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HomeMy WebLinkAboutA. Avana Applicants Responselason Seth t From: Dan Russell <dre98055@comcast.net> C T``{J 'ENTG1 Sent: Thursday,lune 23, 2016 912 AM To: lasan Seth Subject: Avana C 6V C 6;1'Y LERK'S O FtCE My cancerns cover an already troubling prablem. The traffic congestion on 108th at the light on New Benson. Back ups are due to the traffic on New Benson that fails to let cars on 108th turn left. i personaily have sat through 4 light changes fram 172nd trying to turn left. The right turn onto 108th from 172nd is many times difficuit as traffic biocks the intersection onta 108th Making a left hand turn during high traffic is extremely dangerous already as there is no uisibility because of the mass af cars lined up. Your proposa!to change 108th daes not not address the intersection at the light. The right hand lane coming from Avana onto 108th will merely cause additional risk and congestion far right turn participants unless there is a right hand turn specific lane. Can't you create a right hand lane out of Avana onto New Benson along with the change af lanes turning left. Thus one dedicated lane turning left,one lane turning left or right and ane lane turning right only. I trust you wi{I monitar this situation and measure the already existing problem during peak traffic times prior to making your decision. I am sure failure ta da this will result in harm to people who will be using this street regularly. I for one do not care to be responsible for this sa I am asking you ta da your due diligence. I for one will do all that I can to prepare for the eventuality af this event. Thank you far your consideration. Dan Russell 702 340 6939 10717 se 172nd Renton, Wa 98055 1 CITY OF RENTON JUN 16 2016 ' RECEIVED 1 CITY CLERK'S OFFIGE 2 w Q. v"``'``,...`, 3 4 5 6 7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON 8 RE: AVANA RIDGE PUD 9 APPLICANT'S RESPONSE TO DAN Preliminary Planned Urban PALMER'S APPEAL OF THE 10 Development HEARING EXAMINER'S FINAL DECISION ON THE AVANA 11 LUA-15-000894 RIDGE PUD 12 13 14 Pursuant to Renton Municipal Code (RMC) 4-8-110(F)(3), the Applicant for the 15 Avana Ridge PUD, Avana Ridge LLC (the "Applicant"), by and through its legal counsel, 16 Brent Carson of Van Ness Feldman, LLP, files this response to the appeal filed by Dan 17 Palmer ("Mr. Palmer") on June 7, 2016 (the "Appeal") challenging the Hearing 18 Examiner's ("Hearing Examiner" or `Bxaminer") Final Decision' approving the Avana 19 Ridge Preliminary Planned Urban Development (the "Project"). For the reasons stated 20 below, the Appeal should be summarily dismissed, or if it is considered on its merits, the 21 Appeal should be denied and the Final Decision should be affirmed. 22 23 24 25 ' Hearing Examiner's Final Decision, LUA 15-000894, PP, PPUD ("Final Decision"). APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD- 1 Feldman «P 719 Second Avenue Suite 1150 59230- ORIGINAL 206)I623- g372104 1 I. The Appeal should be Dismissed Summarilv because it Fails to Meet the 2 Standards for Filing An Appeal. 3 The Appeal filed by Mr. Palmer fails to meet the standards established by the City 4 Council for filing a land use appeal under RMC Section 4-8-110. RMC 4-8-110(C)(3) 5 states: 6 3. Required Form for and Content of Appeals. Any appeal shall be filed in writing. The written notice of appeal shall fullv. clearlv and thorou hlv specifv the substantial error(s) in fact or law which exist in the record of g the proceedings from which the appellant seeks relief(emphasis added). 9 This code provision is not a suggestion. It is a procedural requirement of the City Code. 10 As noted in the introductory paragraph of this code section: 11 A. SCOPE AND PURPOSE: 12 This Section provides the basic procedures for processin,all tvpes of land 13 use and development-related appeals. Specific reAuirements are based upon the type/level of appeal and the appeal authority. Procedures for the 14 following types of appeals are included in this Section: 15 RMC 4-8-110(A). 16 Mr. Palmer has failed to comply with this fundamental procedural requirement. 