the southeast quadrant of The 1 o Landing project, will include a Target store and its associated roads, driveways, access ways, 11 utilities, street improvements, drive aisles, parking and loading. The parties filed a stipulation 12 with the Examiner pertaining to these vested developments (the "Stipulation"). 13 14 15 16 17 18 19 20 21 22 23 24 A. III. ARGUMENT Appellants' Substantive Arguments are Inappropriate for a Pre-Hearing Motion and Should be Reserved for a Hearing on the Merits. Appellants in their Motion to Remand attempt to incorporate numerous substantive arguments that are inappropriate for pre-hearing motions. Specifically, Part IV.A of Appellants' Motion to Remand, titled "The Site Plan Does Not Comply With the City's Land Use Regulations," and Part IV.B of Appellants' Motion to Remand, titled, "The Landing's Proposed Site Plan Fails to Conform to the City's Comprehensive Plan, which in Renton has regulatory effect," contain arguments on the merits that can only properly be addressed at a hearing. Motion to Remand, at 3-5. Such arguments should therefore be reserved for the hearing (if the appeals are not dismissed), and cannot be the basis for granting Appellants' requested relief. 25 B. Even Though Inappropriate for Pre-Hearing Motions, Appellants' Arguments are Incorrect. 26 27 28 Although Appellants' arguments in Part IV.A and Part IV.B are improper at this stage of the appeals, Applicant has provided brief responses to the arguments below. Should a Response to Appellants· Motion to Remand Site Plan Approval -Page 4 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 hearing on these appeals occur, Appellants will be required to present evidence sufficient to 2 meet their burden of proof as to each of their claims. In such event, Applicant is prepared to 3 expand upon each of the responses below. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ]. There are no violations arising from proximity to pedestrian-oriented streets. a. The streets cited are not designated pedestrian-oriented streets. Many of the alleged violations identified by Appellants relate to the proximity of buildings or parking areas to "pedestrian-oriented streets." These alleged violations are depicted on Exhibits A, B, C, D, E, and G to Appellants' Motion to Remand. Appellants' arguments appear to be based on an assumption by Appellants that the entirety of Park Avenue North, North 8th Street, and North I 0th Street in The Landing are "pedestrian- oriented streets." See Motion to Remand, at 3. This assumption is incorrect. The City of Renton has officially designated certain streets as "arterials." RMC 4-2-080.E. For example, within The Landing, the designated arterials are Park Avenue North, North 8th Street between Park Avenue North and Garden Avenue North, and Garden Avenue North. Id. The City appears to have no formal designation of streets as "pedestrian- oriented streets." Appellants cite to no provision in the Renton Municipal Code establishing Park Avenue North, North 8th Street, or North 10th Street as pedestrian-oriented streets. No such provision exists. Thus, there can be no code violation. This is not to say that Applicant did not seek to incorporate pedestrian-oriented design concepts into The Landing, and indeed sought to make some of the arterials more pedestrian friendly, especially the northern part of Park Avenue. The Site Plan decision for The Landing addresses the hierarchy of street types within The Landing, and characterizes North 10th Street and the northern portion of Park Avenue North as "pedestrian-oriented streets." See Site Plan decision, attached as Exhibit A to Appellants' Notice of Appeal of Administrative Site Plan Approval, at 10. However, absent an official designation of North 8th Street or the southern portion of Park Avenue North as pedestrian-oriented streets, nearly all of Response to Appellants' Motion to Remand Site Plan Approval -Page 5 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Appellants' arguments reflected in its Motion to Remand, Exhibits A, B, C, D, E, and G, are 2 ill-founded. 3 b. Modifications to development standards were approved. 4 The Renton Municipal Code grants the City's Planning/Building/Public Works 5 Department the ability to grant modifications from the Renton Municipal Code standards 6 when there are "practical difficulties in carrying out the provisions of the Renton Municipal 7 Code." RMC 4-9-250.D. Where the overall intent of the standards was met, the Director 8 permitted certain modifications from the Renton Municipal Code standards. For example, the 9 Director permitted a modification to the design standards relating to parking between IO buildings and streets, finding that the proposed Site Plan "complied with the intent of the 11 design regulations through the creation of a retail development with pedestrian-oriented 12 elements." Site Plan decision, at 10. The Director also permitted a modification to the design 13 standards relating to the location of surface parking lots, based on "the project's ability to 14 maintain an active pedestrian environment and the consolidation of surface parking areas for 15 future retail and structured parking development." Site Plan decision, at 12. !fa hearing 16 occurs, and if Appellants present evidence to meet their burden of proof, Applicant is 17 prepared to demonstrate that the evidence in the record sustains the Director's decision. 18 19 20 21 22 23 24 25 26 27 28 2. There are no violations of unscreened loading dock standards. Appellants argue that the Site Plan fails to screen certain loading docks from view, as required by RMC 4-2-120.E. Motion to Remand, at 4 and Exhibit F. Appellants apparently failed to notice the provision regarding "Screening for outdoor loading" in the same code section. RMC 4-2-120.E. This provision references RMC 4-4-095, which states that screening for outdoor loading in commercial zones is not required except when the commercial lot is adjacent to a residentially-zoned lot. The commercial lots in question here are not adjacent to residentially-zoned lots. Therefore, under the Renton Municipal Code, and contrary to Appellants' allegations, screening of the loading docks is not required. Response to Appellants' Motion to Remand Site Plan Approval -Page 6 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ]7 18 19 20 2] 22 23 24 25 26 27 28 3. There are no violations of setback requirements. Appellants argue that certain buildings within The Landing exceed the maximum setbacks required by the Renton Municipal Code. However, as set forth in the City's Site Plan decision, the Director of Development Services issued a Determination stating that the maximum front yard and side yard along street setbacks may be altered through the Site Plan Review Process. Site Plan decision, at 5. In analyzing the proposed setbacks in The Landing Site Plan, the Director examined the purpose behind maximum setbacks, which is to foster a "pedestrian-oriented development." Id. The Landing incorporates numerous pedestrian- oriented elements, including pedestrian pathways, street furnishing, and a private internal street. Id. Therefore, given the overall pedestrian-oriented environment, and in accordance with the Director's Determination, the City approved the proposed setbacks. Id. 4. There are no violations of Comprehensive Plan provisions. Appellants' Motion to Remand includes a laundry list of alleged violations of the City's Comprehensive Plan. Motion to Remand, at 4-5. Not only do Appellants' abstract, general assertions lack any factual support, but many of them were previously addressed in the Director's Site Plan decision. Should a hearing on these appeals occur, Appellants will carry the burden of presenting evidence to support their allegations regarding the supposed Comprehensive Plan violations. In such event, Applicant is prepared to respond with evidence clearly supporting The Landing Site Plan's compliance with Comprehensive Plan policies and objectives. For example, the overall intent of the Comprehensive Plan policies was to create a regional retail center. See, e.g., LU-272. The fact that Westfield Southcenter feels economically threatened and compelled to appeal The Landing shows that the Comprehensive Plan vision of Renton as a viable economic retail center is close to being realized. Also, Appellants' main argument seems to be that the development is not urban; yet, there can also be no doubt that The Landing is urban in nature. The overall urban experience will be one that will enable residents and visitors to park, shop, dine, and see a movie, all in one center. Moreover, under the Growth Management Act, the density proposed would only be allowed in an urban area and would not be allowed in a rural area. Finally, it should be Response to Appellants' Motion to Remand Site Plan Approval -Page 7 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 remembered that The Landing Site Plan is the first phase of development that will occur over 2 time. As can been seen with other shopping malls like University Village in Seattle, infill 3 development can occur over time to make the development even more urban in nature. In fact, 4 infill development over time is expressly contemplated by the Comprehensive Plan. 5 See, e.g., LU-285. 6 C. A Public Hearing Was Not Required. 7 Appellants argue that the Site Plan Approval was improper because a public hearing 8 was not held on The Landing Site Plan. However, according to the Renton Municipal Code, a 9 public hearing on a site plan is not required when a master plan has already been approved: 1 o "Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be 11 submitted and approved administratively without a public hearing." RMC 4-9-200.D. l .a. 12 Here, the City approved The Landing's Master Plan in May 2006. Therefore, a public hearing 13 was not required prior to the Site Plan Approval. Furthermore, because a public hearing was 14 not required, administrative approval of the Site Plan, rather than approval by the Examiner, 15 was proper. Id.; see also RMC 4-9-200.G.12. 16 D. The Wal-Mart Decision is Irrelevant. 17 Appellants attempt to insert scare tactics into their Motion to Remand with a 18 discussion ofa recent case involving a Wal-Mart store in Chelan County, Washington. 19 However, the Chelan County trial court decision has absolutely no precedential value in the 20 case at hand. Furthermore, any arguments made on the basis of that decision are entirely 21 speculative given the procedural posture. Because Appellants' discussion regarding Wal- 22 Mart is completely irrelevant, no response is merited. 23 24 25 26 27 28 E. Where Appellants' Arguments Implicate the Stipulation, No Relief Can Be Granted. While many of Appellants' arguments on the merits are inappropriate for these pre- hearing motions, as discussed above in Part III.A, it should also be noted that the Examiner will be unable to grant Appellants' requested relief as to certain portions of Appellants' appeals. This is due to the fact that portions of Appellants' appeals implicate the Stipulation. Response to Appellants' Motion to Remand Site Plan Approval -Page 8 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Therefore, as to those alleged violations within Quadrant C of The Landing, as depicted on 2 Appellants' Motion to Remand Exhibits A, B, C, F, G, and H, the Examiner is unable to grant 3 Appellants' requested relief, and such claims should be dismissed. 4 IV. CONCLUSION 5 Appellants' Motion to Remand largely contains arguments are on the merits, and 6 should be reserved for the hearing, if it occurs. Nevertheless, as addressed above, Appellants' 7 substantive arguments are incorrect under the Renton Municipal Code. 8 For the reasons set forth herein, Applicant hereby requests that Appellants' Motion to 9 Remand Site Plan Approval be DENIED. IO DATED this rJ(7 711 dayofJanuary, 2007. l l 12 13 14 15 16 17 18 19 #346026 18449-004 7#z%01 !.doc 20 21 22 23 24 25 26 27 28 Response to Appellants' Motion to Remand Site Plan Approval -Page 9 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. By~_L____..::,,~~Lli~~~~:1,,__~ Jerome L. ill" , WSBA # 1704 T. Ryan Dur an, WSBA # 11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretation/Policy Decision LUA-06-071, SA-A APPLICANT'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING REGARDING ST ANDING I. INTRODUCTION Appellant Alliance for South End ("ASE"), a front group funded by a competing shopping mall, and Appellant Brad Nicholson, a member of ASE, have filed two appeals related to the Site Plan Approval for Applicant Harvest Partners' project, The Landing.1 These appeals represent "Round 2" of appeals by ASE, with "Round l" being ASE' s previous appeals of The Landing's master plan approval and The Landing's planned action designation. In September 2006, the City of Renton Hearing Examiner dismissed both of AS E's Round 1 appeals due to ASE's lack of standing to bring the appeals on behalf of Mr. Nicholson. Fearing that Round 2 might also be dismissed for lack of standing, ASE and Mr. Nicholson have attempted to remedy their past errors by providing amended "excerpts" from 1 Due to Mr. Nicholson's failure to perfect his appeals, Applicant has argued that Mr. Nicholson is not a proper party to these appeals. See Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing: and Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction, both on record with the Examiner. Because those motions are still pending, Applicant will address both ASE and Mr. Nicholson as the "Appellants" in this Response. Response to Appellants' Motion/or Declaratory Ruling Regarding Standing-Page 1 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 ASE's Bylaws, all in an effort to demonstrate that changed conditions merit a finding of 2 standing. In addition, on January 12, 2007, Appellants filed a "Motion for Declaratory Ruling 3 Regarding Standing," requesting that the Examiner issue a "declaratory ruling" confirming 4 that the Appellants have standing in these appeals. Applicant brings this Response to 5 Appellants' Motion for Declaratory Ruling. The Examiner should deny Appellants' motion. 6 II. STATEMENT OF FACTS 7 Applicant incorporates by this reference the Statement of Facts from its Motion To 8 Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval 9 For Lack of Standing. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. III. ARGUMENT The Hearing Examiner Does Not Have Jurisdiction to Issue a Declaratory Ruling. 1. The Examiner's jurisdiction is established by Renton Municipal Code and does not extend to issuing declaratory rulings. Appellants' Motion for Declaratory Ruling requests the following relief from the Examiner: Appellants respectfully request that the Hearing Examiner issue a declaratory ruling confirming that Brad Nicholson and ASE have standing to proceed with their appeals of the Director's Site Plan Decision and the Director's Setback Decision. Motion for Declaratory Ruling, at 12. The Examiner's jurisdiction is established by code. Renton Municipal Code (RMC) 4-8-070.H. The Renton Municipal Code grants the Examiner the authority to review certain specific administrative actions and land use approvals. Id. Appellants cite no authority, in the Renton Municipal Code or otherwise, to support the Examiner's ability to issue such a declaratory ruling. Even if there is such authority, the declaratory ruling on standing is unnecessary because Applicant has moved for dismissal for lack of standing, as discussed below. Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 2 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. A declaratory ruling is unnecessary and inappropriate procedurally. The parties are currently exchanging pre-hearing jurisdictional motions. Appellants' Motion for Declaratory Ruling is not framed as a jurisdictional motion, and Appellants cite no authority, in the Renton Municipal Code or otherwise, to establish a procedural basis for such a "declaratory" motion. 2 Furthermore, Appellants fail to elaborate on the standard of review for such a "declaratory ruling," providing only a statement that a declaratory ruling would "avert further delay" in the appeals. Motion for Declaratory Ruling, at I. Applicant has already filed motions to dismiss these appeals for lack of standing. Therefore, Appellants' apparent concern with having standing determined prior to the hearings will be addressed without the need for a declaratory ruling. B. ASE Lacks Associational Standing. ]. ASE previously failed to meet its burden of proof. In order to appeal an administrative decision, an appellant must have standing. RMC 4-8-110.E.3.b. A party asserting standing bears the burden of establishing the elements of standing. See Concerned Olympia Residents for the Environment (C.O.R.E.) v. City of Olympia, 33 Wn. App. 677,683,657 P.2d 790 (1983). The appellant must demonstrate an injury in fact, and must also show that its allegedly endangered interest is within the "zone of interest" to be protected or regulated. Trepanier v. City of Everett, 64 Wn. App. 380, 382-83, 824 P .2d 524 (1992). An association only has standing to bring suit on behalf of its members if its members would otherwise have standing to sue in their own right. lnt 'l Ass 'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P .3d 186 (2002). In determining whether associational standing exists, the U.S. Supreme Court has looked to whether the alleged "members" of an association possess certain "indicia of membership" in the organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333, 344-45 (1977). This 27 2 If Appellants are attempting in this motion to trigger review under the Uniform Declaratory Judgments Act, RCW 7.24, this attempt has failed as Appellants have established no ties to the statutory language and 28 criteria for such judgments. Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 3 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 analysis often turns upon whether the individuals making up the association have the ability to 2 guide the association's actions or exert control over the association's directors. See, e.g., 3 Friends a/Tilden Park v. Dist. a/Columbia, 806 A.2d 1201, 1208 (D.C. 2002). By focusing 4 on whether the association possesses the necessary attributes for standing, courts are able to 5 analyze whether the alleged "member" actually has control, or is merely a puppet for other 6 interests. 7 Applying the associational standing test to Round I of the ASE appeals, the Examiner 8 determined that ASE had not met its burden of proof to establish standing. Hearing Examiner 9 Decision, at 8.3 The Examiner considered the level of control that Mr. Nicholson had in the 1 o organization, asking "Who is driving the car?" for ASE. Hearing Examiner Decision, at 4. 11 Based on the evidence in the record, including an undated, unsigned "excerpt" supposedly 12 from the ASE Bylaws, the Examiner determined that Mr. Nicholson, the sole named member 13 of ASE, lacked any meaningful control in the organization. Hearing Examiner Decision, at 5. 14 Therefore, the Examiner held, ASE failed in demonstrating associational standing: "Here we 15 have an organization in which no member can call the shots ... This office finds that ASE does J 6 not have standing. It is a mere shell created by the applicant's potential competitor, 17 Southcenter/Westfield for the purpose of thwarting a competitor's proposed development." 18 Hearing Examiner Decision, at 8. 19 2. ASE's additional evidence is still insufficient to establish standing. 20 In an effort to avoid the outcome of Round I, ASE has attempted to supplement the 21 record with additional evidence in Round 2 to establish its associational standing. ASE's 22 Motion for Declaratory Ruling includes a Declaration by Mr. Nicholson, as well as a new 23 "excerpt" from the amended ASE Bylaws. Once again, the "excerpt" is undated and 24 unsigned. See Nicholson Declaration, at Exhibit D. 25 26 27 1 A copy of the Hearing Examiner's Decision was attached as Exhibit B to Applicant's Motion To Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval For Lack of Standing, on file 28 with the Examiner. Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 4 of 9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 l l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 According to Mr. Nicholson's Declaration, he now holds the position of"Vice President" and "Secretary" of ASE, and also has the role of taking minutes and keeping "corporate records." Nicholson Declaration, at 2. Furthermore, ASE has now allegedly "made a practice" of consulting with its members prior to litigation decisions. Motion for Declaratory Ruling, at 2-3. Interestingly, Mr. Nicholson appears to believe he possesses a greater level of control over ASE than actually exists. According to Mr. Nicholson's Declaration, ASE has adopted a "policy" by which the ASE Director will "consult" with members prior to litigation, and "The corporation shall carry out the directions of the members." Although Mr. Nicholson states that the ASE Bylaws have been amended to "formalize its members' control over the direction of the corporation," the last line of the "policy," giving the members control over the ASE directors, is noticeably absent from the ASE Bylaws. According to Section 2. 