HomeMy WebLinkAboutD_HEX Final Decision Reconsideration_170920_v1Denis Law C' f
--=Mayo:..r ----~,.J. ~;lltiJ r l
November 17, 2014
Brent Carson
Van Ness Feldman
719 Second Avenue, Suite 1150
Seattle, WA 98104
City Clerk -Jason A. Seth, CMC
Re: Final Decision upon Reconsideration for Vuecrest Estates Preliminary Plat
LUA-13-000642, ECF, PP, MOD
Dear Mr. Carson:
Attached is your copy of the Hearing Examiner's Final Decision upon Reconsideration, dated
November 15, 2014, in the above-referenced matter.
If I can provide further information, please feel free to contact me.
Sincer~
Jason A. Seth
City Clerk
Enc.: Hearing Examiner's Decision
cc: Hearing Examiner
Elizabeth Higgins, Planner
Jennifer Henning, Planning Director
Vanessa Dolbee, Current Planning Manager
Steve lee, Development Engineering Manager
Craig Burnell, Building Official
Sabrina Mirante, Secretary, Planning Division
Ed Prince, City Councilmember
Julia Medzegian, City Council Liaison
Parties of Record {47)
1055 South Grady Way • Renton, Washington 98057 • (425) 43Q-651 0 I Fax (425) 43Q-6516 • rentonwa.gov
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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Vuecrest Estates Preliminary Plat
Preliminary Plat
LUA13-000642
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) FINAL DECISION UPON
) RECONSIDERATION
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) ______________________________ )
SUMMARY
The applicant of the above-captioned matter has requested reconsideration by letter dated October
16, 2014. The reconsideration request is limited to eliminating or modifying Condition No 13 and
also to admitting an exhibit that was erroneously excluded from the administrative record. Condition
18 No. 13 will not be eliminated, but will be modified largely as requested by the applicant. The
19 resume of Carl Anderson is admitted as Exhibit No. 38.
20 EXHIBITS
21 In addition to the addition of Exhibit No. 38, the following exhibits are admitted as part of the
22 reconsideration process:
23 Exhibit 39:
Exhibit 40:
24 Exhibit 41:
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Exhibit 42:
Order Authorizing Reconsideration, dated October 21, 104.
City's Answer on Reconsideration Request, dated October 22, 2014
Sundance response to Reconsideration, dated October 31, 2014.
Reply to Order Authorizing Reconsideration, dated November 5, 2014.
CONCLUSIONS OF LAW AND FINDINGS OF FACT
PRELIMINARY PLAT RECONSIDERATION-I
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The issues raised in the applicant's reconsideration request are individually addressed below:
1. Applicable Variance/Waiver Criteria. The street waiver standards ofRMC 4-9-250(C) apply
to the applicant's request to waive the secondary access requirement of RMC 4-6-060(H)(2). The
applicant argues that the variance criteria of RMC 4-9-250(8)(5) apply because RMC 4-7-240(A)
provides that RMC 4-9-250(8) applies to the requirements "of this Chapter". The applicant argues
that since RMC 4-7-150(D) requires compliance with RMC 4-7-060, that this transforms RMC 4-7-
060 into a part "of this Chapter", specifically Chapter 4-7 RMC. Reasonable minds could certainly
disagree as to whether the RMC 4-7-150(D) mandate for compliance with RMC 4-7-060 makes that
provision a part "ofthis Chapter". Indeed, the fact that RMC 4-7-0-060 is not expressly incorporated
by reference into Chapter 4-7 RMC would lead most people to conclude that RMC 4-7-060 is not a
part of Chapter 4-7 RMC and is simply a requirement in another chapter of the RMC that applies to
subdivisions. For the reasons identified in the Order Authorizing Reconsideration, Ex. 39, it is
concluded as a matter of law that the street waiver criteria of RMC 4-9-250(C) apply to the
applicant's request to waive the secondary access requirement ofRMC 4-6-060(H)(2).
2. Failure to Provide Secondary Access Significantly Unsafe. As a finding of fact, It IS
determined that the failure to provide secondary access to the proposed subdivision creates a
significantly unsafe condition. The applicant focuses upon the inconsistencies in the City staff
position to argue that the secondary access is unnecessary. As noted in the Final Decision on this
matter, the inconsistencies in the staff position are troubling. However, there is nothing in the record
to suggest or explain why City fire personnel had any reason to overstate the dangers of waiving
secondary fire access. In several prior examiner decisions, City staff have often taken highly
unpopular positions counter to extensive public opposition in order provide objective
recommendations on the application of development standards. There is nothing to suggest in this
administrative record that City staff have succumbed to public pressure to require a secondary
access.
