HomeMy WebLinkAboutApplicants ResponseCITY OF RENTON
JUN 16 2016 '
RECEIVED
1 CITY CLERK'S OFFIGE
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7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON
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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
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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.
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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
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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:
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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.
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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.
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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.
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10 Dated this 16th day of June, 2016.
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VAN NESS FELDMAN
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15 Brent Carson, WSBA#16240
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719 Second Avenue, Suite 1150
Seattle, WA 98104
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Tel: (206) 623-9372
Fax: (206) 623-4986
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E-mail: brc(a vnf.com
Attorney for Avana Ridge LLC
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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
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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
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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.
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5 i nn r ,Y /(V Cc
Jennifer'Hicok,G eclarant
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CERTIFICATE OF SERVICE- 11 Van Ness
Feldman LLP
719 Second Avenue Suite 1150
69230J Seattle, WA 98104
206) 623-9372