HomeMy WebLinkAboutFebus - Dec upon Recon Denis Law Mayor
City Clerk-Jason A.Seth,CMC
January 31, 2019
Jeremy Febus
KPFF
1601 5th Avenue, 1600
Seattle, WA 98101
Subject: Hearing Examiner's Decision upon Reconsideration
RE: Solera Master Plan, Preliminary Plat, Conditional Use and Street
Modification (LUA-18-000490j
Dear Mr. Febus:
Enclosed please find the Hearing Examiner's Decision upon Reconsideration dated
January 30, 2019.
If you have any questions, please contact me at (425) 430-6510 or jseth@rentonwa.gov.
Sincerely,AJa S. Seth, CMC
City Clerk
cc: Hearing Examiner
Matthew Herrera,Senior Planner
Jennifer Henning, Planning Director
Brianne Bannwarth, Development Engineering Manager
Craig Burnell, Building Official
Kyle Wunderlin, Planning Technician
Julia Medzegian,City Council Liaison
Parties of Record(8)
1055 South Grady Way,Renton,WA 98057 • (425)430-6510/Fax (425)430-6516 • rentonwa.gov
1
2
3
4
5
6
7
8 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
9
10 Solera Master Plan
DECISION UPON RECONSIDERATION
11 Master Plan, Preliminary Plat, Conditional
12 Use and Street Modification
13 LUA 18-000490, SA-M, PP, CU-H, MOD
14
15 Summary
The City and Applicant requests for reconsideration are granted and denied in part. The
16 rewording of Condition No. 18 as proposed by the Applicant is granted. Revised Condition No.
17 12 and new conditions 33 and 34 as proposed by the City are also granted. The City's requested
revisions to Condition No. 18 are denied.
18
Condition No. 18 as adopted in the Final Decision regulates the phasing of the proposal. In its
19 reconsideration request, the City has added some phasing requirements that the Applicant
contends are too onerous. One of the phasing options the City proposes in Condition No. 18
20 involves the posting of security that the Applicant contends could cost as much as $80 million.
21 The City's rational for the rigorous phasing standard is that without it, the Applicant could
abandon the mixed use portions of the project and simply build stand-alone townhome
22 development. In support of its concern, the City references planning policies, city investments
and development regulations that establish a City priority to transform the project area into a
23 vibrant pedestrian oriented mixed use area. Ultimately the City's arguments are not found
24 compelling because the development standards adopted by the City Council do not take the mixed
use concept as far as that advocated by City staff. Despite adopting the planning policies and
25 making the investments cited by staff that strongly support mixed use development in the project
area, the City Council still adopted zoning regulations that permit the proposed townhomes
26 outright. Townhomes are expressly authorized in the CV zone so long as they are not located on
parcels abutting NE Sunset Blvd east of Harrington Ave NE. The Applicant's proposed
Reconsideration Decision
1
1 townhomes will not be located on any parcel abutting NE Sunset Blvd. In point of fact, most of
2 the townhomes will be located a city block from NE Sunset Blvd. Given that the proposed
townhomes are completely consistent with the permitted uses expressly authorized by the City
3 Council, there is no impact associated with the phasing of the project that justifies the strict
phasing condition proposed by the City. Despite the lack of any legal basis to require phasing,
4 the Applicant has agreed to a revised Condition No. 18 that still provides some modest assurance
5 that phasing will be implemented as desired by the City. Since the Applicant has volunteered this
amendment without caveat, it is imposed as part of this reconsideration decision.
6
In its motion for reconsideration the City has also requested revisions to Condition No. 12 and
7 new Conditions 33 and 34. As these requested revisions and additions are consistent with City
8 regulations and are agreed upon by the Applicant, they are approved by this Decision Upon
Reconsideration without further comment.
9
All revised and added conditions of approval resulting from the City and Applicant
10 reconsideration requests are laid out in full in the Decision section of this Decision Upon
Reconsideration.