7 of the amended ASE Bylaws, the role of the members is still quite limited: Section 2.7 Consultation with Members Regarding Major Decisions. The board of directors shall advise and seek input from the Members in advance of all major decisions concerning appeals, litigation or settlement of claims. Nicholson Declaration, at Exhibit D. It is the Bylaws, not the "policy," that form the basis for ASE's corporate governance. According to the ASE Articles oflncorporation, the ASE Bylaws establish the qualification for membership, the powers of the corporation, and the powers of the directors of ASE. See Nicholson Declaration, at Exhibit C. Therefore, as evidenced by the ASE Bylaws, the role of the members within the ASE organization has changed very little since Round 1. The directors still "advise" the members, and are merely required to "seek input" from the members prior to major decisions. Mr. Nicholson might have a new role taking minutes for ASE, or keeping ASE's corporate records, but such activities are irrelevant for the key inquiry: "Who is driving the car?" ASE is still funded and controlled by Westfield, and is still represented by Westfield's law firm, Buck & Gordon. Mr. Nicholson, a member whose primary right is to be "consulted" prior to ASE's major decisions, is not driving the car. Response to Appellants' Motion for Declaratory Ruling Regarding Standing-Page 5 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 The Examiner must determine if ASE has carried its burden to establish associational 2 standing based on the evidence provided in the record. ASE has failed to produce evidence to 3 support its associational standing. There remains no evidence whatsoever that ASE is 4 controlled by a member with standing. 5 3. ASE has not met its burden to show injury in fact. 6 Even if ASE was able to demonstrate that it had associational standing to bring this 7 appeal on behalf of its members, the association also bears the burden of establishing that its 8 members meet the elements of standing. As detailed in Part III.C below, neither ASE nor Mr. 9 Nicholson has presented evidence to demonstrate that Mr. Nicholson has suffered or will 10 suffer a concrete, particularized injury arising out of The Landing's Site Plan Approval. By 11 failing to present any evidence of injury in fact to its member, ASE has failed to establish 12 standing. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Mr. Nicholson Lacks Standing. ]. Mr. Nicholson's harm must arise from the Site Plan Approval Standing must be established as to each and every claim. See DaimlerChrysler Corp. v. Cuna, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted."). Therefore, in order to establish standing, ASE and Mr. Nicholson must demonstrate that they have suffered or will suffer a direct, concrete, particularized injury in fact arising out of the Site Plan Approval. Any assertions of standing based upon the overall project concepts or environmental impacts - including those such as traffic, water quality, aesthetics or any other "impact" related to the master plan review and environmental review stages -are insufficient to establish standing for purposes of this appeal. Here, there is no relationship between Mr. Nicholson and the challenged action such that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could he possibly assert, that he is directly damaged in any way by the Site Plan Approval. The Response to Appellants' Motion for Declaratory Ruling Regarding Standing-Page 6 o/9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 supposed basis for Mr. Nicholson's alleged hann is simply too remote and indirect to the Site 2 Plan to establish standing, as discussed below. 3 2. Mr. Nicholson has not met his burden to show injury in fact. 4 To establish standing, the appellant bears the burden of demonstrating that he will be 5 specifically and perceptibly hanned by the challenged action of approving the detailed 6 arrangement of The Landing Site Plan; in other words, the appellant must show a "direct 7 stake" in the Site Plan Approval. C.O.R.E., 33 Wn. App. at 684 (1983). The requirement that 8 the appellant demonstrate his "direct stake" in the controversy consequently means that 9 generalized grievances are insufficient to establish standing. 1 O Here, Mr. Nicholson fails to present any evidentiary facts to show that he suffers an 11 injury that is immediate, concrete, and specific to himself as a result of The Landing Site Plan. 12 Instead, Mr. Nicholson relies on generalized assertions of injury that could be raised by any 13 citizen of the City or, indeed, any member of the public. 14 Furthennore, Mr. Nicholson's supposed "injuries" could not possibly arise from the 15 Site Plan Approval. For example, Mr. Nicholson continues to state that he is hanned by the 16 "unanalyzed and unmitigated traffic impacts caused by the project," and goes to great lengths 17 to show that his preferred commute route takes him through The Landing site. Motion for 18 Declaratory Ruling, at 7; Nicholson Declaration, at 1-2. However, such a claim has no direct 19 link whatsoever to the source of these appeals-the approval of The Landing's Site Plan. Mr. 20 Nicholson and ASE previously had an opportunity to appeal the infrastructure improvements 21 in The Landing, when the City's infrastructure improvements for The Landing were 22 designated as a planned action. Had Mr. Nicholson appealed that designation, he arguably 23 would have had standing based on his alleged harm of increased traffic. However, not only 24 did Mr. Nicholson fail to appeal the infrastructure improvements designation, but ASE 25 withdrew its appeal of that designation. 26 27 28 Response to Appellants' Motion for Declaratory Ruling Regarding Standing-Page 7 of9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Mr. Nicholson's attempt to assert standing based upon these supposed injuries, in the 2 context of the Site Plan, is therefore untimely. His claims ofurunitigated traffic impacts, 3 unanalyzed environmental impacts, or flaws in the overall project concepts, do not arise from 4 the Site Plan Approval. These claims are therefore inappropriate for this appeal, and any 5 assertion of standing on the basis of these claims is inappropriate and insufficient to establish 6 standing for this appeal. Examination of all of the asserted justifications for standing, by 7 Mr. Nicholson and ASE, reveals that not one of the supposed injuries in fact actually arises 8 from The Landing's Site Plan Approval. ASE and Mr. Nicholson are simply trying to 9 collaterally attack The Landing's master plan, planned action designation, or infrastructure 1 o improvements designations, probably because those previous appeals were never filed, 11 withdrawn, or dismissed due to ASE's own errors. Such a collateral attack is not permitted. 12 See Habitat Watch v. Skagit County, 155 Wn.2d 397,411, 120 P.3d 56 (2005). 13 IV. CONCLUSION 14 Appellants' request that the Examiner issue a "declaratory ruling" regarding 15 Appellants' standing is beyond the scope of the Examiner's jurisdiction and authority. 16 Furthermore, notwithstanding Appellants' attempts to supplement the record with amended 17 bylaw excerpts and additional declarations, ASE has nevertheless failed to establish 18 associational standing to bring this appeal on behalf of its member. Finally, Mr. Nicholson, 19 the sole named member of ASE, continues to base his alleged standing on generalized 20 grievances, without any evidence of particularized harm arising out of the Site Plan Approval, 21 and thus has not established that he has standing to bring these appeals. 22 For the reasons set forth herein, Applicant hereby requests that Appellants' Motion for 23 Declaratory Ruling Regarding Standing be DENIED. 24 II 25 II 26 II 27 11 28 Response to Appellants' l'v!otion for Declaratory Ruling Regarding Standing -Page 8 of 9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 .··, . 7/J DATED this .xr:-1 day of January, 2007. HILLIS CLARK MARTIN & PETERSON, P.S. '- By { , Jerome L. ii s, WSBA # 1704 T. Ryan Dur an, WSBA #11805 Karen D. Breckenridge, WSBA #36666 Attorneys for Applicant Harvest Partners 10 #345979 18449-004 7#yJ0l !.doc I I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Response to Appellants' Motion for Declaratory Ruling Regarding Standing -Page 9 of 9 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 s 6 7 8 9 10 11 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeal of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Site Plan Approval. No. LUA-06-071, SA-A CERTIFICATE OF SERVICE 12 I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson, 13 P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. I hereby certify that 14 on the 26 1h day of January 2007, I caused to be delivered via legal messenger a true and 15 correct copy of Applicant Harvest Partners (1) Response to Appellants Motion/or 16 Declaratory Ruling Regarding Standing; (2) Response to Appellants' Motion to Remand 17 Site Plan Approval; and (3) this Certificate of Service to the following: 18 19 20 21 22 23 24 25 26 27 28 Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 Lawrence J. Warren, City Attorney Warren Barber & Fontes, P.S. 100 South Second Street Renton, WA 98057 Brad Nicholson c/o Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Certificate a/Service -Page 1 o/2 Office of the Clerk City of Renton 1055 South Grady Way Renton, WA 98055 Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • DATED this 2.t, -!k day of January, 2007. #345401 18449-004 7#$h01Ldoc 1/26/07 Certificate of Service -Page 2 of 2 HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. Pan Legal Assistant to T. Ryan Durkan HlLLlS CLARK MARTtN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 \ ' 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 HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of ) ) Alliance for South End (ASE) and ) LUA-06-071, SA-A Brad Nicholson re: ) ) DECLARATION OF BRAD The Director's Administrative Site Plan Approval) NICHOLSON ) and ) ) The Director's Administrative ) Interpretation/Policy Decision j I, Brad Nicholson, do hereby declare as follows: 1. I was born in Renton 47 years ago and have lived in Renton my whole life. 2. I currently reside in and own my home at 2811 Dayton Avenue Northeast in Renton, Washington, less than two miles from the site of The Landing project. I am employed by Boeing as a machinist and worlc at Boeing's facility located at 7755 East Marginal Way South. My route of travel between home and work often takes me along streets directly adjacent to and through The Landing site. 3. The Applicant for The Landing has questioned this route, arguing that "it is not credible to believe that he would drive out of his way to take this route from his home to work in Seattle." See excerpt from Applicant's Reply Memorandum, a true and correct copy of which is attached hereto as Exhibit A. In response, I have prepared a map showing my exact routes of travel between home and worlc. See Route Map, a true and correct copy of which is attached hereto as Exhibit B. Like most commuters, I use several different routes depending on traffic conditions, daily errands, and other factors that vary from day to day. I have learned from experience that these are the quickest routes from my home to work. I prefer to avoid I-405, but circumstances sometimes force me to use the freeway. The route that takes me along Parle Avenue, which runs through The Landing site, seems to be the shortest route. That route is currently inaccessible due to construction relating to infrastructure work for The Landing. I have used this route in the past and hope to do so in the future. In the meantime, I am suffering commuting delays due to my ECLARA TION OF BRAD NICHOLSON -1 :\WP\ASE\SITE PLAN APPEALINICHOLSON DECLAR.ATION OI 1206.D0C Bucke Gordon LLP 2025 Rm Avl!lt'ltle, Suite 500 Seattli!, WA 98121 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 inability to use this route. If there is any doubt about the accuracy or wisdom of these routes, the Applicant is welcome to ride along with me before or after work. I would also welcome any informed suggestions from the Applicant about how I might save time commuting to and from work. Navigating the traffic problems in Renton can be extremely challenging, especially anywhere near the on-ramps and off-ramps to SR-900 and 1-405 - even without The Landing. 4. I have a longstanding interest in the land use decisions of the City of Renton and have participated extensively in public hearings and proceedings regarding The Landing site, including filing a Petition for Review before the Growth Management Hearings Board of the City's decision to rezone this property (filed on September 6, 2003) and appealing the City's approval for the Boeing Renton Comprehensive Plan Amendment Environmental Impact Statement ("BRCP A EIS''). 5. The Landing proponents have identified their marl:et area. My house is 2 miles away from The Landing, within their 3-mile radius -clearly a proximity where their own documents show a strong connection between the project and residents. 6. I participated in discussions in the spring of 2006 regarding the formation of a nonprofit to represent citizens concerned about The Landing and encouraged that approach, which resulted in the incorporation of the Alliance for South End (ASE). 7. I am contributing funds to ASE and expect to continue to do so in the future. ASE has other members who I expect will similarly help with funding. I personally know the other members of ASE. They are Renton residents who are similarly situated to me and are aggrieved by the Director's Administrative Site Plan Approval and the Director's Administrative Interpretation/Policy Decision. All of these members were duly elected as members long before the appeals of these decisions were filed. All of them were consulted regarding these appeals before they were filed. All who responded to the consultation were in favor of filing the appeals. 8. I have been elected to the offices of Vice President and Secretary of ASE. I keep corporate records for ASE, including minutes of meetings of ASE' s board of directors. 9. ASE was established to advance its members' interest in the environment, land use planning, and governmental fiscal integrity of the City of Renton. See excerpt from Articles of Amendment, a true and correct copy of which is attached hereto as Exhibit C. Pursuant to this purpose, tlie Director of ASE has made a practice of consulting members in advance of decisions concerning appeals or litigation. ASE has memorialized this historic practice by adopting the following policy: The members shall be consulted by the director( s) in advance of all major decisions concerning appeals or litigation, including whether or not to appeal, whether to dismiss appeals, whether to settle, etc. The corporation shall carry out the directions of the members. ECLARATION OF BRAD NICHOLSON -2 ~WP\ASE\liITE PLAN APPEALINICHOLSON DECLARATION 011206.00C Buck~ Gordon up 2025 Rm Avitnue, Suite 500 Seattle. WA 98121 (206) 382·9540 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 10. ASE has amended its bylaws to formalize its members' control over the direction of the corporation. ASE's members exercise such control by expressing their views in consultations with the board of directors in advance of all major decisions concerning appeals, litigation or settlement of claims, as reqlrired by ASE's bylaws, and by voting on matters set forth in ASE's bylaws, including but not limited to the election of directors and any increases or decreases in the number of directors, pursuant to RCW 24.03. JOO; the removal of directors at any time with or without cause or notice, pursuant to RCW 24.03.103; all amendments to ASE's bylaws, pursuant to RCW 24.03.070; and all amendments to ASE's Articles of fucorporation, pursuant to RCW 24.03.165(1). Attached hereto as ExhibH D is a true and correct copy of an excerpt from ASE's amended bylaws. 1 I. Accordingly, ASE's members were consulted in advance of ASE's decision to appeal the Director's Administrative Site Plan Approval and ASE's decision to appeal the Director's Administrative futerpretation/Policy Decision. 12. I and other ASE members have observed great anger, retaliation, and intimidation in Renton City Hall toward people who oppose The Landing and the Mayor's wishes in general. In particular, the fact that The Landing's opponents are now represented by an attorney is a source of resentment. When I fought my previous battles on The Landing the City and the property owner had platoons of attorneys against me. I know they like that, but I like having an attorney and do not approve of their anger. As a result of this anger, there is a desire to protect the identity of other ASE members who fear that this anger will be taken out on them in their various dealings with the City and City Hall. People are frightened of retaliation. Being able to slrield the identities of members is important. 13. As a result of the City's failure to hold a public hearing on any decisions approving The Landing project, I am suffering harm frnm an inability to participate and voice objections to the City Hearing Examiner and the City Council. I am an active, vocal citizen. I am injured by the denial of my rights to hearings. The bottom line is a classic bait-and-switch without a single public hearing. The City promised and adopted an urban village concept. It has switched to a suburban, auto-oriented, big box shopping center and aggressively avoided any hearing while switching. 14. The adopted City laws require a compact, urban development with a compatible mix of uses, orientation of buildings to streets to emphasize urban character, creativity in building and site design, and no parking lots between structures and streets. They also require a significant employment base, with at least 50 employees per acre. The Applicant estimates only 350 new employees (or 8 employees per acre) would work on site. I will suffer harm frnm the inappropriate presence of a suburban-style development in an urban zone, decreased property values, damage to the appearance of the City, and failure to achieve the required employment base. 15. I was a participant in the earlier proceedings leading to the development regulations and Comprehensive Plan designations and requirements that called for these ECLARATION OF BRAD NICHOLSON -3 :\ WPIASEISITE PLAN AFPEAL\NICHOLSON DECLARATION 011206.DOC Buckt.;.\ Gordon LLP 2025 first AvenUI!, Suite-500 SeattJ~. WA 98121 (206} 302-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 designations. Compliance with the law with regard to these designations would lead to the quality of development, shopping and employment that I was promised as a nearby resident. Failure to comply with the law will lead to a much inferior experience and injure me and my property values. Without an appeal, that is what will happen. 16. I own my home and additional adjacent residentially zoned properties. All of my properties will have lesser value if the Landing property is developed at a lesser standard than mandated by the City of Renton's Comprehensive Plan and development regulations. The Landing as approved in the Director's Administrative Site Plan Approval is at a lesser standard and will result in less value for my property than if the law was followed. 17. The Landing is the largest available tract of land in the City to create an urban village. If it develops, as required by the law, including the development regulations and Comprehensive Plan, I will visit there often as a shopper, cinema viewer, and, when I retire from Boeing, likely an employee. As I get older, The Landing's residential component is a place I might take advantage of for living. I am injured by the failure to follow the law in the Site Plan approval. The development regulations and Comprehensive Plan are being abandoned and I will not get the benefit of those laws without this appeal. There is a vast difference between the Urban Center allowed in the development regulations and Comprehensive Plan and the big box retail development without an appropriate employment base proposed by The Landing Site Plan. I am injured by the City's non-compliance with the law. 18. As a result of the unanalyzed and unmitigated traffic impacts caused by the project, I will suffer harm from increased traffic and from delays and increased risk in traveling along the roads I depend upon to commute and travel generally in the community. All of the planning underlying The Landing assumed ramp improvements to I-405. To date these ramps are unplanned and unfunded. The traffic from The Landing will be much worse for me. 19. I use the shores and waters of Lake Washington, Gene Coulon Park, the Cedar River, and Johns Creek, and specifically the shoreline and offshore areas immediately adjacent to The Landing project, for recreational activities including fishing. I have a small canoe and boat from which I fish these waters. 