Despite the odd sounding comments made by Ms. Higgins, it appears likely that staffs vacillation on
the secondary road issue arises from the difficulties of balancing past permitting decisions, public
safety, recent safety problems (e.g. the wildfires identified by the fire chief) and the applicant's
constitutional nexus/proportionality rights. All these factors pose very complex and challenging legal
and policy issues. Given these multiple factors, it is not surprising that staff remained open minded
about the secondary access issue until late in the permitting process.
In focusing all of its reconsideration attention on the testimony of City staff, the applicant glosses
over the fact that its own fire expert was unable to opine that there would be no safety problems with
waiver of the secondary access requirement. As discussed in the Final Decision of this case, Mr.
Anderson was unable to provide any assurance that a secondary fire access was unnecessary for safe
and adequate fire response, despite a direct request from the Examiner to provide that assurance. If
the City's fire chief takes the position that secondary access is necessary for safe fire response and
the applicant's own fire expert can't dispute that position, it is difficult to see how the applicant can
seriously question why a finding is ultimately made that secondary access is necessary for safe fire
PRELIMINARY PLAT RECONSIDERATION-2
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response.
3. Unsafe Fire Response is Materially Detrimental to Public; Unsafe Access Not Consistent
with Waiver, Modification or Variance Criteria. Unsafe fire access is unquestionably counter to the
public welfare. The applicant takes the remarkable position that unsafe fire access is not materially
detrimental to the public welfare, and therefore there is no consistency issue with the materially
detrimental criterion for variances, RMC 4-9-250(B)(5)(b). The applicant asserts that the examiner
erred by requiring the applicant to demonstrate that the proposed single access was safe under the
materially detrimental standard. See Ex. 39, p. 5. Under the applicant's reasoning, the public
welfare is not adversely affected if the residents ofVuecrest are left with a street system that prevents
fire apparatus from reaching them within the time necessary to safely respond to emergencies. The
applicants are essentially arguing that variances to fire access standards should be approved even
when such variances would endanger City residents. This is a patently absurd construction of the
"public welfare" term and the City's variance standards. If the single access does not provide for
safe fire access as determined by the hearing examiner, there is no question under any reasonable
interpretation that as a conclusion oflaw the applicant's proposal fails to qualify for a variance under
the material detrimental criterion ofRMC 4-9-250(B)(5)(b), fails to qualify for a street waiver under
the "no detrimental effect" standard ofRMC 4-9-250(C)(5)(e) and fails to qualify for a modification
under the "safety" criterion (the most obvious, other criteria are unmet as well) of RMC 4-9-
250(D)(2)(b ).
4. Record Does not Establish that Improved Secondary Access Necessary for Resident Egress.
The applicant correctly argues that it shouldn't be responsible for providing for a fully developed
secondary access route and that there should be some flexibility in where the route is located. This
position is reasonable. The City's fire chief did not focus his testimony on problems associated with
resident egress from the subdivision during emergencies. It is determined as a finding of fact that
there is nothing in the record to suggest that pavement and curb, gutter and sidewalk is necessary to
provide safe egress to residents during times of emergency. If the primary access route becomes
unusable during an emergency and residents must leave to protect themselves, it doesn't appear that
that they will hesitate to use a dirt road to do so. Given the nexus/proportionality issues associated
with requiring the applicant to provide for secondary access beyond its subdivision borders, any
secondary access requirement should be designed to be the minimum necessary to assure for public
safety.
DECISION
The Final Decision of the above-captioned matter dated 10/13/14 is supplemented with the
additional findings of fact and conclusions of law made above. Condition No. 13 is also revised to
provide as follows:
13. Prior to the recording of the final plat, a secondary fire access shall be constructed that
extends Smithers AveS to the east to directly connect to Main AveS (102nd Ave SE). The
extent of street improvements necessary to effectuate this connection shall be determined by
PRELIMINARY PLAT RECONSIDERATION-3
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the City of Renton Fire Department in accordance with applicable fire code standards and
shall be the minimum necessary to provide for safe and effective secondary access for fire
trucks and emergency vehicles.
DATED this 15th day ofNovember, 2014.
City of Renton Hearing Examiner
Appeal Right and Valuation Notices
RMC 4-8-080 provides that the final decision of the hearing examiner is subject to appeal to the
Renton City Council. RMC 4-8-110(E)(14) requires appeals ofthe hearing examiner's decision
to be filed within fourteen (14) calendar days from the date ofthe hearing examiner's decision.
Additional information regarding the appeal process may be obtained from the City Clerk's
Office, Renton City Hall-ih floor, ( 425) 430-6510.
Affected property owners may request a change m valuation for property tax purposes
notwithstanding any program of revaluation.
PRELIMINARY PLAT RECONSIDERATION-4