11
12 Background
13 A final decision for the above-captioned matter was issued on December 11, 2018. The City and
the Applicant both filed requests for reconsideration on December 21, 2018. In its motion for
14 reconsideration, the City requested revisions to Conditions No. 12 and 18. The City also
requested the addition of two new conditions,No.33 and 34,to authorize the Applicant to engage
15 in phased final plat approval. In its motion for reconsideration, the Applicant requested its own
16 version of Condition No. 18 and agreed with the City's requested revision to Condition No. 12
and new conditions 33 and 34. Response and reply briefs were filed by both parties with the reply
17 briefs submitted on January 18, 2019. This Decision Upon Reconsideration is based solely upon
the administrative record of the final decision and the briefing and associated exhibits for the
18 motions on reconsideration. There was no oral argument.
19 Legal Analysis of Condition No. 18
20 As previously noted, Condition No. 18 as revised by the Applicant is adopted by this Decision
21 Upon Reconsideration. The central issue for Condition No. 18 is whether the City has the
authority to require the Applicant to expend significant resources in completing or providing
22 assurance that the mixed use portions of the proposal will be completed prior to or at least close
to the time that the residential townhome portions of the project are completed. The City cites to
23 comprehensive plan policies, development regulations and City investments that strongly support
24 a mixed use, pedestrian friendly environment for the vicinity of the project site. The City asserts
that enabling stand-alone townhome development at the project site would be inconsistent with
25 all these planning and investment efforts and, therefore, its phasing restrictions are necessary to
mitigate against the harm caused by such an incompatible use. The Applicant disagrees with this
26 position, arguing that the City has not identified any cognizable harm created by the proposal that
necessitates the phasing restrictions proposed by the City.
Reconsideration Decision
2
1
2 It is agreed that conditions are only authorized to the extent necessary to address project impacts.
The Applicant's briefing on this issue is uncontested by the City and is found accurate by the
3 examiners, so that issue will not be further addressed in this Decision Upon Reconsideration. The
more critical issue is whether there is a project impact that needs to be mitigated by City proposed
4 Condition No. 18. The parties are not in agreement on this issue. Project impacts would include
5 proposed uses that are not authorized or encouraged by city regulations and policies, since such
uses are antithetical to the public benefits and prevention of public harm that underlies the basis
6 of zoning, recognized by the courts as early as Village of Euclid v. Ambler Realty Co., 272 U.S.
365 (1926). In regard to proposing something inconsistent with the uses planned for the vicinity,
7 there is one comprehensive plan policy and one regulation cited by the City that purportedly
8 prohibits stand-alone townhome development, cited as follows:
9 Comprehensive Plan Policy U17: Commercial Mixed Use — Place areas with
established commercial and office areas near principle arterials within the
10 Commercial and Mixed Use (CMU) land use designation. Allow residential uses as
part of mixed-use developments, and support new office and commercial
11 development that is more intensive than what exists to create a vibrant district and
12 increase employment opportunities. The intention of this designation is to transform
strip commercial development into business districts through the intensification of
13 uses and with cohesive site planning, landscaping, signage, circulation, parking,
and the provision of public amenity features.
14
RMC 4-2-080(A)(73)2: Garden style apartments are prohibited. Within the Center
15 Village Zone, ground floor commercial development at a minimum of seventy five
16 percent(75%) of the frontage of the building is required for all residential projects
on parcels abutting NE Sunset Boulevard east of Harrington Ave NE.
17
Policy U17 requires commercial development to be located "near" major arterials. RMC 4-2-
18
Accurate with a few minor caveats. First,it just needs to be clarified that although all the exaction cases cited by the
19 Applicant are based upon real property exactions, the US Supreme Court has recently expanded this concept to
monetary exactions, which arguably covers the security requirements proposed by the City. See Koont:v. St. Johns
20 River Water Management District, 570 US 595 (2013). It is also debatable whether the constitutional focus of the
Applicant's argument should be on the proposed security requirement of City proposed Condition No. 18. If the
21 construction of the mixed use buildings is as much of a sure thing as alleged by the Applicant,then the most onerous
compliance option offered by City proposed Condition No. 18 would be having to wait to develop the townhome phases
22 for perhaps a year or two for completion of the concrete podium of the mixed use buildings. That wait period would
not be subject to case law regarding exactions but would most likely be assessed as a potential takings similar to that
23 applied for development moratoria in See Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 US 302
(2002). However,the Tahoe and Koont:rulings are both based upon the takings clause and involve somewhat similar
24 balancing of public benefit verses private burden. Since the City has no legitimate public purpose in its phasing
requirement, the delays caused by the phasing requirement would likely not withstand a takings challenge under the
25 Tahoe decision.
26 2 RMC 4-2-080(A)(73)was repealed by Renton Ordinance No. 5899. The project is vested to RMC 4-2-080(A)(73)
because it involved preliminary plat review.