20. The BRCP A required all future development to build storm water systems in compliance with the 200 I Department of Ecology standards. The Landing's proponents now appear to rely, at least in part, on the 1990 King County Surface Water Design Manual, an outdated set of storm water standards that does not provide the same level of protection as the 2001 Department of Ecology standards. In a recent hearing proceeding, the Applicant's attorney refused to stipulate that the Applicant would adopt Ecology's 2001 standards without seeking variances or exceptions. 21. As a result of the stonnwater impacts caused by the project, I will suffer harm from decreased water quality in Lake Washington, the Cedar River, and Johns Creek and from harm to Chinook salmon and other salmonids that use these water bodies. 22. I have personal knowledge of the facts stated in this declaration. ECLARA TION OF BRAD NICHOLSON -4 :IWP\ASE'SITE PLAN APPEAL\N!CHO!.SON DECLARATION 011206.DOC Buck~ Gordon LLP 2025 First Avenue, Surte 500 Seattle. WA 98121 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 !8 19 20 21 n 23 24 25 I declare under the penalty of perjury under the laws of the State of Washington thal the foregoing is true and correct. DATED this E day of January, 2007. BRAD NICHOLSON ECLARATION OF BRAD NlCHOLSON -5 :IWPVSElSITE PLAN APPEALINlC!iOI.SON D8CLA!lA TIDl'I O 11206.DOC Buck0GordonLte 202S Fm.t.A,,,ent.111.., Sui~ SOC Sc.1ttlc. WA 'i8121 QD6J 362-9S40 Buck@' Gordon LLP VIA HAND DELIVERY Ms. Bonnie Walton City Clerk City of Renton January 26, 2007 2:.12._, ' 21)/:, .Yi~' '-}'; CITY OF RENTON JAN 2 6 2DD7 • RECEIVED OffY CLERK'S OFFICE 3:oo fJffl . ,, ; . , . .J:~I 1055 South Grady Way Renton, WA 98055 Via I egctl co v no' Re: Hearing Examiner Motions and Declarations Dear Ms. Walton: We submit the following documents for filing with the Hearing Examiner on behalf of Brad Nicholson and the Alliance for South End (ASE): • Response to Motions to Dismiss Appeals of Interpretation and Site Plan Decisions; • Second Declaration of Peter Buck, with Exhibits; and • Second Declaration of Brad Nicholson, These motions and declarations are filed in the Matter of the Appeals of ASE and Brad Nicholson regarding The Director's Administrative Site Plan Approval and The Director's Administrative Interpretation/Policy Decision. We have included extra copies for the Hearing Examiner. Copies of this letter and the documents have been transmitted via e-mail to all coun I of record, Enclosures cc: Fred Kaufman, Hearing Examiner ., 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF RENTON JAN 2 6 2007 RECEIVED CITY CLERK'S OFFICE !J /! of .J /-i ;l..i BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Plan Approval and the Director's Administrative Interpretation/Policy Decision NO. LUA-06-071-SA-A CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL I. INTRODUCTION Appellants 1 have appealed the approval of the Site Plan proposed by Harvest Partners for the development of The Landing. Appellants have asked the Hearing Examiner, by way of a motion, to send the issue of the Site Plan approval back to the Development Services Director. Essentially, Appellants' basis for this request is that there was no public hearing held before the Site Plan was approved. As that is a legal issue, Renton will respond. However, Appellants have also set out some specific arguments about their claims that the City's approval of the Site Plan was erroneous. These arguments appear in Appellants' 1 Renton has argued in separate briefing that Nicholson has not perfected his appeal. For ease of discussion, Renton will refer to Appellants herein. but reserves its argument that Nicholson has not perfected an appeal on the Site Plan. CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL_ I WARREN BARBER 6 FONTES, P.S. r-~ r::· \'--_ _,. ( \ ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE &OX 61.6 RENTON, WASHINGTON 98057 PHONE 1425) 2~5-fln7A • FAX 1.+25) 255.5474 1 2 Motion for Remand as bullet points involving the Renton Municipal Code and the Comprehensive Plan Land Use Policy statements. These arguments are fact driven, and 3 4 consequently, are most appropriately addressed in a factual hearing, should the Hearing 5 Examiner find that ASE or Nicholson have standing. So, while the arguments regarding 6 these complaints may be appropriate in a Hearing Brief, the arguments made do not 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support a motion and Renton will be addressing those points summarily. II. FACTS As a consequence of Boeing's decision to relocate some of its operations, a considerable amount ofland that housed Boeing offices and manufacturing facilities was made available for redevelopment. The City and Boeing worked cooperatively toward a Development Agreement that would stimulate development of the soon-to-be vacated land. Part of that process called for an amendment to the Comprehensive Plan and re-zoning of the subject parcel. A preliminary conceptual plan was submitted by Boeing. It was submitted with the Development Agreement. It provided the public and the City Council with details regarding the scale of the proposed commercial improvements together with other uses, including residential uses. It outlined the amount of retail space that was going to be available and the likely sales tax revenue that would be generated. On or about October 21, 2003, the City issued a Final Environmental Impact Statement (FEIS) for the Boeing Renton Comprehensive Plan Amendment. The FEIS evaluated the potential environmental impacts of a phased mixed-use project that might be developed on the property vacated by Boeing. The parcel was to be designated Urban Center-North, District One (UC-Nl). The FEIS set out four Alternatives and addressed all CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -2 WARREN BARRER er FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STllEliT • POST OFFICE aox 626 RENTON, WASHlNGTON 98057 PHO~E ('4251 255-867<1 • FAX (4ZS> Z55·HH 1 2 3 4 significant environmental impacts associated with the scenarios described in each of the four Alternatives. Thereafter, in November 2003, the City Council adopted amendments to its 5 Comprehensive Plan, and zoned the area as UC-NI. The Council's vision for the Urban 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Center-North area, as presented in the Comprehensive Plan, was to revitalize the industrial land into a dynamic, urban, mixed-use district supporting a wide range ofresidential, office and commercial uses. The plan for the vacated Boeing land envisioned an urban retail center with a mix oflarge-format "destination" retailers, mid-sized retail anchors, small shop spaces, parking structures, office, and residential components. The City and Boeing had some long range goals for the property and the Development Agreement was the first stage. On or about November 8, 2004, the City Council held a public hearing and public comment was solicited on a proposed Planned Action ordinance. On November 15, 2004, the City Council passed Ordinance 5107, designating as Planned Action those uses and activities described in the FEIS, subject to the thresholds described in Alternatives I, 2, 3 and 4, and subject to the mitigation measures described in the Development Agreement. On May 19, 2006, the City of Renton Department of Planning/Building/Public Works issued a decision approving The Landing Master Plan application. ASE appealed the approval of the Master Plan as well as the designation of The Landing as a Planned Action.2 ASE also appealed the approval of the Infrastructure. However, ASE has ' The Hearing Examiner dismissed that first round of appeals due to ASE' s Jack of associational standing. ASE has appealed the decision of the Hearing Examiner to the City Council. The argument dale for that first set of appeals is scheduled in February. CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -3 WARREN RARBER 6 FONTES, PS. ATTORNEYS AT LAW 100 SOC"Ill SECONO STREET • POST OFFICE IIOX 6l6 RENTON, WASHINGTON 98057 PHONE l.+l5l 255,8671! • FAX l<l-l5l l55-S .. H 1 2 withdrawn that appeal. Thereafter, on August 17, 2006, the City approved the Site Plan for The Landing. It is from this Site Plan that this second round of appeals follows. 3 LI IV. EVIDENCE 5 Declaration of Neil Watts 6 1 8 9 10 11 12 13 1 LI 15 16 17 18 19 20 21 22 23 211 25 26 21 28 V. ARGUMENT/AUTHORITIES A. THE SITE PLAN FOR THE LANDING DID NOT REQUIRE A PUBLIC HEARING Appellants have argued that the City's approval of the Site Plan is flawed because a public hearing was required and not held. (Appellant's Motion to Remand, Section IV.C). Appellant relies on RMC 4-9-200D.2(b) as the basis for its argument that a public hearing before the Hearing Examiner was required for the Site Plan. Appellant conveniently bypasses a section of that same provision. RMC 4-9- 2000 l(a) provides, in pertinent part: "Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing." Appellant's reliance on a section of the code different from the one used by the City necessitates a review of rules of statutory construction. "Related statutory provisions must be harmonized to effectuate a consistent statutory scheme that maintains the integrity of the respective statute." Koenig v. City of Des Moines, 158 Wn. 2d 173, 184, 142 P.Jd 162 (2006). In the instant case, the provision cited by Appellants (for large projects) and the provision cited above (for Site Plans following an approved Master Plan) can be harmonized. If the Site Plan for a large project does not follow an approved Master Plan, it must go through a public hearing ifit meets the criteria cited in RMC 4-9-2000. However, CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -4 WARREN BARBER a FONTES, P.S. ATTORNEYS AT LAW I 00 SOUTH SECOND STREET • POST OfflCE BOX 6Z6 RENTON, WASHINGTON 9S057 PHONE 1'4H) 2.'i5.f!67A • FAX ('425) 2S5-S474 1 2 when it has gone through Master Plan approval, it need not go through additional public hearings pursuant to RMC 4-9-200D. l(a). The two provisions can be harmonized and the 3 4 harmonized reading leads to the conclusion that this Site Plan did not need to go through a 5 public hearing. 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There is additional evidence that the Renton Municipal Code contemplated there would be Site Plan proposals that would not need to go through a public hearing. RMC 4- 8-070H(l)(n) provides that the Hearing Examiner shall review and act on "Site Plan approvals requiring a public hearing." The Hearing Examiner is not the authority to act on Site Plan approvals that do not require a public hearing. Such is the case here, in regards to The Landing Site Plan. In the instant case, the Master Plan for The Landing had been approved. Where the Master Plan was approved, the Site Plan need not go through a public hearing. And, while the Master Plan is on appeal, that fact (that the Master Plan is on appeal) is not dispositive. In reality, if the Master Plan Approval is reversed by a higher authority, then whether the Site Plan was approved in error will become a moot point anyway. Either the Master Plan approval will be upheld, in which case the Site Plan did not require a public hearing; OR the Master Plan approval will not be upheld and The Landing project will be back to that step (seeking Master Plan approval) and the Site Plan approval will be void. All of this to say: Appellants' Motion to Remand seeks relief that the Hearing Examiner cannot give. Appellants' Motion to Remand is misdirected. Ill Ill CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -5 WARREN BARBER cr FONTES, P.S. ATTORNEYS AT LAW 100 SOt:TH SECOND STREET • POST OFFl<.:E BOX 6Z6 RE.NTON, WASHINGTON 980S7 PHONE (42S) 255·86711 • FAX (<1-25) 255-5.7<1 1 2 3 4 5 6 B. APPELLANTS' COMPLAINTS RE: VIOLATION OF CITY CODE REGULATIONS ARE MISPLACED I. Stipulation Precludes Appellants' Argument Re: Large Surface Parking Appellant argues that the Site Plan fails to comply with the land use regulations in the Renton Municipal Code. However, the allegations contained in the motion are either wrong or irrelevant. For example, Appellants find error with "Parking in front of building" 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with respect to the "large surface parking lot between Building 200 and North !Olli Street." However, the building, parking, and access ways at issue in this argument is the subject of a Stipulation made between the parties. (See, Exhibit D to the Stipulation of the parties.) By stipulation, Building 200, the parking serving that building and the access to that parking, were a "Vested Development." ASE and Nicholson agreed that the appeals herein would not relate to the "Vested Development." Therefore this point is not only irrelevant, but Appellants should not have raised the issue at all. 2. Driveways Are Permitted By Waiver, Code, or Stipulation Appellant also points to issues of "Surface parking driveways" as applied to "pedestrian oriented streets." The City is responsible for constructing the driveways as they are in the sidewalk. That was a part of the infrastructure approval. Appellants either did not raise that issue in the infrastructure appeal or waived it by withdrawing said appeal. Either way, Appellants' efforts to complain about the driveways on Park Ave. North or North 10th in this appeal are untimely because any appeal of the driveways should have been made in the infrastructure appeal. Moreover, Appellants' argument regarding the driveways is dependent on the status of Park Ave. North and North 10th as "pedestrian oriented streets." However, Appellants do not provide in their briefing any authority for the proposition that either roadway is a CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL-6 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW lOO SOL'TH SECOND STREET • POST OFFICE BOX 616 RENTON. WASt-llNGTON 98057 puors;E IHS) !SS,8678 • FAX l•U5) 255-S<l74 1 pedestrian oriented street. On the other hand, Renton can identify in the City Code a 2 provision that identifies Park Ave. North (from Bronson Way No. to N. Park Dr.) as a 3 4 "principal arterial." (See, RMC 4-2-080£, the City of Renton Arterial Street Plan.) 5 Furthermore, the City Code defines a "street arterial" as a "[s]treet intended for higher 6 traffic volume and speed and classified as a principal or minor arterial on the City of 7 Renton Arterial Street Plan. "3 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To prevail, Appellants would have to direct the Hearing Examiner to a City Code provision that re-designates those roadways as "pedestrian oriented." Appellants will not be able to do that. Finally, some of the driveways about which Appellants complain are included in the "Vested Development" that was the subject matter of the Stipulation between the parties. This challenge by Appellants of the driveways out to North 10th and Park Ave. North is inappropriate as it violates the Stipulation. 3 _ There Is No Requirement For Unscreened Loading Docks Another example of flawed analysis appears in Appellants' section related to "Unscreened Loading Docks". Appellants contend that the RMC 4-2-IZOE requires that the Site Plan screen a minimum of seven truck loading docks from view of public streets. However, an examination of this provision reveals that the screening requirements within the UC-NI zone is subject to RMC 4-4-095. Under RMC 4-4-095(F)(2) -Outdoor Loading, Repair, Maintenance and Work Areas -Commercial and Industrial Zones, the loading docks in the Site Plan have no screening requirement unless the parcel abuts or 3 Neither does ASE identify the authority on which it relies for the proposition that N. 8"' or N. Io"' arc "pedestrian oriented" streets. In fact, the City's Arterial Street Plan identifies N. s"', between Park Ave. North. and Garden Ave .. as a minor arterial. CITY OF RENTON'S RESPONSE TO APPELLANTS" MOTION TO REMAND SITE PLAN APPROVAL -7 WARREN BARBER cr FONTES, P.S. ATTORNEYS AT LAW !00 SOVTH SECO~D STREE,T • POST OFFICE BOX 626 REt-,;TON, WASHINGTON 960~7 PHONE (4Z1) H5.867fl • FAX (425) 255.5474 , adjoins a residential zoned lot.4 There is no dispute in this case that the loading docks 2 about which Appellants complain are not on lands abutting or adjacent to a residential 3 11 zoned lot. Appellants have not even alleged that in their brief Rather, Appellants make an 5 argument unsupported by facts or law and expect the Hearing Examiner to impose the 6 requested relief 7 8 9 10 , 1 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 4. Setbacks Finally, Appellants complain about the setbacks between Park Ave. No. and Building 202. The setback approved at that location was the subject of an administrative interpretation made on July 17, 2006, while the Development Services Director was considering a development application from Lowe's. The Development Services Director made a policy interpretation that was applied to the Lowe's development application and was adopted by the Hearing Examiner in his consideration of the Lowe's development application. Appellants have used The Landing proposal as the vehicle to appeal that interpretation. However, the City and Harvest Partners have argued in other briefing that Appellants' appeal was untimely or that the Appellants lack standing. This is another example where the determination of this point (setbacks) should not be made in this Motion for Remand. Tfthe Hearing Examiner agrees that the appeal from the interpretation is either untimely or the Appellants lack standing, then the argument in Appellants' Motion to Remand is mooted. If, on the other hand, the Hearing Examiner determines that the appeal of the interpretation is not time barred and the Appellants have standing, then the appropriate course is to conduct a hearing on the merits. 4 RMC 4-4-095(F)(2) states in relevant part: Screening is not reqnired, except when Uie subject commercial or industrial lot abuts or is adjacent to a residential zoned lot...and the regulated activity is proposed on the side of the property abutting or adjacent to the listed zones. CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL_ g WARREN BARBER cr FONTES, P.S. ATTORNEYS AT LAW 1 00 SOUTH SE,CQND STREET • !'OST OFFICE 80X 6l6 RENTON, WASHINGTON 98057 PHONE l.+25) 255-8678 • FAX 1 ... ZS) 255,5.+H 1 2 3 • 5. Modifications of Design Standards A hearing on the merits would permit the City to provide evidence that the 4 modifications of the design standards were warranted. RMC 4-3-IOOL provides that the 5 Development Services Director: 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [s]hall have the authority to modify the minimum standards of the design regulations, subject to the provisions ofRMC 4-9-250D and the following requirements: a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. A hearing on the merits is the appropriate way to proceed on the questions of whether I) any of the complaints by Appellants are warranted, 2) the modifications, if any, met the conditions in RMC 4-3-1 OOL, and 3) if, on balance, the Site Plan should have been approved. A motion to have the Hearing Examiner refrain from conducting the review he is authorized to do is inappropriate and should be denied. C. APPELLANTS' COMPLAINTS RE: VIOLATION OF COMPREHENSIVE PLAN ARE MISPLACED Appellants also attack the Site Plan by alleging that it violates various Land Use policies within the City's Comprehensive Plan. In their motion, Appellants acknowledge that the Comp Plan consists of "goals, objectives, and policies" instead of hard and fast rules. (Appellants' Motion to Remand, at page 4.) Appellants' mere allegation that the Site Plan violates the Comprehensive Plan does not make it so. Renton can just as easily argue that the Land Use policies identified by the Appellants in their motion were followed by the City and have been met. For instance, Policy LU 269 is met because The Landing promotes an urban, mixed-use CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -9 WARREN BARBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFtlCE !!,OX 626 Rl:NTON, WASHJNGTON 98057 PHONE (425) 25~·8671'1 • FAX (•251 255-5-474 1 2 3 II 5 6 7 8 9 10 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 development in that there are co-uses ranging from residential, retail, a movie theater and the potential for future office space. Appellants may disagree. However, in a hearing on the merits there would be testimony from all sides to show how the policy is either met or not met. But, for purposes of a motion to avoid a hearing on the merits, Appellants needed to offer some evidence to support their argument and they did not do so. In fact, there are no requirements that the Land Use policies achieve instantaneous results. The intent of the land use policies is grounded in long range goals and is reflected in the use of words such as "support," "promote," and "achieve." Similarly, what we are now seeing as The Landing project is just the beginning of a long range vision for the property. The full build-out of The Landing will not happen all at once. It will be up to the Hearing Examiner, after a hearing on the merits, should the Hearing Examiner determine ASE or Nicholson have standing to proceed, to determine whether the Site Plan has achieved and/or supported those goals. Furthermore, the Hearing Examiner will be required to make that determination while giving great weight to the decision of the Development Director. A motion asking the Hearing Examiner to forego a hearing on the merits and presume errors were made by City staff, ignoring the Appellants' burden to overcome the deference given to the Development Director's decision, is inappropriate and premature. D. INCORPORATION BY REFERENCE Appellants' Motion for Remand should be stricken, as not supported by any authority. Further, and by way of further response to Appellants' motion, Renton hereby incorporates by this reference, as if fully set forth herein: CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTTON TO REMAND SITE PLAN APPROVAL -10 WARREN BARBER & FON'fES, P.S. ATTORNEYS AT LAW I 00 SOLi TH SECO!',"O STREET • POST OFFICE BOX 6Z6 RENTON, WASHINGTON 98057 PtiONl: (4lS) l5S-867M • FAX HH) 255.