1 His Appeal alleges not one specific error. Mr. Palmer's Appeal cites to no facts in the 1 g record to support a claim that the Final Decision contains substantial errors. He presents 19 no claims of legal errors by the Hearing Examiner. His Appeal simply agees that the 20 Project has a"good design," then expresses various "concerns" about the Project. Not one 21 of these "concerns" points to any factual or legal errors in the Final Decision, let alone 22 "fully, clearly and thoroughly specify the substantial error(s) in fact or law" as required by 23 City Code. 24 There was ample opportunity in both the public comment period for SEPA review 25 and in the public hearing before the Hearing Examiner for members of the public, APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-2 Feldman «P 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 including Mr. Palmer, to raise concerns about the Project. The record for stating concerns 2 has closed. An appeal to the City Council is for the purpose of a party of recard to allege, 3 then prove, that the Hearing Examiner made substantial errors in fact or law that would 4 require the City Council to reverse or modify the Final Decision. 5 Here, the Appeal has failed to do anything more than restate concerns. Without 6 meeting the fundamental requirement for a land use appeal to allege specific errors, there 7 is no basis for the City Council to assess whether to grant or deny the Appeal on its merits. 8 Based on Mr. Palmer's failure to allege any substantive errors in fact or law in the 9 Final Decision, the City Council should summarily dismiss the Appeal. 10 II. Even if the Citv Council Chooses to Consider the Merits of the Appeal, the Aopeal should nonetheless be Denied and the Council should Affirm the Hearin 11 Examiner's Final Decision. 12 If the City Council does not summarily dismiss the Appeal for failing to identify 13 any substantive errors, we ask the City Council to deny the Appeal on its merits. The 14 record before the Hearing Examiner demonstrates that the Final Decision is fully 15 supported by substantial evidence and is consistent with applicable law. None of the 16 "concerns" expressed by Mr. Palmer rise to a reversible error. 17 Each of the paragraphs below address the individual "concerns" expressed by 18 Mr. Palmer in his Appeal and demonstrates why Mr. Palmer has failed to meet his burden 19 to prove substantial errors in fact or law.Z 20 Concern 1: Increase in traffic to neighborhoods, specifically north of the site 21 The Appeal states a concern that the Project will increase traffic to neighborhoods 22 to the north. However, the Appeal fails to allege any error in this regard. 23 24 25 z The burden of proof rests with the appellant. RMC 4-8-11(F)(5). APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-3 Feldman LLP 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 The record establishes that the Project will add 5 PM peak-hour trips and 4 AM 2 peak-hour trips through the single-family neighborhood to the north. Traffic Impact 3 Analysis (TIA) Prepared by TraffEx, February 2, 2016 (Exhibit 15). The Hearing 4 Examiner found that this level of traffic was minimal, that the TIA adequately addressed 5 impacts from this traffic and that the mitigation imposed through the SEPA condition to 6 address this increased traffic was sufficient. The Final Decision states: 7 A major concern of the neighbors was traffic impacts to 106 Ave SE, 104 Ave SE and 105 Ave SE. In uncontested testimony, several neighbors testified that 8 these roads are isolated, currently accommodate a minimal amount of traffic Although a review of the surrounding road network shows that persons 9 may very well choose to drive through 105/104/106 to avoid the Benson/SR SI S intersection as well as other traffic problems in the area, the applicant's 10 traffic analysis reveals that the project will only add five PMpeak hour trips and four AM peak hour trips into the 105/104/106 roads. The applicant's 11 traffic analysis was verified by peer review. Given the expert traffic analysis prepared by the applicant and the independent expert verification conducted 12 under the peer review, the applicant's traffic analysis is taken as a verity given the absence of any expert testimony to the contrary. With only a 13 maximum offive additional trips per hour generated by the proposal, there is no basis to require more than the speed radar signs required by the SEPA 14 mitigation measures. 15 Final Decision, pp. 9-10. 16 The Appeal cites to no error in these findings by the Hearing Examiner. 17 Moreover, as noted by the Hearing Examiner, no expert testimony was presented at the 18 hearing to contradict the expert traffic report prepared for the Applicant by TraffEx. The 19 Final Decision addresses this concern and should be affirmed. 