Reconsideration Decision
3
1 080(A)(73) implements that policy by requiring mixed use development for projects on parcels
2 abutting NE Sunset Boulevard east of Harrington Ave NE. The City takes the position that without
its proposed Condition No. 18 language, the Applicant could build the townhome units and abandon
3 construction of the mixed use buildings. Such a result would not violate RMC 4-2-080(A)(73). The
Solera project involved approval of a preliminary plat that placed each of the two mixed use buildings
4 on separate lots that comprise the Sunset Boulevard frontage of the project site. The townhome units
5 are left on unit lots that do not abut NE Sunset Boulevard. Most of the townhome lots will in fact be
located a city block away from NE Sunset Boulevard. RMC 4-2-080(A)(73)only requires a minimum
6 amount of commercial space for residential projects"on parcels abutting NE Sunset Boulevard." The
townhome lots do not abut NE Sunset Boulevard and are, therefore, not subject to the mixed use
7 requirement of RMC 4-2-080(A)(73). Similarly,the location of the townhomes would also not violate
Comprehensive Plan Policy U17, which seeks to discourage residential development near major
8
arterials. As implemented through RMC 4-2-080(73), the townhome lots are not "near" NE Sunset
9 Boulevard because they are not located upon lots that abut NE Sunset Boulevard. It should also be
recognized that even if the project site was comprised of just one parcel, there likely would still be no
10 violation of RMC 4-2-080(A)(73). RMC 4-2-080(A)(73) requires mixed use development of"the
frontage of the building." "The building" for a multi-component development such as Solera would
I likely be construed as the portions of the project that front NE Sunset Boulevard, given the
12 comprehensive plan policy encouraging commercial development "near" major arterials.
13 The City also points to the purpose clause of the CV zone, which is focused upon "concentrated
mixed-use residential and commercial redevelopment." See RCW 4-2-020(L)(1). But as with
14 Comprehensive Plan Policy U17, the implementation of that purpose via RMC 4-2-080(A)(73) is
through requiring mixed use development along lots abutting major arterials. Townhomes
15 developed upon lots that don't abut major arterials are permitted outright by RMC 4-2-060(C).
16 Purpose clauses and comprehensive plan policies are useful in interpreting ambiguous use
regulations, but they do not override their plain meaning 3. For this project, RMC is not ambiguous
17 ---townhomes are authorized on the lots proposed by the Applicant because those lots do not abut
NE Sunset Boulevard. The uses specifically identified as permitted in RMC 4-2-060(C) serve as
18 the final word on legislative intent by the Renton City Council and cannot be interpreted away by
background policy ad purpose clauses.
19
20 A more difficult City argument to assess that was raised by the City is RMC 4-2-120(A), which
imposes a minimum density requirement in the CV zone of twenty dwelling units per acre. The
21 City only mentions this argument in passing in its reply brief and doesn't provide any specific
explanation as to why Condition No. 18 is necessary to ensure minimum density. Presumably, if
22 the Applicant only constructs the townhome portions of the project and abandons the two mixed
use buildings the resulting density of the entire project site would fall below the minimum density.
23
24 3
The goal in construing zoning ordinances is to determine legislative purpose and intent. 8 E. McQuillin, The Law of
25 Municipal Corporations, § 25.77 at 244-46 (Revised 3d ed.2010); KJS Dev., Inc. v. Pierce County, 148 Wn.2d 451,
472(2003). When the meaning of an ordinance is plain on its face,the plain language of that provision must be given
26 effect. Dept. of Ecology v. Campbell& Gwinn LLC, 146 Wn.2d 1 (2002).