~474 1 2 3 " 5 6 7 8 9 10 11 • Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing • Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction • Applicant's Response to Appellants' Motion for Declaratory Ruling Regarding Standing • City ofRenton's Motion to Dismiss Appeal ofBrad Nicholson of the Director's Administrative Site Plan Approval for Lack of Jurisdiction Due to Nicholson's Failure to Perfect His Appeal. • City ofRenton's Joinder in Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing • City ofRenton's Joinder in Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack ofJurisdiction VI. CONCLUSION City Code does not require all Site Plans go through a public hearing. Those Site 12 Plans that follow an approved Master Plan are not required to go through a public hearing. 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 Appellants' Motion to Remand, insofar as it is based on alleged violations of the City's code or land use policies of the Comp Plan, is not the proper process. If the Hearing Examiner determines that Appellants have standing and the appeals are timely, then, the appropriate process is to conduct a hearing on the merits. Appellant's Motion to Remand should be denied. DA TED this 26'h day of January, 2007. CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION TO REMAND SITE PLAN APPROVAL -11 WARR EN BARBER & FONTES, PS I ,,;, (c -, , .,,,._ By: '0-----,~ _/ '-.'/7" '· '1 I Zaµetta L. Fontes, WSBA #9604 $<ftomeys for City of Renton '·~ __ _,,-/ WARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW \00 SOJ..:TH SECOND STRt:E:I' • POST OFFlCE SOX 616 RENTON, WASHINGTON 98057 PHONE J .. 25) 255-86711 • FAX l .. 25) 255-S .. H ' 1 2 3 Ii 5 6 7 8 9 10 11 12 13 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 CITY OF RENTON JAN 2 6 2007 RECEIVED CITY.CLERK'S OFFICE J // d 7 "1.vt BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Plan Approval and the Director's Administrative Inte retation/Policy Decision NO. LUA-06-071-SA-A CITY OF RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING REGARDING ST ANDING Appellants 1 have asked the Hearing Examiner, by way of a motion, to issue a Declaratory Ruling that ASE and Nicholson have standing. Appellants offer no authority for the proposition that the Hearing Examiner has the authority to issue a Declaratory Ruling. As discussed in other briefing, the Hearing Examiner's authority is limited to that which is granted by Renton Municipal Code. RMC 4-8-070H sets out the Hearing Examiner's authority. Issuing Declaratory Rulings is not within the Hearing Examiner's authority listed in RMC 4-8-0708. Neither is there any provision in the code that provides for such a ruling. Declaratory judgments are a creature of statute. Absent that legislative grant of power, there is no inherent authority for hearing examiners to grant declaratory relief 1 Renton has ari,'l!ed in separate briefing that Nicholson has not perfected his appeal. For ease of discussion, Renton will refer to Appellants herein, but reserves its argument that Nicholson has not perfected an appeal on the Site Plan. RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING REGARDING STANDING -I WARREN BARBER o IFONTES, P.S. ATTORr,;'.EYS AT LAW 100 SOUTH SECOND STREET • POST OFFlCE BOX 62f, RENTON. WASHlNVTON 98057 PHONE (4l5l 255,8678 • FAX (425) 255.5474 • 1 2 3 Ii 5 6 7 8 9 10 11 In fact, Harvest Partners and Renton have challenged the Hearing Examiner's jurisdiction to hear these appeals due to the lack of standing on the part of either ASE or Nicholson. Appellants' Motion for Declaratory Ruling is nothing more than an effort to get the "last word" on the issue of standing. If Appellants did not bring this spurious motion, they would be relegated to writing only a Responsive brief (a Response to the motions by Harvest Partners and Renton). By bringing this motion, Appellants get to write a Reply brief as well as a Response and the Reply will be filed without Harvest Partners or Renton being able to reply to the Reply. Appellants' Motion for Declaratory Ruling should be stricken, as not supported by 12 any authority. Further, and by way of further response to Appellants' motion, Renton 13 hereby incorporates by this reference, as if fully set forth herein: 111 15 16 17 18 19 20 21 22 23 211 25 26 27 28 • Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing • Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction • Applicant's Response to Appellants' Motion for Declaratory Ruling Regarding Standing • City ofRenton's Motion to Dismiss Appeal of Brad Nicholson of the Director's Administrative Site Plan Approval for Lack ofJurisdiction Due to Nicholson's Failure to Perfect His Appeal. • City of Renton's Joinder in Applicant's Motion to Dismiss ASE and Nicholson Appeals from The Landing Administrative Site Plan Approval for Lack of Standing • City ofRenton's Joinder in Applicant's Motion to Dismiss ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction RENTON'S RESPONSE TO APPELLANTS' MOTION FOR DECLARATORY RULING REGARDING STANDING -2 DATED this 26th day of January, 2007. WARREN BARBER & FONTES, PS J / ;l / I By 4=/i, /7)~1,,ti:1 ', ____ _,,../' Z~netta L. Fontes, WSBA #9604 ,Attorneys for City of Renton WARREN BARiBER & FONTES, P.S. ATTORNEYS AT LAW 100 SOCTH SECOND STREET • POST OFFICE BOX 626 RENTON. WASHINGTON 98057 PHONl: 1-425) 255·8671'1 • FAX (<1-25) 255.~ .. 74 1 2 3 4 5 6 7 CITY OF RENTON JAN 2 6 2007 RECEIVED CITY CLERK'S OFFICE 't /I 3 1 4 n 8 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 9 In the Matter of the Appeals of 10 11 12 Alliance for South End (ASE) and Brad Nicholson re The Director's Administrative Site Plan NO. LUA-06-07I, SA-A, DECLARATION OF NEIL WATTS IN RESPONSE TO ASE AND NICHOLSON'S MOTION TO REMAND 13 A roval 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. I, Neil Watts, am a citizen of the United States of America, a resident of the State of Washington, and not a party to the above-referenced action. I am competent to be a witness herein, and I make this declaration based upon my personal knowledge, under penalty of perjury under the laws of the state of Washington. 2. I am the Director of the Development Services Department of the City of Renton. I have held this post for over six years. 3. As a consequence of Boeing's decision to relocate some of its operations, a considerable amount of land that housed Boeing offices and manufacturing facilities was made available for redevelopment The City and Boeing worked cooperatively toward a Development Agreement that would stimulate development of the soon-to-be vacated land. Part of that process called for an amendment to the Comprehensive Plan and re-zoning of the subject parcel. 28 DECLARATION OF NEIL WATTS IN RESPONSE TO ASE AND NICHOLSON'S MOTION TO REMAND -1 WARREN BARBER 6 FONTES, P.S. ATTORr--EYS AT LAW I 00 SOUTH SECOND STREET • POST OFflCE flOX 626 RENTON, WASHINGTON 98057 PHONE ( .. 251 255-!167!1 • FAX ( .. ZS) 2iS-H7i 1 4. A preliminary conceptual plan was submitted by Boeing. It was submitted 2 with the Development Agreement. It provided the public and the City Council with details 3 11 regarding the scale of the proposed commercial improvements together with other uses, 5 including residential uses. It outlined the amount of retail space that was going to be 6 available and the likely sales tax revenue that would be generated. 7 8 9 10 11 5. On or about October 21, 2003, the City issued a Final Environmental Impact Statement (FEIS) for the Boeing Renton Comprehensive Plan Amendment. The FEIS evaluated the potential environmental impacts of a phased mixed-use project that might be developed on the property vacated by Boeing. The parcel was to be designated 12 Urban Center-North, District One (UC-Nl). The FEIS set out four Alternatives and 13 addressed all significant environmental impacts associated with the scenarios described in 14 each of the four Alternatives. 15 16 17 18 19 20 21 22 23 24 25 26 27 6. Thereafter, in November 2003, the City Council adopted amendments to its Comprehensive Plan, and zoned the area as UC-NI. The Council's vision for the Urban Center-North area, as presented in the Comprehensive Plan, was to revitalize the industrial land into a dynamic, urban, mixed-use district supporting a wide range of residential, office and commercial uses. 7. The plan for the vacated Boeing land envisioned an urban retail center with a mix of large-format "destination" retailers, mid-sized retail anchors, small shop spaces, parking structures, office, and residential components. The City and Boeing had some long range goals for the property and the Development Agreement was the first step. 8. On or about November 8, 2004, the City Council held a public hearing and public comment was solicited on a proposed Planned Action ordinance. On November 15, 28 DECLARATION OF NEIL WATTS IN RESPONSE TO ASE AND NICHOLSON'S MOTION TO REMAND -2 WARREN BARBER 6 FONTES, P.S. ATTORNEYS AT LAW 100 SOUTH SECOND STREET • POST OFFICE BOX 626 RENTON, WASHINGTON 98()57 PHO~E 1425) !55-A67fl • FAX (4251 255·547+ • 2004, the City Council passed Ordinance 5107, designating as Planned Action those uses and activities described in the FEIS, subject to the thresholds described in Alternatives 1, 2, 3 and 4, and subject to the mitigation measures described in the Development Agreement. 9. On May 19, 2006, the City of Renton Department of Planning/Building/Public Works issued a decision approving The Landing Master Plan application. Thereafter, on August 17, 2006, the City approved the Site Plan for The Landing. 10. On July 17, 2006, I rendered an interpretation of City Code regarding setbacks in the commercial zones. This came to light during my consideration of a development application submitted by Lowe's. My interpretation was applied to the Lowe's application and was adopted by the Hearing Examiner in the approval of the Lowe's development application. DATED this 2 G day of January, 2007, at Renton, Washington. Neil Watts DECLARATION OF NEIL WATTS IN RESPONSE TO ASE AND NICHOLSON'S MOTION TO REMAND -3 ' 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 HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Interpretation/Policy Decision; and The Director's Administrative Site Plan Approval ) ) ) ) ) ) ) ) ) ) ) _______________ ) LUA-05-136, SA-A, SM APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION/POLICY DECISION AND SITE PLAN DECISION Buck@!Gordon LLP APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS 2025 Fir~t Avenue, Suite 500 Seattle, W.t:J, 9812! /206) 382-9540 Y:",WP"sA$E•.S1T1: PLA:-.1 APP!:AL,ASE RESPONSES\RESPOt>,~!: TU APPLICANT MOTIONS TO D1SM1SS APPEALS.012507-2.DOC ' 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 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................................... 1 STATEMENT OF FACTS ..............................................................................................••...•........................ 3 ARGUMENT ...............................•.•.•.••.•••..••••••.•.•...•.•.............................................................................•....... 3 THE SETBACK DECISION IS ULTRA VIRES ................... ,,,,,,,,,,, ......... , ......................................................... 3 The Director Exceeded His Authority by Interpreting Unambiguous Regulations and Adopting an Interpretation that Conflicts with the City's Code and Comprehensive Plan ........................................ 4 The Director's Setback Decision Usurped the City Council's Authority to Amend Development and Zoning Regulations................ 6 The Director's Setback Decision Violated the Planning Enabling Act for Code Cities by Amending the City's Zoning Regulations Without a Required Public Hearing........................... .. ....................... 7 The Director's Setback Decision Violated the Growth Management Act by Amending the Zoning Code without Required Public Notice .............................................................................................................. 9 The Director's Setback Decision Granted a De Facto Variance for The Landing Without Following Legally Required Procedures............... .. ................... 10 THE SETBACK APPEAL WAS TIMELY ...................................................................................................... 12 The Appeal Was Filed Within 14 Days of Actual Notice ... .. ........ 12 The Appeal Was Filed Within 14 Days qfThe Setback Decision's Appearance in the Site Plan Decision ................................................................................... , .... , ....................................................... 17 NICHOLSON PERFECTED HIS APPEALS BY EXCEEDING RMC REQUIREMENTS FOR APPEAL :"IOTICES. ............ ,,,,,,,, ... , ... ,,,, .. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, .. ,,,,,,,,,,,,,,,,,,,,,,,, ... , ... , .. ,,,,,,,,,,,,,,,,,,,,,,,,,, 17 NICHOLSON AND ASE HAVE STANDING AS TO THE SETBACK DECISION AND THE SITE PLAN DECISION. ,,,,,,,, .. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ... ,, ..... ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,23 Legal Requirements for Standing .......................................... .. .. ........... 24 Individual Standing ................................................................... . ,,,,,,,,,,, ........ 24 Associational Standing .............................. . . .... 25 Brad Nicholson Has Standing to Challenge the Director's Decisions ................................................ 28 Nicholson Has Standing as to the Setback Decision ..... . .... , ............. 28 Nicholson Has Standing as to the Site Plan Decision .... . .... 29 ASE Has Associational Standing to Challenge the Director's Decisions .. """""" 31 AS E's members have standing to sue in their own right. ............. . ......................... 32 ASE is seeking to protect interests germane to its purpose. . ........ 33 The claims and requested relief do not require the participation of ASE members ..... . ,,,,,,,, .. ,, .. ,, ......... 33 Y:\WP\ASE\S!TE PLAN APPI'AL'ASE RESPONSES°' RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Se;;:ttle, WA 98121 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TABLE OF CONTENTS CONCLUSION ............................................................................................................................................. 34 11 Y:,WP'-ASE'-SJTE PLAN APPEAL'sASE Rf.SPOl\SFSIRESPmlSE TO APPLICANT MOT!Ol\S TO DISMISS APPEALS.012507-2.DOC Buck G:> Gordon LLP 2025 First Averue, Suite 500 Seattle, WA 98121 (206) 382-9540 ' TABLE OF AUTHORITIES 1 CASES 2 Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994) ..................................................... 10 3 Barrie v. Kitsap County, 84 Wash.2d 579,527 P.2d 1377 (1974) ................................................................. 13 4 Bartz v. Board of Adjustment, 80 Wn.2d 209,492 P.2d 1374 (1972) ............................................................ 19 5 Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d I (2002) ..................................................................... 25 6 City of Burien v. Central Puget Sound Growth Management Hearings Ed., 113 Wn.App. 375, 53 P.3d 1028 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (2002) .......................................................................................................................................................... 9 East Gig Harbor Imp. Ass'n v. Pierce County, 106 Wn.2d 707, 724 P.2d 1009 (1986) ........................... 25, 32 First Fed. Sav. & Loan Ass'n v. Ekanger, 93 Wn.2d 777, 613 P.2d 129 (1980 ............................................. 20 Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. 2002) .................................. 32, 27 Fund Democracy, UC v. S.E. C., 278 F.3d 21, 25 (D.C. Cir. 2002) ....................................... 26. 27, 28, 29,32 Gifford v. County o.f'Spokane, 9 Wn.App. 109, 510 P.2d 1166 (1973) .......................................................... 16 Griffith v. City of'Bellevue, 130 Wn.2d 189,922 P.2d 83 (1996) .................................................................. 23 Hoberg v. City of Bellevue, 76 Wn.App. 357,884 P.2d 1339 (1994) ............................................................ 10 In re Freshwater Wetlands Statewide General Permits, 185 N.J. 452,888 A.2d 441 (2006) ........................ 10 International Ass'n of Firefighters, Local 1789 v. Spokane, 146 Wn.2d 207, 45 P.3d 186 (2002) .... 25. 26, 33 Juanita Bay Valley Community Ass'n v. City of' Kirkland, 9 Wn.App. 59, 510 P.2d 1140 (1973) .................. 6 Kucera v. Dept. of Transportation, 140 Wn.2d 200, 995 P.2d 63 (2000) ...................................................... 25 McGuire v. State, 58 Wn.App. 195, 791 P.2d 929 (l 990) ................................................................................ 3 Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wn.2d 418,511 P.2d 1002 (1973) ............................ 13 Orion Corp. v. State, 103 Wn.2d441, 693 P.2d 1369 (!985) ........................................................................ 10 Pierce v. King County, 62 Wn.2d 324, 382 P.2d 628 (1963) ......................................................................... 16 Port Townsend School Dist. No. 50 v. Brouillet, 21 Wn.App. 646,587 P.2d 555 (1978) ................................ 3 Responsible Urban Growth Group v. City of Kent, 123 Wn.2d at 387,868 P.2d 861 (1994) ...................... 7, 8 State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982) .............................................................................. 8 Y:s.WP\ASE\SITE PLAN APPEAL'ASE RESP01':SF.S\RF.SPONSF. TO APPLICANT MOTJO'-:S TO DISMISS APPEALS.012507-2.rxx: Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle-, WA 98121 (206) 382-9540 TABLE OF AUTHORITIES 1 Save a Valuable Environment (SAVE v. City of Bothell, 89 WN 2nd 862 P. 2d 401 (1978) 26 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Trepanier v. City of Everett, 64 Wn.App. 380, 824 P.2d 524 (l 992) ............................................................. 25 Van Sant v. City of Everett, 69 Wn.App. 641,849 P.2d 1276 (1993) ............................................................ 19 STATUTES RCW JSA.63.070 ........................................................................................................................................ 7, 8 RCW 35A.63.I00 ............................................................................................................................................. 8 RCW 35A.63.IOO(l) .................................................................................................................................... 7, 8 RCW 35A.63.l 10(2) ...................................................................................................................................... 12 RCW 36.70A.035(1) .................................................................................................................................. 9, 16 RCW 36.70A.035(l)(c) .................................................................................................................................... 