20 Concern 2: Existing congesdon on Benson Road, including a blind curve 21 condition, and Adequacy of 106th and 104th for through traffic 22 The City of Renton ("City") received public comments and the Hearing Examiner 23 heard testimony regarding existing southbound queuing at the intersection of Benson 24 Road South and SR 515. The Hearing Examiner found that the TIA adequately analyzed 25 the potential impacts at the Benson Road S/515 intersection. Final Decision, p. 10. This APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-4 Feldman LLP 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 was also addressed by the Examiner in Condition 27, which requires the rechannelization 2 of the left- and right-turn southbound lanes from Benson Road South to SR 515, to one 3 left-turn lane and one combined left-turn/right-turn lane, as well as signal improvements 4 to accommodate the rechannelization. The Examiner found that with these improvements 5 in place, the queue lengths would be reduced to below pre-development conditions. 6 As noted above, regarding Concern 1, the Hearing Examiner found that traffic 7 from the Project filtering north along 105/104/106th Avenues was adequately addressed in 8 the TIA and would be minimal. The TIA was independently peer reviewed by a traffic 9 consultant selected by the City, who concurred with the TIA's analyses. Memorandum 10 from Michael Read, PE, Principal, TENW, March 21, 2016. Exhibit 17. The Appeal cites 11 to no testimony rebutting these findings or establishing errors with the Final Decision on 12 this point. 13 The impacts from the Project, with the mitigation measures in place, will either be 14 better than pre-Project conditions (reduced queues) or de minimis (less than ten (10) total 15 trips in the peak travel hours)). This Appeal issue should be rejected and the Final 16 Decision on this issue should be affirmed. 17 Concern 3: Entry onto Benson Roadfrom the Project entrance 18 Mr. Palmer is concerned that the Benson Road entry to the Project is dangerous 19 but cites to no evidence in the record to support this concern or to establish any substantial 20 error by the Hearing Examiner on this point. 21 The Project site entrance as analyzed in the TIA aligns with lOBth Avenue SE and 22 is supported by adequate sight distance. Exhibit 15, p. 4. As noted above, the TIA was 23 peer-reviewed and no expert testimony was introduced in the record to refute this 24 conclusion. The Hearing Examiner properly concluded that sight distance requirements 25 are met at both site entrance driveways. Final Decision, p. 9. No finding of a threat to APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-5 Feldman LLP 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 public safety or traffic safety was found in the SEPA determination or in the Hearing 2 Examiner's record. 3 This Appeal issue should be rejected and the Final Decision on this point should 4 be affirmed. 5 Concern 4: Radar signage and speed bumps are not adequate mitigation 6 Mr. Palmer is concerned that the SEPA condition requiring radar signage and 7 speed bumps to slow traffic will not affect congestion in the neighborhood north of the 8 Project site. However, as noted above, there is no basis in the record to establish that the 9 Project will create congestion on these streets. 10 The record demonstrates that there is very little existing traffic on these residential 11 streets and that the Project will add only 15 additional PM peak-hour trips and 14 12 additional AM peak-hour trips north on 108th Ave SE and only 5 PM peak-hour and 4 AM 13 peak-hour trips along SE 172"d west of the site. Exhibit 15, Figs. 3 and 4. Mr. Palmer has 14 pointed to no testimony to contradict the Hearing Examiner's findings with regard to 15 congestion and the adequacy of the SEPA condition to help slow traffic along this 16 residential street. 17 This Appeal issue should be rejected and the Final Decision on this point should 18 be affirmed. 19 Concern 5: The need for an on-site traffic study 20 Mr. Palmer states as a concern that an onsite traffic study is required. However, as 21 noted repeatedly in the Final Decision, the Applicant hired a traffic expert to prepare a 22 detailed Traffic Impact Assessment (TIA) which was submitted into the record. 23 Exhibit 15. This TIA was peer reviewed by TENW, a third-party traffic engineer hired by 24 the City, who agreed with the conclusions reached by TraffEx. Exhibit 17. Mr. Palmer 25 has failed to show any error on this point. APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-6 Feldman «P 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 Concern 6: Air pollution 2 Mr. Palmer alleges that air impacts could occur as a result of the Project but fails 3 to show any substantial error in the Final Decision on this issue. 4 Potential environmental impacts were fully disclosed to the City during the SEPA 5 review process. The Environmental Review Committee (ERC) considered those impacts 6 and issued a Determination of Non-Significance Mitigated (DNSM) on April 11, 2016. 