Reconsideration Decision
4
On this issue the preponderance of evidence in the record simply doesn't support the City's position
2 that Condition No. 18 as proposed by the Applicant would not be sufficient to reasonably ensure
that the final build-out of the project will meet minimum density requirements. In its reply brief
3 the Applicant submitted a declaration by a real estate developer with 40 years experience who
opined that once land and building permits are acquired and impact fees paid, a developer is likely
4 to go through with the approved project. Further, if the mixed use portion were to be temporarily
5 abandoned, one can't lose sight of the fact that the property is located along a major arterial in the
City of Renton and is likely to serve as an attractive development opportunity for a subsequent
6 purchaser who would still be subject to the City's zoning density requirements for that particular
property.
7
8 A final issue raised in the City briefing is RMC 4-11-190, which for the definition of a phased
subdivision requires that the "[t]he preliminary plat approval shall be conditioned upon completion
9 of the proposed phases in a particular sequence and may speck a completion date for each phase."
It isn't entirely clear what "completion" means in this requirement, whether its limited to acquiring
10 final plat approval and/or installing all required infrastructure,or whether it requires that all lots be
developed for the phase to be considered completed. In its response brief to the Applicant's
I reconsideration motion, the City appears to suggest that "completion" means completion of lot
12 development, but then goes on to circumvent this interpretation in its proposed Condition No. 18
by authorizing the townhomes phases to be pursued before the mixed use buildings are completed.
13 Given the context of preliminary plat review, it is reasonable to conclude that a completed phase is
one that has acquired final plat approval, the last step of the subdivision review process. With this
14 interpretation the Applicant's proposed Condition No. 18 is still valid, although the initial wording
requiring the project to "follow"the Ex. 12 phasing plan will be revised to incorporate the language
15 of RMC 4-11-190, i.e. phases shall be completed in sequence in the order specified in the Ex. 12
16 phasing plan.
17 Decision
18 Conditions 12 and 18 of the Final Decision of the above-captioned matter are replaced with the
19 following:
20 Condition 12: The Applicant shall submit an exhibit for each townhome unit with their
21 respective Administrative site plan review application that clearly identifies that each
unit lot contains a minimum of 250 square feet of private yard space with no dimension
22 less than 8-feet in width. The exhibits shall be reviewed and approved by the Current
23 Planning Project Manager prior to each individual Administrative Site Plan issuance for
Blocks RI-R4. Alternatively,the applicant may request a modification to the minimum
24 private yard standards, as permitted by RMC 4-2-115A.2, as part of the Administrative
25 Site Plan Review process for blocks RI-R4.
26 Condition 18: The applicant shall complete the project phases in the sequence of
the Phasing Plan as provided in Exhibit 12. The first townhome phase shall not
Reconsideration Decision
5
1
begin building construction until the building permit for one of the two mixed use
2 buildings has been paid for by the developer and issued by the City. Further, the
second townhome phase may not begin building construction until the building
3 permit for the second mixed-use building has been paid for by the developer and
issued by the City. Certificates of occupancy for the second townhome phase will
4 not be issued until the podium and framing for the first mixed use building have
5 passed inspection.
6 Conditions 33 and 34 are added to the Final Decision to provide as follows:
7 Condition 33: Individual final plats for all phases of the subdivision shall be
8 submitted within five (5) years from the date of preliminary plat approval.
Extension(s) of the preliminary plat approval may be considered via RMC 4-7-
9 080(L)(1) and (2).
10 Condition 34: The installation of public infrastructure associated with Phase I of
the Solera Master Plan (Exhibit 12) and identified in RMC 4-7-100 shall be
11 completed prior to final plat approval of the initial phase unless the Administrator
12 approves a discretionary deferral of plat improvements subject to RMC 4-9-060.
13
Decision issued January 30, 2019.
14
15J
Phi A.Olbreechts
16
17 Hearing Examiner
18 Appeal Right and Valuation Notices
19
20 RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III application(s)
subject to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner's
21 decision must be filed within fourteen (14) calendar days from the date of the decision.
22
Affected property owners may request a change in valuation for property tax purposes
23 notwithstanding any program of revaluation.
24
25
26
Reconsideration Decision
6