9 RCW 4.36.240 ................................................................................................................................................ 20 OTHER AUTHORITIES Amd. Ord. 4835, 3-27-2000 .................................................................................................................... 11 RMC 1-5-1.A ................................................................................................................................................... 7 RMC 4-1-080.A(l) ....................................................................................................................................... 4, 5 RMC4-l-170 ................................................................................................................................................. 19 RMC 4-2-120.C.15 .................................................... . . .............................................................................. 6 RMC 4-2-120.E ........................................................................................................................................ 4, 5, 6 RMC 4-8-070.H(l)(p) ................................................................................................................................... 11 RMC 4-8-070.1 ............................................................................................................................................. 4, 6 RMC 4-8-110.C(J)-(4) ................................................................................................................................... 18 RMC 4-8-110.E(J)(b) .................................................................................................................................... 24 RMC 4-9-025 ............................................................................................................................................... 6, 7 RMC 4-9-250.B(4) ......................................................................................................................................... l l RMC 4-9-025.A-B ........................................................................................................................................... 7 11 Y-\WP--ASE''.SITE Pl.AN APPF.AJ.\ASF. RF:SPONSF.S\RF.SPOKSE TO APPUCANT MOTIONS TO [)ISM1SS APPF.ALS.012507-2.DOC Buck~Gordon LLP 2825 First Avenue, Suice 500 Seattle, WA 98121 (206) 382·9540 TABLE OF AUTHORITIES 1 RMC 4-9-025.G ............................................................................................................................................... 7 2 RMC 4-9-200.A(2) ......................................................................................................................................... 30 3 RMC 4-9-200.D ............................................................................................................................................. 29 4 RMC 4-9-200.E ........................................................................................................................................ 30, 31 5 RMC 4-9-200.E(l)(a) ..................................................................................................................................... 30 6 RMC 4-9-200.E(l)(b) ..................................................................................................................................... 30 7 RMC 4-9-200.E(l)(c) ..................................................................................................................................... 30 8 RMC 4-9-200.F .............................................................................................................................................. 30 9 RMC 4-9-200.G ............................................................................................................................................. 29 10 RMC 4-9-200.0(12) ....................................................................................................................................... 29 11 RMC 4-9-200.G(S) ....................................................................................................................................... 29 12 RMC 4-9-200.0(9) ........................................................................................................................................ 29 13 14 15 16 17 18 19 20 21 22 23 24 25 RMC 4-9-200.N ........................................................................................................................................... 24 RMC 4-9-250.B .............................................................................................................................................. 11 RMC 4-9-250.8(5 .......................................................................................................................................... 11 RMC 4-9-250.B.(l)(a) .................................................................................................................................... 11 RMC 4-9-250.B.(l)(c) .................................................................................................................................... 10 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate, Property Law,§ 6.81 (2006) 10 l11 Y :'•WP•ASE\SITE PLAN APPEAL'•ASE RF.SPOJ\SES'·.RESPO'>JSE TO A.PPLICANT :v!OTIOJ\S TO DlSMJSS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Interpretation/Policy Decision; and The Director's Administrative Site Plan Approval ------------------ ) ) ) ) ) ) ) ) ) ) ) ) LUA-05-136, SA-A, SM APPELLANTS' RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION/POLICY DECISION AND SITE PLAN DECISION I. INTRODUCTION Applicant Harvest Partners (the "Applicant") has filed two motions to dismiss the appeals of the Interpretation/Policy Decision issued on July 17, 2006 (the "Setback Decision") and the Administrative Site Plan Approval for The Landing issued on August 17, 2006 (the "Site Plan Decision"), which were filed by the Alliance for South End (ASE) and Brad Nicholson on August 31, 2006. The City of Renton (the "City") also filed two motions to dismiss these appeals. The City and the Applicant have joined in each other's motions. This memorandum responds to all motions filed by the Applicant and the City. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -I Y:\WP\ASE\SITE PIAN APPEAL',ASE RESPOKSES'.RESPO:-JSE TO APPLICANT MOTIONS TO DISMISS APPE.A.LS.012507-2.DCC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattle, W.l,,, 98121 (206) 382-9540 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 These motions showcase a deep-seated desire to avoid public scrutiny of The Landing. The Applicant and the City appear desperate to avoid a hearing on the merits in this case, just as they have avoided a public hearing regarding The Landing. This approach has expedited approvals for The Landing, but it has also resulted in a project riddled with code violations and other illegalities. The Hearing Examiner is now in a unique position, and at a critical time, to correct these problems. Regardless of the outcome of these motions or Appellants' appeals, the Setback Decision is ultra vires and therefore void as a matter of law. The City issued the Setback Decision as part of approvals for the Lowe's project. By doing so, the City concealed an illegal decision, purporting to excuse The Landing's illegalities, in files for a project unrelated to The Landing. Incredibly, the Applicant suggests that ASE and Nicholson should be required to monitor City approvals for other, unrelated projects to search for decisions that might somehow relate to The Landing. The Applicant's position, if accepted, would defeat the purpose of becoming a party of record ( or even informally monitoring) land use activities by allowing the City to hide key interpretation decisions in other project files. The Examiner should not condone such abuse of process. Once again, the Applicant and the City have also resorted to attacks grounded in hypertechnical arguments that amount to nothing more than quibbling about document formatting. They argue that Nicholson failed to "perfect" his appeals but fail to cite any APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -2 Y:\WP' ASE·.S1TE PLAN APPEAL\ASE RfSPONSfS"sRESPONSl TO APPLJCA:-.IT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 provision of the Renton Municipal Code (RMC) with which Nicholson's appeals failed to comply. These arguments have no support in the law and must be rejected. Worse, the Applicant continues to misrepresent the law of standing in Washington. The cases regarding associational standing cited by the Applicant simply do not support the Applicant's arguments. Indeed, one holding cited by the Applicant directly contradicts the Applicant's position. The Examiner should reject the Applicant's attempts to distort the law. For these reasons, the Applicant's and the City's motions to dismiss ASE's and Nicholson's appeals of the Setback Decision and the Site Plan Decision should be denied. II. ST A TEMENT OF FACTS The facts relevant to these motions have been set forth in the appeal notices, motions and declarations filed by the Appellants (including the declarations filed with this motion), which are incorporated herein by this reference. III. ARGUMENT A. The Setback Decision Is Ultra Vires. The Setback Decision exceeded the Director's authority and violated the RMC and state law. "Acts done without legal authorization or in direct violation of existing statutes are ultra vires. "Miller v. City of Bainbridge Island, 111 Wn.App. 152, 165, 43 P.3d 1250 (2002). It is well settled in Washington that ultra vires acts are null and void as a matter of law. See, e.g .. McGuire v. State, 58 Wn.App. 195, 199, 791 P.2d 929 (1990); Port Townsend School Dist. No. 50 v. Brouillet, 21 Wn.App. 646,653,587 P.2d 555 (1978) ( citations omitted). APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF mTERPRETATION AND SITE PLAN DECISIONS -3 Y:\\VP\ASE•.SITE PU..N APPEAL\ASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 I 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 Director's Setback Decision is ultra vires for the following reasons: (1) the Setback Decision was unnecessary and inconsistent with the City's development regulations and Comprehensive Plan in violation ofRMC 4-1-080.A(l); (2) the Setback Decision exceeded the Director's authority and usurped City Council authority in violation of RMC 4-8-070.1; (3) the Setback Decision amended City zoning regulations without a public hearing in violation of the planning enabling act for code cities; (4) the Setback Decision amended City zoning regulations without a public hearing in violation of the Growth Management Act; and (5) the Director granted a de facto variance, thereby ignoring rigorous procedural requirements for approval of nonconforming structures or uses. Because the Setback Decision was made without legal authorization and violated state law, it is ultra vires and therefore void. 1. The Director Exceeded His Authority by Interpreting Unambiguous Regulations and Adopting an Interpretation that Conflicts with the City's Development Regulations and Comprehensive Plan. RMC 4-1-080.A(l) authorizes the Director "to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title." The Setback Decision violated this provision by purporting to interpret regulations that are neither unclear nor contradictory. RMC 4-2-120.E requires a maximum setback for front and side yard along a street of 5 feet. The terms of this provision are clear and straightforward. The maximum setback is five feet. Five feet is a well-known distance. It is sixty inches; 1.39 yards; or 1.27 meters. "Maximum" is a well-defined, unambiguous term: it means "the largest portion in APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -4 Y \WP\ASE\SITE PLAN APPEAI.\ASE RESPONSloS\RESPONSE TO APPLICANT MOTIONS TO DISMJSS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Se.attle, W/~ 98121 (206) 382-9540 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 which matter can exist; the greatest value which a variable may have; a superior limit imposed by authority"1 or "the greatest possible quantity, degree, or number."2 The Director has no authority to modify such a clear and unambiguous regulation. RMC 4-1-080.A(l) also provides that "[ a ]ny interpretation of the Renton Title IV Development Reb'lllations shall be made in accordance with the intent or purpose statement of the specific regulation and the Comprehensive Plan." Contrary to the purpose of RMC 4-2-120.E ("DEVELOPMENT STANDARDS FOR COMMERCIAL ZONING DESIGNATIONS"), the Setback Decision allows gross deviation from the maximum setbacks in that regulation. The Setback Decision also conflicts with provisions of the Comprehensive Plan. The Landing site is located within the Urban Center North-I (UC- Nl) Comprehensive Plan land use designation. The Setback Decision conflicts with several UC-NI policies, including the following: • Policy LU-265: Support more urban intensity of development (e.g. building height, bulk, landscaping, parking standards) than with land uses in the suburban areas of the City outside the Urban Center. • Policy LU-287: Discourage parking lots between structures and street right-of- way. • Policy LU-288: Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District. By interpreting RMC 4-2-120.E to allow modifications of the maximum setback in UC- NI zone, the Director is in fact discouraging more "urban intensity" of development and encouraging parking lots between structures and pedestrian-oriented streets. 1 OXFORD ENGLISH DICTIONARY 1720 (1993). 2 WEBSTER'S NEW COLLEGE DICTIONARY OF THE ENGLISH LANGUAGE 537 (1995). APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -5 Y:\WP',ASE'.SlTE Pu..?>< APPEAL\ASE RESPONSES\RFSPOJs:SE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Se.attle, WA 98121 (206) 382-9540 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 2. The Director's Setback Decision Usurped the City Council's Authority to Amend Development and Zoning Regulations. RMC 4-8-070.l provides that "[t]he City Council shall review and act on the following: ... Development and zoning regulations text amendment." The Setback Decision violated this provision by attempting to amend the development regulations in RMC 4-2-120.E. The Setback Decision goes beyond mere interpretation of RMC 4-2- 120.E. It proposes substantive changes to the Code by adding the setback modification criteria, that appear in RMC 4-2-120.C.15, which apply only in the Commercial Neighborhood (CN) and Center Village (CV) zones, to the provisions ofRMC 4-2-120.E, which apply in the UC-NI zone. Only the Renton City Council has the authority to amend the City's development and zoning regulations. An agency may not legislate under the guise of its rule-making power. Juanita Bay Valley Community Ass'n v. City of Kirkland, 9 Wn.App. 59, 79, 510 P.2d 1140 (1973). The Setback Decision reveals that this is precisely what the Director was attempting to do: This development standard to allow for the modification of the maximum setback requirement in the UC-NI zone subject to the above listed criteria should be included in the annual docket procedure for addition into Title IV. Setback Decision, p. 2 ( emphasis added). This portion of the Setback Decision reveals the proper procedure for effecting the change that the Director has purported to make: enactment of an ordinance by the City Council to amend RMC 4-2-120.E. That procedure is set forth in RMC 4-9-025, which provides as follows: APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -6 Y: \WP\ASE\.SITE PLAN APPEAL',ASE RESPONSESIRESP<J'<SE TO APPLICANT MOT!01'S TO DISMJSS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 text revision process is the means either to suggest a change or to identify a deficiency, or both, in the development regulations. For the purposes of this section, "deficiency" refers to the absence of required or potentially desirable contents of the development regulations. Title 4 development regulation amendment proposals will be processed in accordance with this section, unless specifically exempted below. Any interested party, including applicants, citizens, and government agencies, may submit items to the Title 4 development regulation amendment process. RMC 4-9-025.A-B (emphasis added). The text revision process includes requirements for public notice and a comment period. RMC 4-9-025.G. The Setback Decision failed to follow any of the City's text revision procedures and therefore violated RMC 4-9-025. 3. The Director's Setback Decision Violated the Planning Enabling Act for Code Cities by Amending the City's Zoning Regulations Without a Required Public Hearing. Renton is an optional municipal code city. See RMC 1-5-1.A. Washington's planning enabling act for code cities requires public involvement in the amendment of development regulations. See Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376, 389, 868 P.2d 861 (1994). RCW 35A.63.100(1) provides that "[n]o zoning ordinance, or amendment thereto, shall be enacted by the legislative body without at least one public hearing, notice of which shall be given as set forth in RCW 35A.63.070," which, in turn, provides as follows: Notice of the time, place, and purpose of such public hearing shall be given as provided by ordinance and including at least one publication in a newspaper of general APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -7 Y:\\'VP\ASE\S!TE PLAN Af'l'EAL',ASE RfiPOKSES\RESPOKSE TO APPLICANT MOTIONS TO DISMISS APPl:ALS.012507-2.DOC Buck~Gordon LLP 2025 First.t..veni..1e, Suite 500 Senttle, w.r~ 9812: (206i 382-9S40 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 circulation delivered in the code city and in the official gazette, if any, of the code city, at least ten days prior to the date of the hearing. RCW 35A.63.070. To our knowledge, the City did not provide notice or hold a public hearing before the Director attempted to amend RMC 4-2-120.E. The Director's decision violated the provisions of RCW 35A.63. I 00(1) by attempting to administratively amend the Code without the public notice and participation required by state law for zoning text amendments. The Director's decision characterized "the requirement for a maximum setback in the UC-NI zone without the provision for allowing modifications to this setback requirement through the site plan review process" as "an error in the development regulations." Director's decision, p. 2. While this assertion is not supported by the provisions of the Renton Code or the rules of statutory construction,3 notice is required under RCW 35A.63. l 00 even for such corrections. "[A] correction is included within the meaning of amendment and therefore, requires the same notice as that required for a rezone or an amendment." Responsible Urban Growth Group, 123 Wn.2d at 387, 868 P.2d 861 (1994). Further, it is a false assumption that an "error" was made by allowing variance from setbacks in the Commercial Neighborhood (CN) and Center Village (CV) zones 3 Courts have shown "a long history ofrestraint in compensating for legislative omissions." State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982). APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -8 Y:\WP\ASE\SITE PLAN APPEAL',ASE RESPONSES\RF.SP01'SE TO APPLICANT M(Hl01'S TO DISMISS APPEALS.012507-2.DOC Buck~GordonLLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 without authorizing such modification in the UC-NI zone.4 The CN and CV zones are intended for smaller-scale projects where varying setbacks has much less significance for the City's vision and policies as expressed in the Comprehensive Plan. The setback regulation in the CN and CV zones provides for a maximum of 15 feet, which is not particularly rigorous. On the other hand, the UC-NI zone is tied to very stringent new urbanist parameters involving the streetscape, which is illustrated by the 5-foot maximum. 4. The Director's Setback Decision Violated the Growth Management Act by Amending the Zoning Code without Required Public Notice. The Growth Management Act (GMA) requires public participation m the development and amendment of zoning regulations. See City of Burien v. Central Puget Sound Growth Management Hearings Bd., 113 Wn.App. 375, 53 P.3d 1028 (2002). RCW 36.70A.035(1) provides as follows: The public participation requirements of this chapter shall include notice procedures that are reasonably calculated to provide notice to property owners and other affected and interested individuals, tribes, government agencies, businesses, school districts, and organizations of proposed amendments to comprehensive plans and development regulation. The GMA outlines examples of reasonable notice provisions, including: (i) publishing notice in the newspaper, (ii) "notifying public or private groups with known interest in a certain proposal or in the type of proposal being considered;" (iii) placing notices in appropriate regional or neighborhood journals; or (iv) publishing notice in agency newsletters or sending notice to agency mailing lists. RCW 36.70A.035(!)