7 Exhibit 20. No significant adverse impacts to air quality or any other element of the 8 environment were identified. No party filed an appeal of the SEPA determination. By 9 failing to appeal the DNSM, the conclusions reached by the ERC are final and cannot be 10 challenged in this Appeal. 11 Moreover, concerns regarding air pollution are procedurally beyond the scope of 12 the PUD. The criteria for approval of a Planned Urban Development do not include 13 consideration of potential air pollution from traffic. 14 Nonetheless, the Hearing Examiner did consider concerns expressed about air 15 pollution from traffic and concluded that the Project would not cause air pollution. The 16 Final Decision notes that "one neighbor testified that he was concerned that pollution 17 caused by increased project traffic would exacerbate the respiratory problems of some 18 neighbors living close to the project site." Final Decision, p. 12. The Final Decision also 19 confirms that this neighbor testified that there was currently no vehicle pollution in this 20 neighborhood. Final Decision, p 4. No expert testimony was ever introduced regarding 21 air pollution impacts from the Project. Based on this record, the Hearing Examiner 22 correctly found that "[w]ithout any scientific evidence to substantiate this assertion 23 [concerning air pollution from traffic], there is insufficient evidence to reasonably 24 conclude that the relatively modest traffic generated by the proposal would exacerbate 25 respiratory problems." Final Decision, p. 12. APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-7 Feldman «P 69230-7 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 This concern should be rejected and the Final Decision on this point should be 2 affirmed. 3 Concern 7 Compatibility of the architecture 4 Mr. Palmer alleges that the north side of the Project is architecturally incompatible 5 with the neighborhood. However, Mr. Palmer has pointed to no substantial errors in the 6 Hearing Examiner's findings on this issue. 7 The Hearing Examiner carefully considered the documents presented by the 8 Applicant's expert architect and by the City's planning staff that reviewed the Project's 9 design (Exhibit 19) and found that it complied with all applicable design standards. Final 10 Decision, p. 12. Specifically, the Hearing Examiner found that the "(t)he project is 11 compatible with surrounding development." Id. The Examiner also describes the 12 measures that the Applicant took to ensure that the Project complies with the Design 13 District B standards that also apply to the Project site. Id. The Examiner found that in the 14 public comment and testimony, "no one has suggested that staf s finding of compliance 15 with these standards was in error." 16 Once again, Mr. Palmer has cited to no testimony rebutting the Examiner's 17 findings or alleging errors in compliance with any specific design review criteria. This 18 concern should be rejected and the Final Decision on this point should be affirmed. 19 III. Conclusion. 20 The City Code requires that every land use appeal must state, with specificity, 21 errors in fact or law in the decision being challenged. The Appeal states concerns but fails 22 to allege any errors. Based on the Appellant's failure to meet this procedural requirement, 23 the Appeal should be summarily dismissed. 24 Even if the Appeal is considered on its merits, it should be denied because 25 Mr. Palmer has failed to meet his burden to prove substantial errors in fact or law in the APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-8 Feldman «P 69230-7 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 Hearing Examiner's Final Decision. Council's consideration of this Appeal must be based 2 solely on the record, the Hearing Examiner's Report, the notice of appeal and arguments 3 based on the record. There was ample opportunity provided in both the public comment 4 period for SEPA review and during the public hearing before the Hearing Examiner for 5 members of the public to build a record in support of their positions. Based upon the 6 record, the Hearing Examiner reached appropriate findings and conclusions in approving 7 this Project. Mr. Palmer has failed to show, for any of his concerns, that the Hearing 8 Examiner erred. For this reason, the Appeal should be denied. 9 10 Dated this 16th day of June, 2016. 