(c) (emphasis 4 One can easily see that a lot of care went into drafting these setback regulations. The provisions are footnoted with precision. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -9 Y:\Wl'\A.SEISJTE PLAN APPEAL\ASE RESPONSES'.RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck Ci Gordon ccp 2025 Fiest Avem.,e, Su;te 500 Seattle, W/\ 98121 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 added). The City did not utilize any of these notice suggestions. Because the City provided no such notice, the Setback Decision violated GMA's public participation requirements. 5. The Director's Setback Decision Granted a De Facto Variance for The Landing Without Following Legally Required Procedures. The true effect of the Setback Decision was to grant a setback variance to all developments in the UC-NI Zone. Relief from setback regulations is a classic example of an area variance. Hoberg v. City of Bellevue, 76 Wn.App. 357,360,884 P.2d 1339 (1994). An area variance "does not change the specific land use but provides relief from dimensional requirements such as setback, yard size, lot coverage, frontage or height restrictions" ( citations omitted). Hoberg, 76 Wn.App. at 360. This is also termed a "bulk" variance by some courts and commentators. See In re Freshwater Wetlands Statewide General Permits, 185 N.J. 452, 888 A.2d 441 (2006); William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate, Property Law,§ 6.81 (2006). A variance may be lawfully granted only within the guidelines set forth in the zoning ordinance (emphasis added). See Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 884 P .2d 910 (1994 ); see also Orion Corp. v. State, I 03 Wn.2d 441, 693 P.2d 1369 (1985). The Director has no authority to issue a variance for setbacks in commercial developments. RMC 4-9-250.B.(l)(c) authorizes administrative variances only for the following uses: (i) Residential Land Uses; (ii) "Commercial and Industrial Land Uses: Screening of surface-mounted equipment and screening of roof-mounted equipment;" and APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS-10 Y:\\VP\ASE\SITE PU..N APPEAI.IASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TlJ DJSMISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 (iii) Proposals Located Within Critical Areas. Modification to setbacks for The Landing is simply not authorized. These setbacks may not be modified except by the Hearing Examiner through the variance process outlined in RMC 4-9-250.B. See RMC 4-9- 250.B.(l )(a) and RMC 4-8-070.H(l)(p) (authorizing the Examiner to grant "variances associated with a development permit that requires review by the Hearing Examiner"). Because a variance essentially constitutes governmental approval to deviate from the law, local and state laws provide strict guidelines for approval of a variance permit. Renton's code-required variance process mandates public notice and vetting of the application pursuant to 4-9-250.B(4). Variances under the RMC may only be granted "upon making a determination in writing that the conditions specified below have been found to exist": a. That the applicant suffers undue hardship and the variance is necessary because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings of the subject property, and the strict application of the Zoning Code is found to deprive subject property owner of rights and privileges enjoyed by other property owners in the vicinity and under identical zone classification; b. That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated; c. That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is situated; d. That the approval as determined by the Reviewing Official is a minimum variance that will accomplish the desired purpose. (Amd. Ord. 4835, 3-27-2000) RMC 4-9-250.B(S). Similarly, Washington's planning and enabling act for code cities provides that no variance shall be granted unless: APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -11 Y:\WP'ASE\SJTE PLAN APPEAL\ASE RESPONSESIRESPONSE TOAPPI.ICA:..'T MOTIONS TO DIS\.11SS APP~ALS 012507-2 D<X Buck~ Gordon LLP 2025 First A'1enue, Suite 50'.J Sei:lttle, WA 98121 (206) 382-9S4C 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 • • (a) the variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application was filed is located; and (b) that such variance is necessary, because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and (c) that the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated. RCW 35A.63.l 10(2). For these reasons, the Setback Decision was illegal and is void. The Examiner should remand to the Director with instructions to follow the correct, legal procedures for a code amendment or a variance. B. The Setback Appeal Was Timely. I. The Appeal Was Filed Within 14 Days of Actual Notice. The appeals of the Setback Decision were timely because they were filed within 14 days of August 21, 2006, the date of receipt of actual notice of the Director's decision. Appellants did not learn of the Setback Decision until August 21, when they received a copy of the Setback Decision attached to the Site Plan Decision regarding The Landing. See Exhibit A to Second Declaration of Peter Buck ("Buck Deel."). Constitutional due process requires that the Appellants be given notice and an opportunity to object to the application of the Setback Decision to The Landing. Thus, the 14-day appeal period was triggered by actual notice to the Appellants. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -12 Y:\\VP1ASE\SITE PLA~ APPEAL\ASF. RESPONSES\RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC BuckeGordonLLP 2025 First Avenue, Suite 500 Seattle. \NA 98121 (206) 382-9540 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 It is a fundamental principle of due process that interested parties must be given notice of governmental actions that affect their rights. Barrie v. Kitsap County, 84 Wash.2d 579, 585, 527 P.2d 1377 (1974). "For over a century it has been recognized that 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."' Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wn.2d 418, 422, 511 P.2d 1002 (1973), citing Baldwin v. Hale, 68 U.S. 223, 233, 17 L.Ed. 531 (1863). Notice must be "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id., citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (internal quotation marks omitted) ( emphasis added). Due process is a fluid concept that must be adapted to the particular circumstances of each action taken by the City. "The procedural safeguards afforded in each situation should be tailored to the specific function to be served by them. Olympic Forest Products, 82 Wn.2d at 423, citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). In determining the specific procedures required by due process, courts consider the following factors: The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, ( and) the balance of hurt complained of and good accomplished. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -13 Y:\WP\ASE\SITE PLA:-J Al'PEALIASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TO OISMJSS APPEALS O 12507-2.DCX: Buck~ Gordon LLP 2025 F-irsi: Avenue, Su:te 500 Seattle, WA 98121 {206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 • Id. at 423-424, citing Joint Anti-Fascist Refagee Committee v. McGrath, 341 U.S. 123, 163, 71 S.Ct. 624, 95 L.Ed. 817 (1951). (Frankfurter, J., concurring.) At a minimum, the circumstances of this case require that the appeal period for the Setback Decision be triggered by actual knowledge and that the Appellants be given an opportunity to object: • The precise nature of the interest that has been adversely affected. Appellants have a strong and well-articulated interest in the City's enforcement of its development regulations in general and the setback requirements in the UC-NI zone in particular. This interest is greatly prejudiced by the Director's attempt to amend these regulations in a hidden administrative decision, bypassing the required public process and City Council approval. • The manner in which this was done and the reasons for doing it. The manner in which the City has attempted to deprive Appellants of the opportunity to object to the Setback Decision, and the City's reasons for doing so, suggest administrative sloppiness at best and intentional abuse of process at worst. • The available alternatives to the procedure that was followed. The available alternatives to the City's actions are clear. A variance could have been pursued. See Section III.A.5 supra. A code amendment could have been considered by the City Council in compliance with RCW 35A.63.100 and RCW 36.70A.035. • The protection implicit in the office of the fanctionary whose conduct is challenged. There is no protection implicit in the Director's office. The Director has repeatedly demonstrated a willingness to disregard City codes and take actions that exceed his authority. • The balance of hurt complained of and good accomplished. The balance of interests at stake weighs strongly in favor of allowing Appellants to proceed with their appeals of the Setback Decision, as discussed in detail below. 22 The Applicant claims that Appellants are implying "that the City [must] anticipate 23 and provide actual notice of every administrative decision to every potentially 'affected' 24 25 APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -14 Y·\WP\ASE''.S!TE PIA~ APPEAVASE RESPONSES\RF.SP01'--SE TO APPLICANT MOTIONS TO DJSM!SS AFPEALS.012507-2.00C Buck G!" Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 • party, regardless of that party's relation to the decision."5 That is not what ASE and Nicholson have argued regarding administrative decisions (as opposed to code amendments, which require wide distribution of public notice). Appellants' position regarding the notice required for administrative interpretations is simple and eminently reasonable: If the City wants to rely on an interpretation decision made in one project to justify its decision in a second project, it must afford parties of record and parties with demonstrated interest in the second project a reasonable opportunity to object when the interpretation is applied to the second project. The City can do so by either 1) providing notice of the interpretation decision to such parties; or 2) treating the interpretation decision as part of the decision on the second project.6 The Applicant and the City had ample notice that Appellants were interested in, and would be affected by, the Setback Decision. Appellant ASE, a party of record for The Landing, has reviewed project files for The Landing on a regular basis. Nicholson has been an outspoken opponent, both personally and as a member of ASE. Indeed, the Applicant concedes that Appellants have been closely monitoring City activities regarding The Landing. 7 Appellants' position would not unreasonably burden the City. By contrast, the Applicant's position would irreversibly prejudice the Appellants in this case and burden appellants in all other proceedings. 5 Applicant's Motion to Dismiss Appeals of Interpretation/Policy Decision at 7 ("If ASE and Mr. Nicholson were truly interested in development and impacts in the UC-NI zone, they would have been monitoring Lowe's to the same extent they were monitoring The Landing"). 6 More fundamentally, this is not an administrative determination as suggested by Respondents. It is a legislative decision amending the Renton Code. 7 Id. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -15 Y:IWP'•ASEISJTE PLAN APPEAL·ASE RESPO:-.ISES\RESPONSE TO APPLICANT MOTIO?><S TO DISMISS APPF.ALS.012507"2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 1206) 382-9540 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's failure to provide any opportunity to object to the Setback Decision constitutes an ongoing due process violation. This is particularly true of a decision that attempts to administratively amend the City's development regulations. To the extent that the Setback Decision was in fact a code amendment and not an "interpretation," the City should have provided notice not only to "groups with known interest in" The Landing (such as ASE) but also to the general public by publication. See RCW 36.70A.035(1). Based on principles of fairness and due process, Washington courts have developed a judicial exception to the strict application of time limits for review of certain land use decisions. Pierce v. King County, 62 Wn.2d 324, 334-35, 382 P.2d 628 (1963). The court in Pierce held that, where appellants lack knowledge of a zoning decision that affects them, the time for appeal runs from the date of actual knowledge: If petitioners are in a situation where they would not normally be expected to learn of the legislative action, where they are directly affected by it, and where they do not have actual knowledge, the time for the commencement of certiorari begins with acquisition of knowledge or with the occurrence of events from which notice ought to be inferred as a matter of law. A different rule would permit zoning departures of the most drastic nature from the comprehensive zoning plan and would leave persons most detrimentally affected thereby without redress in the courts against arbitrary legislative action. 62. Wn.2d at 334 (emphasis added). Courts have applied the rule in Pierce to zoning interpretations like the Setback Decision. In Gifford v. County of Spokane, 9 Wn.App. 109, 510 P.2d 1166 (1973), the planning director interpreted a zoning ordinance without notice or a public hearing. Adjoining landowners sought review of the director's interpretation. The applicant sought APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -16 Y:\WP\ASE\SITE PLAN APPEAL'ASE RESPONSES"RfSPONSf TO APPLICANT MOTIONS TO D!SM1SS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Sea\tle, WA 98121 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to dismiss because no appeal was taken within five days as required by the county code. The court of appeals held that "in these circumstances, it would be inherent! y unfair to deny the adjoining landowners a right of review where they had no knowledge of the action taken and acted promptly upon obtaining knowledge." Gifford, 9 Wn.App. at 113. Here, like the appellants in Gifford, the Appellants took action as soon as they obtained actual knowledge of the zoning interpretation. 2. The Appeal Was Filed Within 14 Days of The Setback Decision's Appearance in the Site Plan Decision. In the alternative, the appeals of the Setback Decision were timely because they were filed within 14 days of August 17, 2006, the date of the City's issuance of the Site Plan Decision (which relied on and incorporated the Setback Decision). The Applicant's motion suggests that the appeal period for interpretations 1s "triggered by the date of the decision ... implementing the Interpretation Decision."8 Here, the relevant decision implementing the Interpretation Decision is the Director's Site Plan Decision for The Landing, not (as the Applicant would prefer) the Lowe's Decision. Again, the Applicant has taken a position that would unreasonably burden citizens seeking to ensure that the City abides by its policies and procedures. C. Nicholson Perfected His Appeals By Exceeding RMC Requirements for Appeal Notices. The appeal notices regarding the Setback Decision and the Site Plan Decision (the "Appeal Notices") filed by ASE and Brad Nicholson complied with all RMC 25 'Id. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -17 Y:"..\\/P\ASE,SITE PU.N APPl!AL\ASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seatt!e, WA 98.121 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • requirements for administrative appeals. The Appeal Notices also made it abundantly clear that they were filed by both ASE and Nicholson. Notwithstanding the Applicant's and the City's attempts to engraft formatting guidelines found in court rules onto the RMC and to re-write RMC provisions regarding appeal fees, the Appeal Notices complied with (and exceeded) all RMC requirements for appeal notices. The only requirements in the RMC regarding the form of appeal notices are the following: Any appeal shall be filed in writing. The written notice of appeal shall fully, clearly and thoroughly specify the substantial error( s) in fact or law which exist in the record of the proceedings from which the appellant seeks relief. The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170, the fee schedule of the City. RMC 4-8-l 10.C(3)-(4). The Appeal Notices met each of these requirements. In fact, the Appeal Notices include a level of detail that far exceeds minimum requirements in the RMC: • Any appeal shall be filed in writing. The Appeal Notices was filed in writing. The Applicant and the City do not argue that Nicholson failed to meet this requirement. • The written notice of appeal shall fully, clearly and thoroughly specify the substantial error(s) in fact or law which exist in the record of the proceedings from which the appellant seeks relief The Appeal Notices describe the errors in the Setback Decision and the Site Plan Decision in great detail. Again, the Applicant and the City do not argue that Nicholson failed to meet this requirement. Indeed, the Appeal Notices exceed the RMC's minimum requirements. In addition to discussing the grounds for appeal, the Appeal Notices also include sections discussing issues such as timeliness and standing. • The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1- 170. the fee schedule of the City. The notice of appeal was accompanied by the APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -18 Y:\WP'•ASE'-S!TE PLAN APPEAL,'ASE RESPO:,.CS[S\RESPONSE TO APPUCA1''T Mono:srs TO DISMISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, SLite 500 Seattle, WA 98121 (2061 362-9540 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 • proper fee. Here, "the notice of appeal" for each appeal (filed by ASE and Nicholson) was accompanied by "a fee" of $75 in accordance with RMC 4-1-170. Nothing in this or any other section of the RMC prohibits multiple appellants from filing a single notice of appeal. Nor does the RMC require the payment of dual fees when a single notice of appeal is filed by two appellants. Because the Appeal Notices plainly complied with all RMC requirements, the Applicant and the City attempt to rely on other sources to support their arguments. For example, the Applicant cites "analogous court rules" but fails to indicate why these rules should be relevant in these proceedings.9 Proceedings before a quasi-judicial administrative body such as the Hearing Examiner are not governed by formal rules of judicial procedure. Van Sant v. City of Everett, 69 Wu.App. 641, 647, 849 P.2d 1276 (1993); see also Bartz v. Board of Adjustment, 80 Wn.2d 209, 221, 492 P.2d 1374 (1972). If these rules have any effect, they support the Appellants' position. The Applicant argues that these rules "make clear that all pleadings ... should include the names, addresses, and Washington State Bar Association membership numbers of the attorneys for each party, if any, and should be signed and dated by the attorneys or the parties."10 In fact, the Appeal Notices complied with each of these alleged requirements: they were signed and dated by Peter Buck, attorney for Brad Nicholson, and included Mr. Buck's name, address, and WSBA membership number. While the signature block of the Appeal Notices did not directly state that Mr. Buck was acting as attorney for Nicholson, that is 9 See Applicant's Motion to Dismiss Appeals of Interpretation/Policy Decision at JO; see also Applicant's Motion to Dismiss Appeals of Site Plan Approval at 7. 10 Id. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -19 Y:IWP'ASE\SJTE PLAN APPEAL\ASE RESPONSES'-RFSPONSE TO APPL!CA"IT MOTIONS TO 0JS~1SS APPEALS O 12507-2,DOC Buck€1Gordon LLP 2025 First Aver1ue, Suite 500 Seattle, WA 98121 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • not a requirement of these court rules. (It certainly is not a requirement of the RMC.) The arguments advanced by the Applicant are contrary to the very purpose of the civil rules: The basic purpose of the new rules of civil procedure is to eliminate or at least to minimize technical miscarriages of justice inherent in archaic procedural concepts once characterized . . . as the sporting theory of justice. Thus, whenever possible, the rules of civil procedure should be applied in such a way that substance will prevail over form. First Fed. Sav. & Loan Ass'n v. Ekanger, 93 Wn.2d 777, 781, 613 P.2d 129 (1980) (internal citations omitted). Moreover, RAP 5.3(f), cited by the Applicant, provides as follows: Defects in Form of Notice. The appellate court will disregard defects in the form of a notice of appeal or a notice for discretionary review if the notice clearly reflects an intent by a party to seek review.11 Here, Nicholson's intent to seek review is unmistakable. The first sentence in each of the Appeal Notices reads: "The Alliance for South End (ASE) and Brad Nicholson hereby file this Notice of Appeal ... " (emphasis added). The caption of each of the Appeal Notices reads: "In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson ... " (emphasis added). Each of the Appeal Notices discuss Nicholson's interests in and legal standing to challenge the Setback Decision and the Site Plan Decision. If there is any doubt as to Nicholson's intent to seek review or Buck & Gordon's representation of Nicholson, the declarations filed with this motion irrefutably establish these facts. See Second Declaration of Peter L. Buck at ,i 2 and Second Declaration of 11 See also RCW 4.36.240: "The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -20 Y:IWP'ASE\SITE PLAN APPEAL'ASE RESPONSES'.RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seactle, WA 98121 (206) 382-9S40 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Brad Nicholson at ,i 2. The RMC does not require that the attorneys for each party file a Notice of Appearance in order to seek review. Like the Applicant, the City looks outside the RMC to support its arguments that ASE and Nicholson should have filed two appeal notices with two appeal fees for each appeal. These outside sources do not change the fact that the RMC contains no such requirement. The City's reliance on the Declarations of Bonnie Walton, for instance, is misplaced. These declarations state that the City's receipts for each of the two $75 checks tendered by Buck & Gordon LLP "indicate[ d] the appeal is by ASE, not Brad Nicholson." Walton Deel. at ,i 7. This statement is false. The copies of the receipts attached to the City's motions contain no such notation. And if the receipts had contained a notation made by Ms. Walton, that would be evidence of nothing except perhaps Ms. Walton's personal opinion. The checks submitted by ASE and Nicholson alsodo not indicate that the appeals were filed by only one party. That is because the appeals were filed by both ASE and Nicholson. See Exhibit C to Buck Deel. Similarly, the fact that dual appeal notices were filed and two appeal fees submitted by Misty Cove and Steve Jenson in an unrelated appeal has no legal significance whatsoever. As discussed above, the RMC does not require or even suggest that two appellants may not file a single appeal or that two appellants filing the same appeal must pay separate appeal fees. The fact that the City has offered such irrelevant evidence only underscores the lack of any real support in the RMC for the City's arguments. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -21 Y:\WP\.ASE\SJTE PIAN APPEAL\ASE RESPO?s/SES\RESPONSE TO APPLICA1'T Mono~s TO DISMISS APPEALS.012507-2.D<X Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The City concedes that Ms. Walton accepted the Appeal Notices and a $75 check for each appeal without comment or objection. See Walton (Interpretation/Policy Decision) Deel. at ,r 7 ("My office did receive ... a Notice of Appeal of the Director's Interpretation/Policy Decision as well as a check in the amount of $75); Walton (Site Plan Approval) Deel. at ,r 7 ("My office did receive ... a Notice of Appeal of the Director's Administrative Site Plan Approval as well as one check in the amount of $75). Ms. Walton did not request additional checks or reject the Appeal Notices. If the City wants to collect separate appeal fees, the Appellants will pay those fees under protest. Appellants have tendered two additional checks for $75 each (one for each of the Appeal Notices) under separate cover. But having accepted the Appeal Notices filed by ASE and Nicholson, the City cannot now use the lack of a fee at the time of filing as an excuse to eliminate Nicholson's appeal. Finally, the City suggests that the presence of Nicholson's name under the signature block on the Stipulation and Order filed on December 11, 2006, somehow supports its position. This argument ignores the absence of any provision in the RMC that requires appeals to contain any signature at all. The City's and the Applicant's arguments are also contradicted by the language of Recital F of the Settlement Agreement referenced in the Stipulation and Order: "ASE and Nicholson filed appeals of the Director's Site Plan Decision and the Director's Administrative Zoning Interpretation. These appeals [are] currently pending before the Renton Hearing Examiner."12 By signing the Settlement 25 12 See excerpt from Settlement Agreement, attached as Exhibit B to Buck Deel. (emphasis added). APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -22 Y:\Wf",ASE-.SITE PLAN AJ>PEALIASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck Ci Gordon LLP 2025 Fir5t Avenue, Suite 500 Seattie, WI~ 9812: (206) 382-9540 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 Agreement, the City and the Applicant acknowledged that both ASE and Nicholson filed the appeals and that the appeals were pending before the Hearing Examiner. Even assuming, for the sake of argument, that the form of the Appeal Notices was somehow defective or that the Appellants should have filed dual notices or submitted dual fees, such defects would be harmless and would certainly not warrant dismissal of Nicholson's appeals. Despite voluminous pleadings, the Applicant and the City cite not one provision of the RMC, not one case, nor one sentence of policy why failure to file dual appeal statements, failure to list an appellant's name in a signature block, or failure to pay any fee (much less a dual fee for one appeal by two parties) would be a jurisdictional error. See Griffith v. City of Bellevue, 130 Wn.2d 189,192,922 P.2d 83 (1996) (holding that a signed verification is not a jurisdictional requirement). Any claim of ambiguity or surprise on the part of the City or the Applicant is disingenuous. ASE and Nicholson filed Appeal Notices that complied with all formatting requirements of the RMC and each of the Appeal Notices was accompanied by a fee. That is all that the RMC requires. The Applicant's and the City's arguments to the contrary are without merit. D. Nicholson and ASE Have Standing as to the Setback Decision and the Site Plan Decision. Brad Nicholson and ASE have standing and a legal right to proceed with these challenges of the City's decisions regarding a project that significantly impacts Nicholson APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -23 Y:\WP\ASE\SITE PLA:-.1 APPEAL\ASE RESPONSES\RESPONSE TO APPLICANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 • and ASE's other members. The Applicant's arguments to the contrary grossly mischaracterize the law of standing in Washington and in Renton and should be rejected. 13 I. Legal Requirements for Standing. a. Individual Standing. The Renton Municipal Code (RMC) sets forth the legal requirements for standing relevant to appeals of administrative determinations: Standing for Appeals of Administrative Determinations other than Environmental: Appeals from administrative determinations of the City's land use regulation codes and from environmental determinations required by the Renton environmental review regulations may be taken to the Hearing Examiner by any person aggrieved, or by any officer, department, board or bureau of the City affected by such determination. RMC 4-8-11 O.E(3)(b ). The RMC contains additional standing provisions for appeals relating to the City's Site Development Plan Review Ordinance, which is at issue in these appeals: Any appellant must be seeking to protect an interest that is arguably within the zone of interest to be protected or regulated by this Section, must allege an injury in fact, and that injury must be real and present rather than speculative. RMC 4-9-200.N. The RMC contains no other standing requirements relevant to this appeal. These provisions of the RMC mirror Washington case law regarding standing. To show an injury in fact, the plaintiff must allege specific and perceptible harm. Kucera v. 13 Appellants have filed a separate Motion for Declaratory Ruling Regarding Standing and two declarations that further establish the standing of both Nicholson and ASE. The facts, authorities and arguments in those pleadings are incorporated herein by this reference. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -24 Y:\WP"s.ASE\SJTE PLAN APPEAL 'ASE RESl'ill<SES\RESPONSE IO APPLICANT MOT!OM TO [)JSMJSS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 Fi,st Avenue, Suite 500 Seattie, WA 98121 (206) 382-9540 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Dept. of Transportation, 140 Wn.2d 200,213, 995 P.2d 63 (2000). If the plaintiff alleges a threatened rather than an existing injury, "he or she must show an immediate, concrete, and specific injury." Trepanier v. City of Everett, 64 Wn.App. 380, 383, 824 P.2d 524 (1992). The zone of interest test "serves as an additional filter limiting the group which can obtain judicial review of an agency decision" but "is not meant to be especially demanding." Chelan County v. Nykreim, 146 Wn.2d 904, 937, 52 P.3d 1 (2002), citing Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 797, 920 P.2d 581 (1996) (internal quotation marks omitted). b. Associational Standing. Under the doctrine of associational standing, an organization has standing to bring suit on behalf of members when the following criteria are satisfied: (!) the members of the organization would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither claim asserted nor relief requested requires the participation of the organization's individual members. International Ass'n of Firefighters. Local 1789 v. Spokane, 146 Wn.2d 207, 213-214, 45 P .3d 186 (2002). Under the RMC and Washington case law, no particular structure is required of an organization before it can have associational standing. Accordingly, the courts have consistently held that a citizens' group or other organization has standing to challenge land use decisions "as long as one member has standing to do so." East Gig Harbor Imp. Ass'n v. Pierce County, 106 Wn.2d 707, 701, 724 P.2d 1009 (1986) (emphasis added), APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -25 Y:" WP'-ASE\SJTE PLAN APPEAL'-ASE RESPONSES\ RESPONSE TOAPPLJCA:-IT MOTIONS TO 0IS\11SS APPlALS.012507-2.D<X Buck~ Gordon LLP 2025 First Aver,ue, Suite 500 Se<1ttle, WA 9812~ (206) 382-9540 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 • citing Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 867, 576 P.2d 401 (1978); see also Suquamish Indian Tribe, 92 Wn.App. 816, 830, 965 P.2d 636 (citing East Gig Harbor Imp. Ass'n and SAVE for proposition that "an organization has standing only when at least one of its members has standing as an individual"). None of these cases hold or even suggest that a member must have particular rights in the organization, or that any other inquiry should be made once it has been established that at least one member of the organization has standing. To the contrary, Washington courts disfavor hypertechnical applications of associational standing rules. See International Ass'n of Firefighters, 146 Wn.2d at 216 ("[W]e see little sense in an ironclad rule that has the effect of denying relief to members of an association based upon an overly technical application of the standing rules"). To our knowledge, no state or federal court has ever held that members of an organization must possess "indicia of membership" in order for the organization to have standing. The cases cited by the Applicant in their motions and in earlier proceedings before the Hearing Examiner do not support this proposition. The question presented and answered in the three cases cited by the Applicant was not whether members of an organization must have voting rights in order to assert associational standing, but whether "an organization that has no members in the traditional sense may nonetheless assert associational standing." See Fund Democracy, LLC v. S.E.C., 278 F.3d 21, 25 (D.C. Cir. 2002). Those cases hold that, if an association does not have any members, but asserts that its has standing to sue on behalf of non-member "supporters," then a court may inquire APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -26 Y:\WP\ASE\S!TF: PtA~ APPEAL'ASE RESPONSF.S\RESP01'.SE 10 APPLICANT MOTIONS TO OISM!SS APPEALS.012507-2.DOC Buck~GordonLLP 2025 F'1rst Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 into whether its supporters possess "indicia of membership." Id. at 26. The Applicant's repeated assertions that "members" must possess "indicia of membership" are simply false. In fact, one of the cases cited by the Applicant directly contradicts the Applicant's position. In Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. 2002), the court explicitly stated that the nonprofit would have standing if it had any members: Friends initially asserted in Superior Court that it had standing to sue on behalf of its members, whom it described as persons residing in the vicinity of 3883 Connecticut Avenue who recreate in and enjoy the benefits of nearby Rock Creek Park. We do not doubt that if Friends had such members, it would have standing as their representative to maintain an action challenging the District's failure to require Clark to prepare an EIS ... The persons whom Friends claims to represent are not its members, however. By the terms of its articles of incorporation, Friends has no members. Confronted with this inconvenient fact, Friends argues in this court that it nonetheless has standing to sue as the representative of its "supporters" among the neighborhood residents whose environmental interests are at stake. These supporters, Friends suggests, are its de facto if not its de jure members. The record, though, does not bear out this claim. Friends, 806 A.2d at 1208 (emphasis added). See also Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (holding that the Commission had associational standing even though "the apple growers and dealers are not 'members' of the Commission in the traditional trade association sense") (emphasis added); Fund Democracy, 278 F .3d at 25 (stating that, "[i]n determining whether an APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -27 Y:·WP°'ASE\SiTE PLAN APPEAL'ASE RESPO:-.ISES\R~SPONSF TO APPUC'Al\T MOTIOSS TO [)JSM.JSS APPEALS.012507-2.DOC Buck t;i, Gordon LLP 2025 First A'1enue, Suite 500 Seattle, WA 98121 (2iJ6) 382-9540 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 organization that has no members in the traditional sense may nonetheless assert associational standing, the question 1s whether the organization 1s the functional equivalent of a traditional membership organization") ( emphasis added). 2. Brad Nicholson Has Standing to Challenge the Director's Decisions. The allegations in the Appeal Notices and the declarations filed by Appellants conclusively establish that Brad Nicholson is directly affected by and therefore has standing as to both the Setback Decision and the Site Plan Decision. The Applicant's arguments mischaracterize Renton's Site Development Plan review process and gloss over the unique harms that Nicholson will suffer as a result of these decisions, due to his close proximity to and interest in The Landing site. See Second Declaration of Brad Nicholson at ,r 3. a. Nicholson Has Standing as to the Setback Decision. Nicholson was immediately aggrieved by the Setback Decision. As a result of the Setback Decision, he has been unable to comment, participate, and voice objections to the City Hearing Examiner and/or the City Council on what is, in effect, an amendment of the City's development regulations and the integrity of setbacks in the UC-NI zone. Second Nicholson Deel. at ,r 4. He desires to have his community planned and developed consistent with the provisions of the Renton Comprehensive Plan and development regulations, including the UC-N 1 regulations. Id. He is aggrieved by the City's denial of his rights to such a community due to the fact that the Setback Decision attempts to APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -28 Y:\WP'IASE•S!TE Pl.AN APPEAL\ASE RESPONSES\RF.S?Oi\'SE TO APPL!( ANT MOTIONS TO DISMISS APPEALS.012507-2.DOC Buck~Gordon LLP 2025 Fir5tAvenue, Suite 500 Seattle, WA 98121 (206) 382-9540 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 • administratively eliminate the protection of maximum setbacks designed to implement an urban village concept. Id. By ignoring the procedural protections contained in the Renton Municipal Code and state law, the Setback Decision deprived him of the opportunity to object to the use of setbacks that are contrary to the letter and the spirit of the UC-NI regulations and the Renton Comprehensive Plan. Id. He will be further injured if The Landing is built with setbacks that violate Renton Code requirements. Id. at 'IJ 5. These harms are unique to Nicholson. Id. at 'IJ 3. b. Nicholson Has Standing as to the Site Plan Decision. Nicholson's allegations of injury from the Site Plan Decision relate directly to the Renton Code provisions with which the Site Plan fails to comply. For example, his allegations of procedural harm relate to the procedural protections in RMC 4-9-200.D and RMC 4-9-200.G. See Second Nicholson Deel. at 'IJ 5. In particular, he is harmed by the City's failure to conduct a consistency review for the Site Plan (RMC 4-9-200.G(8)), failure to refer the Site Plan to the Environmental Review Committee for a determination of the necessity for a public hearing (RMC 4-9-200.G(9)), failure to refer the Site Plan to the Hearing Examiner for a decision (RMC 4-9-200.G(12)), and failure to hold a public hearing before the Hearing Examiner regarding the Site Plan Decision (RMC 4-9-200.D) or any other decision approving The Landing project. Id. In the absence of a public hearing, Nicholson was unable to voice his concerns about the City's failure to mitigate impacts such as traffic and stormwater. Id. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -29 Y:\WP·ASE,SITE PLAN APPEAL'ASE RESPONSES\RESPONSE TO APPL!CA1''T Mono:-:s TO D!S.\11SS APPEALS.012507-2 D<X Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121 (206) 382-9S4G • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Nicholson's allegations of substantive harm relate to the Site Plan review criteria contained in RMC 4-9-200.E and RMC 4-9-200.F with which The Landing's Site Plan fails to comply. For example, the site plan must conform to the Comprehensive Plan's elements, goals, objectives and policies (RMC 4-9-200.E(l )( a)), must conform to existing land use regulations (including the regulations regarding maximum setbacks in the UC-NI zone) (RMC 4-9-200.E(l)(b)), and must mitigate impacts (such as traffic and stormwater) to surrounding properties and uses (RMC 4-9-200.E(l)(c)). See Second Nicholson Deel. at ,i 5. Because the Site Plan for The Landing fails to meet these and other Site Plan review criteria, Nicholson has already been injured by the City's failure to follow its own laws. Id. If The Landing is built according to this noncompliant Site Plan, he will suffer harm from the inappropriate presence of a suburban-style development in an urban zone, decreased property values, damage to the appearance of the City, and failure to achieve the required employment base. Id. The Applicant misrepresents the scope of the Site Plan review process, suggesting that its purpose is limited to "the detailed arrangement of project elements."14 But the RMC states that "[ a Jn additional purpose of Site Plan is to ensure quality development consistent with City goals and policies." RMC 4-9-200.A(2) ( emphasis added). As the Examiner is aware, the RMC provides for "tiered" but redundant review of certain project elements during Master Plan and Site Plan review. That is why the decision criteria for site plans and master plans include "General Review Criteria for Both Master 25 14 Applicant's Motion to Dismiss Appeals of Site Plan Approval at 4. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -30 Y·\WP',ASE'.SITF. Pl.A'./ APPEAL\ASE RESP0NSES1RE$PQ1-,-SE TO APPLICANT MO! IONS ·1 0 DISMISS APPEALS.012507-2.DOC Buck (,l\ Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 9812" (206) 382-9540 • • 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 • Plans and Site Plan Review," such as conformance with land use regulations and the Comprehensive Plan, as well as mitigation of impacts to the site and to "surrounding properties and uses." Id. This express redundancy could only have been intended to provide the reviewing official with broad authority during Site Plan review to consider any impacts that may not have been addressed during Master Plan review. See RMC 4-9- 200.E ("The Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies and the criteria in this subsection and in subsection F of this Section, as applicable."). For obvious reasons, the impacts alleged by Appellants were not addressed during Master Plan review. They should be addressed now, before it is too late. Nicholson is precisely the type of person who should routinely be granted standing to challenge land use decisions like the Setback Decision and the Site Plan Decision. It is difficult to imagine a person whose injuries would be more "direct" or "particularized." Under the Applicant's interpretation of the law, no one would have standing to challenge these decisions. 3. ASE Has Associational Standing to Challenge the Director's Decisions. ASE has standing to bring these appeals on behalf of its members because all three prongs of Washington's associational standing test are easily satisfied: Brad Nicholson and other ASE members have standing to sue in their own right; ASE is seeking to protect interests germane to its purpose; and the claims and requested relief do not require the participation of ASE members. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -31 Y ;·.WP'>ASE\Sn ~ PLAN APPEAL'ASE RESPONSES\RESPONSE TO APPLICANT MOTIOXS TO DIS,\.1ISS APPEALS.012507-2.DOC Buck~ Gordon LLP 2025 Fir.:,t Avenue, Suite 500 Seattle, WA 98121 (206) 382-9540 ' I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a. ASE' s members have standing to sue in their own right. As discussed above, Brad Nicholson has standing to bring these appeals. ASE has other members who are Renton residents, are similarly situated to Nicholson, and are aggrieved by the Director's decisions. Nicholson Deel. at '1[7. These other members have standing for the same reasons that Nicholson has standing. However, they have chosen to remain anonymous because they fear reprisals from the City. See Nicholson Deel. at 'I[ I 2. Washington law requires only that "one member" of an organization have standing in order to confer associational standing on the organization. East Gig Harbor Imp. Ass 'n, 106 Wn.2d at 701. Here, because Brad Nicholson and other ASE members have standing to sue in their own right, ASE has associational standing to sue on their behalf. Unlike the "supporters" of the organizations in Friends of Tilden Park, Hunt, and Fund Democracy, supra, Brad Nicholson and other ASE members are "members in the traditional sense." In determining whether an organization has associational standing, courts consider the "individual who is one of many harmed ... [ and who] may be unable to afford the costs of challenging the action himself." See SAVE a Valuable Environment (SAVE) v. Cit of Bothell, 89 WN2d 862, 867, 576 P.2d 401 (1979). This is precisely the situation in this case: because Brad Nicholson was unable to afford the costs of challenging the action himself, he chose to ally himself with ASE.15 Even if the cases cited by the Applicant could be interpreted to require ASE's members to possess "indicia of membership," this test has clearly been satisfied. As 15 However, because the Hearing Examiner dismissed a previous set of ASE's appeals on standing grounds, these appeals were filed on behalf of both ASE and Nicholson out of an abundance of caution. APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -32 Y:\WP''ASE\SJTE PLAN APPEAL'ASE RF.SPONSF.S\RESPONSF: TO APPLIC'.AVT MOT!O\/S TO DTS\.11SS APPEALS.012507-2 DOC Buck~Gordon LLP 2025 First Avenue, Suite 500 Seattle, Wi-'\ 98121 (206) 382-9540 • 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 discussed in Appellant's Motion for Declaratory Ruling Regarding Standing, ASE's by- laws provide for control of ASE by its members. ASE is seeking to protect interests germane to its purpose. ASE's purpose is to "advance its members' interest in the environment, land use planning, and governmental fiscal integrity of the City of Renton." See Nicholson Deel. at ,i 9. ASE is seeking to protect interests that are not only "germane to" but are identical to this purpose. These appeals are a direct manifestation of ASE's corporate purpose. b. The claims and requested relief do not require the participation of ASE members. The ultimate question in the third prong of the associational standing test is "whether the circumstances of the case and the relief requested make individual participation of the association's members indispensable." International Ass'n of' Firefighters, 146 Wn.2d at 213-214 (internal citations and quotation marks omitted). The claims asserted and the relief requested in these appeals require no participation by ASE members whatsoever. The appeals seek only to have the Director's decisions remanded and do not seek monetary damages. Compare International Ass'n of Firefighters, 146 Wn.2d at 213-214 (finding that third prong was established despite the fact that the organization was "seeking monetary damages and not injunctive relief"). !Ill Ill/ /Ill /Ill APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -33 Y:\WP\ASE'cSITE Pl.AN APPEAL•ASE RESPO:-.SES\RESPONSE TOAPPLICA1'T Monoi-;s TO D1SM1SS ArPcALS.012507-2.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, \VA 961?1 (206) 382-9540 • 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 IV. CONCLUSION For the reasons stated above, the Applicant's and the City's motions to dismiss the Appellants' appeals of the Setback Decision and the Site Plan Decision should be denied. Appellants respectfully request that the Hearing Examiner enter an order denying the Applicant's and the City's motions. Dated thi~i~ofJanuary, 2007. . LLP By: __ ___)JiJ_____,b___'-:::"_~~~ Peter L. Bue Attorneys for Alliance for the South End and Brad Nicholson APPELLANT'S RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS -34 Y:\\VP··.AS[,SJTE PLAN APPEAL\ASE RESPONSES\RE~POJ\SE TO APPLICANT MOT!ONS TO DlSMISS APPEALS O 12507-2.DO<' Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seatt!e, WA 98121 (206) 382-9540 2 3 4 5 6 7 8 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for the South End (ASE) and Brad 9 Nicholson re: ) ) ) ) ) ) ) ) ) ) ) No. LUA-06-071, SA-A SECOND DECLARATION OF PETER BUCK 10 The Director's Administrative Plan Approval 11 And 12 The Director's Administrative Interpretation/ 13 14 15 16 17 18 19 20 21 22 23 24 25 Policy Decision _______________ ) I, PETER BUCK, do hereby declare: I. Buck & Gordon LLP represents the Alliance for the South End (ASE) and Brad Nicholson in this matter. The following is based on my personal knowledge. 2. The firm has formally represented Brad Nicholson since August of 2006. When the Hearing Examiner dismissed earlier appeals filed by ASE, we decided that it would be prudent to file future appeals in Brad Nicholson's and ASE' s names. On August 31, 2006, we filed appeals in two decisions on behalf of Nicholson and ASE: the Interpretation/Policy Decision issued on July 17, 2006 (the "Setback Decision") and the Administrative Site Plan Approval for The Landing issued on August 17, 2006 (the "Site Plan Decision"). From my face-to-face encounters with attorneys for the City and Harvest, it was made patently obvious that Buck & Gordon LLP represented Nicholson in this matter. SECOND DECLARATION OF PETE BUCK -I Y \WP\ASE\SITE PLAN APPEAl.\1\SF. RESPO:-lSES\BUCK DECLARATION 012607 DOC ORIGINAL Buck c, Gordon LLP 2C25 First AvenL.·e, Suite JOG Seattle, WA 9812'· 3140 (206) 382 9540 1 3. We received a copy of the Director's Site Plan Decision on August 21, 2 2006. Attached hereto as Exhibit A is a true and correct copy of the first page of that 3 decision, date stamped August 21, 2006. 4 5 6 4. Attached hereto as Exhibit B is a true and correct copy of the second page of the Settlement Agreement referenced in the Stipulation and Order entered into by the parties to this appeal on, or about, December 11, 2006. 5. Attached hereto as Exhibit C is a true and accurate copy of cancelled 7 checks submitted by ASE and Nicholson with their appeals of the Setback Decision and 8 the Site Plan Decision, one check for each appeal. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. ~ Executed at Seattle, Washington this __&ay of January, 2007. SECOND DECLARATION OF PETE BUCK· 2 Y '.WP°'ASE\SJTE PLAN APl'l<,AL\ASE RESPONSES\llUCK DECLAR.ATION 012607 DOC Buck@Gordon LLP 2025 F;rst A•1enue, Sui~e 500 Seattle, WA 98121-3"140 (206) 382-9540 Rl::'CE'V"-~ .:-~i.~LJ REPORT City of Renton AUG 2 1 2006 Department of Planning I Building I Public Works & BUCf< & GORDO! DECISION ADMINISTRATIVE LAND USE ACTION DECISION DA TE: August 17, 2006 Project Name: The Landing Site Plan Owner: Transwestern Harvest Lakeshore LLC, 8214 Westchester Drive ste 650, Dallas, TX 75225 Applicant: Nicole Hernandez, W &H Pacrfic 3350 Monte Villa Pkwy, Bothell, WA 98021 Contact: Rob King, Harvest Partners, 20503 88" Ave W, Edmonds, WA 98026 File Number: LUA06-071, SA-A Project Manager: Jill K. Ding, Senior Planner Project Description: The applicant is requesting Administrative Site Plan Approval for the construction of an approximately 572,700 square foot commercial/retail development with a 12 screen cinema. The proposed development would be constructed on a 38.22 acre site located within the Urban Center -North 1 (UC-N1) zoning designation. Proposed site improvements would consist of landscaping, utilities and stormwater and special design standards for the zoning. The structures are proposed to range in height from approximately 30 to 45 feet. The parking provided would be a mix of structured and surface parking. A four level parking garage is proposed that would provide 675 parking stalls and 1,955 surface parking stalls are also proposed. The proposed project received Master Site Plan approval May 19, 2006. Project Location: North of N 8th Street, east of Logan Ave N and west of Garden Ave N Exist. Bldg. Area SF: N/A Proposed New Bldg. Area: 572,700 sq. ft. Site Area: 38.22 acres Total Building Area SF: 572,700 sq. ft. Project Location Map EXHIBIT A SA-A06-071.doc • D. On July 17, 2006, the City Development Services division issued an administrative determination relating to modification of setbacks in the Urban Center-North I Zone ("Director's Administrative Zoning Interpretation"). The Landing Project is located in the Urban Center-North I Zone. E. On August 17, 2006, the City's Development Services Director issued a decision approving the Site Plan for The Landing Project (LUA-06-071, SA-A) ("Director's Site Plan Decision"). F. ASE and Nicholson filed appeals of the Director's Site Plan Decision and the Director's Administrative Zoning Interpretation. These appeals, currently pending before the Renton Hearing Examiner, together with the Master Plan Appeals, are collectively referred to herein as the "Appeals" . G. Target has applied for a building permit to construct a retail store in Quadrant C of The Landing Project, which is depicted as Building I 00 on the site plan attached hereto as Exhibit C and incorporated herein by this reference ("Quadrant C Site Plan"). Target's plans include construction ofa principal use store, roads, driveways, access ways, utilities, street improvements, drive aisles, parking, and loading as may be required in Target's reasonable discretion to construct, occupy and operate its retail store, all as shown on Exhibit D (collectively referred to herein as "Target's Landing Project"). Harvest has applied for building permits to construct additional retail structures in Quadrant C, including Buildings 103 and 104 as depicted on the Quadrant C Site Plan and Target considers Buildings 103 and 104 to be critical to the success of Target's Landing Project. Target's Landing Project and Buildings 103 and 104 are collectively referred to herein as the "Vested Developments" and are shown on Exhibit D, which is attached hereto and incorporated herein by this reference. H. Target desires to proceed with the development of Target's Landing Project, and desires assurances that development of Target's Landing Project and Buildings 103 and 104 may proceed in accordance with the Director's Site Plan Decision, the Director's Planned Action Decision, the Director's Master Plan Decision, and the Director's Administrative Zoning Interpretation (collectively, the "Director's Decisions") notwithstanding the outcome of the Appeals or any future actions or challenges that may be brought by Westfield and Appellants. I. Target believes that the Target's Landing Project and Buildings 103 and 104 are generally in conformance with applicable laws and regulations and Westfield and Appellants are supportive of Target moving forward with the Target's Landing Project without waiving any of their rights with respect to the remaining portions of The Landing Project. SETTLEMENT AGREEMENT PAGE 2 of 11 Y:\WP\ASE\SETTLEMENT\VESTING SETTLEMENT AGREEMENTS\120406\ASE TARGET SETTLEMENT 120606 FINAL.DOC t:Q I"" ... t:Q ... ~ laal i I Buck@ I Gordon LLP I Attorneys at Law l PAY TO THE ORDER ~ oF, City of Renton I 2025 First Avenue, Suite 500 Seattle, Washington 98121-3140 {206) 362-9540 BANK OF AMERICA WA 19-2-1250 DATE 08/31/06 CHECK 31740 ••• SEVENTY-FIVE & 00/100 DOLLARS -.-->.z ;;c<.F 3174~ AMOUNT *****$75.00 ' I i ] " ~ 0 6J l i ~ < ~ ~ • ---~~----~ 11•0 :I l, 71,011' ,: I, 2 50000 21,1: l, i; :100 1,0 Buck@ Gordon LLP Attorneys at_ Law --·----·---··---- 2025 First Avenue, Suite 500 Seattle, Washington 98121-3140 (206) 382-9540 ------ BANK OF AMERICA WA 19-2-1250 DATE CHECK 31739 08/31/06 PAY ***.SEVENTY-FIVE & 00/100 DOLLARS TO THE ORDER ii OF: City of Renton . i 11•0 :11, 7 :I "lit' ,: l, 2 50000 21,,: l, i; :100 -------------- ----- 31739 AMOUNT *****$75.00 ... ti • 6J J ~ j j -----------I ,,•000000 7 500,•' u ... ... CCI ... ~ f;,;J 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 HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) and Brad Nicholson re: ) ) ) ) ) LUA-06-071, SA-A The Director's Administrative Site Plan Approval) SECOND DECLARATION OF BRAD NICHOLSON and The Director's Administrative Interpretation/Policy Decision ) ) ) ) ) ) I, Brad Nicholson, do hereby declare as follows: 1. I was born in Renton 4 7 years ago and have lived in Renton my whole life. 2. Peter Buck has formally been my personal attorney since August of 2006. I have considered Mr. Buck as my attorney since before the decision to incorporate the Alliance for South End (ASE), a decision in which I participated. When the Hearing Examiner dismissed earlier appeals filed by ASE, we decided that it would be prudent to file future appeals in my name as well as in ASE's name. On August 31, 2006, Peter Buck filed appeals of two decisions on our behalf: the Interpretation/Policy Decision issued on July 17, 2006 (the "Setback Decision") and the Administrative Site Plan Approval for The Landing issued on August 17, 2006 (the "Site Plan Decision"). 3. As discussed in my first declaration, I have a much greater interest in the integrity of the City's processing for The Landing and the outcome of the City's approvals ECOND DECLARATION OF BRAD NICHOLSON -I :\ WP\ASEISITE PLAN APPEAL'•ASE RESPONSES\NICHOLSON DECLARATION 12607.DOC ORIG\NAL Buck~ Gordon LLP 2025 ;:tr.st Avenue, Suite 500 Se!ltt!e, WA 98121 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 1 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding The Landing than the general public or an average citizen of Renton. I live very close to The Landing. 1 have invested a great deal of time and energy participating in public hearings and proceedings regarding The Landing site and monitoring land use decisions regarding The Landing and other development proposals. 4. I am aggrieved by the Setback Decision for several reasons. I have been unable to comment, participate, and voice objections to the City Hearing Examiner and/or the City Council on what is, in effect, an amendment of the City's development regulations and the integrity of setbacks in the Urban Center -North l (UC-Nl) zone. I would like to have my community planned and developed consistent with the provisions of the Renton Comprehensive Plan and development regulations, including the UC-Nl regulations. I am aggrieved by the City's denial ofmy rights to such a community due to the fact that this decision attempts to administratively eliminate the protection of maximum setbacks designed to implement an urban village concept. By ignoring the procedural protections contained in the Renton Municipal Code and state law, the Setback Decision deprived me of the opportunity to object to the use of setbacks that are contrary to the letter and the spirit of the UC-Nl regulations and the Renton Comprehensive Plan. 5. I am injured by the Site Plan Decision in a number of ways. Procedurally, I am harmed by the City's improper processing of the Site Plan for The Landing, including failure to refer the Site Plan to the Environmental Review Committee for a determination of the necessity for a public hearing, failure to refer the Site Plan to the Hearing Examiner for a decision, failure to conduct a consistency review for the Site Plan, and failure to hold a public hearing before the Hearing Examiner regarding this or any other decision approving The Landing project. If the City had held a public hearing, I would have voiced my concerns about the City's failure to mitigate impacts such as traffic and stormwater. Substantively, I am injured by the Site Plan's noncompliance with the City's Site Development Plan Review Ordinance. For example, that ordinance requires that the Site Plan must conform to the Comprehensive Plan's elements, goals, objectives and policies, ECOND DECLARATION OF BRAD NICHOLSON -2 :\WPIASE\SITE PLAN APPEALIASE RESPONSES\NICHOLSON DECLARATION 12607.D<X Buck~ Gordon LLP 2025 F,rst Avenue, Swite 500 Seattle, WA 98121 {206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 ,, nrnst conform to existing land use regulations (including the regulations regarding maximum setbacks in the UC-Nl zone), and must mitigate impacts (sucb. as traffic and stormwater) to surrounding properties and uses. The Site Plan for The Landing fails to Jlleet any of these criteria. I am injured by the City's failure to follow its own laws. If The Landing is built according to this noncompliant Site Plan, I will suffer bann from the inappropriate presence of a suburban-style development in an urban zone, decreased property values, damage to the appearance of the City, and failure to achieve the required employment base. 6. I have personal knowledge of the facts stated in this declaration. l declare under the penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 2 6 day of January, 2007. BRAD NICHOLSON SECOND DECLARA.TION OF BRAD NICHOLSON " 3 . \WP\ASF.\SITc PLAN ;\PPEAL\ASF RF.SPO!':SESINICIIOLSON DECLARATIO:< H2607.D0C Buck 11, Gordon .... ~ s2c.t.t.:.i:, it,.". :.=is1·~:.. Ln•':) ~S.2-95r.l[, I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of Alliance for South End (ASE) re: The Director's Administrative Decision Designating The Landing Master Plan Application a Planned Action The Director's Master Site Plan Approval ) ) ) ) ) ) ) ) ) _______________ ) Alliance for South End (ASE) and Brad Nicholson re: ) ) ) ) The Director's Administrative Site Plan Approval) and Interpretation/Policy Decision ) --------------~) NO. LUA-06-071, SA-A CERTIFICATE OF SERVICE I hereby certify that, on January 26, 2007, I served the foregoing APPELLANTS RESPONSE TO MOTIONS TO DISMISS APPEALS OF INTERPRETATION AND SITE PLAN DECISIONS, SECOND DECLARATION OF PETER BUCK, SECOND DECLARATION OF BRAD NICHOLSON, LETTER DATED JANUARY 26, 2007 ADDRESSED TO BONNIE WALTON AT THE CITY OF RENTON, ALONG WITH TWO (2) CHECKS FOR $75.00 (SEVENTY-FIVE AND NO/lOO'S) EACH MADE OUT TO THE CITY OF RENTON and this CERTIFICATE OF SERVICE by delivering, where indicated, via email, hand delivery and U.S. Mail, copies of each thereof to: CERTIFICATE OF SERVICE -I Y:\WP'•ASE\SITE PLAN APPEALICERTIFICATE OF SERVICE.2007.00C Buck 0 Gordon LLP 2025 First Avenu~, Suite SOO Seattle, WA 98121 (206) 382·9S40 ORIG\~;,\L 1 Mr. Fred Kaufi:nan Hearing Examiner 2 City of Renton 1055 South Grady Way, 7th Floor 3 Renton, WA 98055 4 5 6 7 8 9 10 11 12 13 14 15 D Via Facsimile D Via Email s Via Hand Delivery D Via U.S. Mail Ms. Ryan Durkan Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D Via Facsimile 3' Via Email ~ Via Hand Delivery Via U.S. Mail Ms. Zanetta Fontes Renton City Attorney Warren, Barber, & Fontes I 00 S. Second Street Renton, WA 98057 Via Facsimile Via Email Via Hand Delivery Via U.S. Mail Mr. Jerome Hillis Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D Via Facsimile El Via Email D Via Hand Delivery IS:r Via U.S. Mail Mr. Lawrence J. Warren Renton City Attorney Warren, Barber, & Fontes I 00 S. Second Street Renton, WA 98057 D Via Facsimile ISl Via Email D Via Hand Delivery @ Via U.S. Mail 16 17 18 19 20 21 22 23 24 25 26 Subscribed to under penalty of perjury under the laws of the State of Washington this 26TH day of January, 2007 in Seattle, Washington. CERTIFICATE OF SERVICE -2 Y:\WP\ASE\SITE PLAN APPEAL\CERTIFICATE OF SERVICE.2007.00C Buck t~ Gordon LLP 2025 First Aver1ue, Suite SOO Sea:tie., '>NA 98" ?1 (206) 382-9540