11 12 VAN NESS FELDMAN 13 14 15 Brent Carson, WSBA#16240 16 719 Second Avenue, Suite 1150 Seattle, WA 98104 1 Tel: (206) 623-9372 Fax: (206) 623-4986 1 g E-mail: brc(a vnf.com Attorney for Avana Ridge LLC 19 20 21 22 23 24 25 APPLICANT'S RESPONSE TO DAN PALMER'S APPEAL OF Van Ness THE HEARING EXAMINER'S FINAL DECISION ON THE AVANA RIDGE PUD-9 Feldman LLP 719 Second Avenue Suite 1150 69230-7 Seattle, WA 98104 206) 623-9372 1 CERTIFICATE OF SERVICE 2 I, Jennifer Hicok, declare as follows: 3 That I am over the age of 18 years, not a party to this action, and competent to be a 4 witness herein; 5 That I, as a legal assistant in the office of Van Ness Feldman LLP, caused true and 6 correct copies of the following documents to be delivered as set forth below: 7 1. Applicant's Response to Dan Palmer's Appeal of the Hearing Examiner's Final Decision on the Avana Ridge PUD; and this; 8 2. Certificate of Service; 9 and that on June 16, 2016, I addressed said documents and deposited them for delivery as 10 follows: 11 ORIGINAL: By U.S. Mail City of Renton By Legal Messenger 12 City Clerk's Office By Email: 13 1055 South Grady Way, Seventh Floor Renton, WA 98057 14 COPY: By U.S. Mail 15 Lawrence J. Warren By Legal Messenger Renton City Attorney By Email: 16 City of Renton LWarren(a Rentonwa.gov 1 1055 South Grady Way Renton, WA 98057 18 COPY: By U.S. Mail 19 Rocale Timmons By Legal Messenger Senior Planner By Email: 20 City of Renton Department of Community& RTimmons(a),Rentonwa.ov 21 Economic Development 1055 South Grady Way 22 Renton, WA 98057 23 COPY: By U.S. Mail Dan Palmer By Legal Messenger 24 16638 106th Street By Email: 25 Renton, WA 98059 CERTIFICATE OF SERVICE- 10 Van Ness Feldman «P 69230-7 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 I certify under penalty of perjury under the laws of the State of Washington that 2 the foregoing is true and correct. 3 EXECUTED at Seattle, Washington on this 16th day of June, 2016. 4 5 i nn r ,Y /(V Cc Jennifer'Hicok,G eclarant 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE- 11 Van Ness Feldman LLP 719 Second Avenue Suite 1150 69230J Seattle, WA 98104 206) 623-9372 Cl7Y OF RENTOfV p,y. r 1'' f 1 JUN 2 9 2016 G"2 RECEIVED ,4 CITY CLERK'S OFFICE 3 4 5 6 7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON 8 RE: Appeal by Dan Palmer of 9 APPLICANT'S NOTICE OF AVANA RIDGE PUD APPEARANCE 10 Preliminary Planned Urban 11 Development 12 LUA-15-000894 13 14 TO: City Clerk, City of Renton 15 AND TO: Lawrence J. Warren, Renton City Attorney 16 AND TO: Rocale Timmons, City of Renton Senior Planner 1 AND TO: Dan Palmer 18 19 YOU WILL PLEASE TAKE NOTICE that Brent Carson, Van Ness Feldman 20 LLP, does hereby appear in the above-captioned matter on behalf of the Applicant, Avana 21 Ridge PUD, Avana Ridge LLC. The undersigned attorney requests that all papers and 22 pleadings herein be served at the address stated below: 23 Brent Carson Van Ness Feldman LLP 24 719 Second Avenue, Suite 1150 Seattle, WA 98104 25 APPLICANT'S NOTICE OF APPEARANCE- 1 Van Ness Feldman 69a 3-t ORIGINAL 19 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 Dated this 29th day of June, 2016. 2 3 VAN NESS FELDMAN LLP 4 5 B e C son, WSBA#16240 6 7 9 Second Avenue, Suite 1150 Seattle, WA 98104 Tel: (206) 623-9372 Fax: (206) 623-4986 g E-mail: brc(a,vnf.com 9 Attorney for Avana Ridge LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPLICANT'S NOTICE OF APPEt RANCE-2 Van Ness Feldman LLP 69473-1 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 CERTIFICATE OF SERVICE 2 I, Jennifer Hicok, declare as follows: 3 That I am over the age of 18 years, not a party to this action, and competent to be a 4 witness herein; 5 That I, as a legal assistant in the office of Van Ness Feldman LLP, caused true and 6 correct copies of the following documents to be delivered as set forth below: 7 1. Applicant's Notice of Appearance; and this 2. Certificate of Service; 8 and that on June 29, 2016, I addressed said documents and deposited them for delivery as 9 follows: 10 ORIGINAL: By U.S. Mail 11 Jason A. Seth, CMC By Legal Messenger City Clerk By Email: 12 City of Renton 13 City Clerk's Office 1055 South Grady Way, Seventh Floor 14 Renton, WA 98057 15 COPY: By U.S. Mail Lawrence J. Warren By Legal Messenger 16 Renton City Attorney By Email: City of Renton LWarren(a Rentonwa.ov 17 1055 South Grady Way Renton, WA 98057 18 COPY: By U.S. Mail 19 Rocale Timmons By Legal Messenger 20 Senior Planner By Email: City of Renton Department of Community& RTimmons(cr,Rentonwa.ov 21 Economic Development 1055 South Grady Way 22 Renton, WA 98057 23 COPY: By U.S. Mail Dan Palmer By Legal Messenger 24 16638 106th Street By Email: Renton, WA 98059 25 CERTIFICATE OF SERVICE-3 Van Ness Feldman uP 59a 3-t 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372 1 I certify under penalty of perjury under the laws of the State of Washington that 2 the foregoing is true and correct. 3 EXECUTED at Seattle, Washington on this 29th day of June, 2016. 4 L/Q5 nn f Jenni r Hicok, l eclarant 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE-4 Van Ness Feldman uP 69473-1 719 Second Avenue Suite 1150 Seattle, WA 98104 206) 623-9372