HomeMy WebLinkAboutAppeal - Van Ness Feldman CITY OF RENTON
NOV 26 2014
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RECEIVED
2 CITY CLERK'S OFFICE
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7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON
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9 RE: Vuecrest Estates Preliminary Plat
APPEAL OF HEARING
10 EXAMINER'S FINAL DECISION
Preliminary Plat UPON RECONSIDSERATION
11 LUA13-000642
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14 The Applicant for Vuecrest Estates Preliminary Plat,by and through its counsel of
15 record, Brent Carson and Van Ness Feldman LLP, files this appeal of the Hearing
16 Examiner's Final Decision Upon Reconsideration dated November 15,2014 (the
17 "Decision") and asks the City Council to eliminate or modify Condition 13 of the
18 Decision for the reasons set forth below.
19 I. Standing
20 Pursuant to Renton Municipal Code(RMC)4-8-110(F), the Applicant has
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standing to appeal the Hearing Examiner's Decision.
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 1 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(20 6) 623-9372
I H. Substantial Errors Justifying Elimination or. Modification of Condition 13
2 A. Introduction
3 This Appeal is focused entirely on the requirement of Condition 13 in the
4 Decision. Condition 13 forces the Applicant to extend a public road, Smithers Ave. S.,
5 over adjoining private property that the Applicant does not own or control. The record
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demonstrates that the owner of that adjoining private property refused to grant the
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Applicant any rights of access. With the condition, asimposed, the Applicant has no
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9 ability to develop the Vuecrest Estate's plat.
10 No other subdivision previously approved in this area under the same conditions
11 has been placed in this unfair,unreasonable and illegal predicament. These prior
12 subdivisions each extended Smithers Ave. S. through their properties and ended that
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public road with a temporary cul-de-sac. The Applicant for Vuecrest Estates likewise
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proposed to extend Smithers Ave. S. through its property and build a temporary cul-de-sac
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16 at the end of its property. When the adjoining property to the east develops, Smithers
17 Ave. S. will be extended by that owner to Main Ave.S. (102nd Ave. SE)providing a
18 secondary access route for this neighborhood. Unfortunately,unlike each of the prior
19 subdivision approvals, the Hearing Examiner in this case rejected a temporary cul-de-sac
20 and imposed Condition 13, which requires the Applicant,prior to final plat approval, to
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extend Smithers Ave. S. to the east, across another owner's private property, to connect to
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Main Ave. S.
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24 In addition to the disparate treatment of Vuecrest Estates, as compared with other
25 subdivisions in this neighborhood,the Staff in this case misrepresented to the Applicant
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 2 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 that a temporary cul-de-sac would be approved. At the very start of the process,the Fire
2 Department's representative stated in writing to the Applicant that: "A proposed
3 temporary cul-de-sac would be acceptable if it meets all required dimensions and
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5 construction requirements." Exhibit 35,Att. B. The City's senior planner also confirmed
the City's position on the acceptance of a temporary cul-de-sac:
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7 "The City is asking that you provide stub to the property to the•east but are
not asking you to make the improvements to provide secondary access as
g part of the proposed development. However,without the secondary access
a cul-de-sac would be required for fire turn around . . .
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10 Ex. 35, Att. C. When the City Staff proposed that the Applicant apply for a variance in
order to approve a temporary cul-de-sac, Staff wrote: "it will be supported by the City."
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12 Ex. 35,Att. H.
13 Based on the Staff s clear representations to the Applicant on the acceptability of a
14 temporary cul-de-sac,the Applicant invested hundreds of thousands of dollars to process
15 this preliminary plat and address all issues raised by the City. If a secondary access were
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going to be required,the Applicant would not have a proceeded with this project. Yet,
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when the staff report was issued weeks before the Preliminary Plat public hearing,the
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19 Staff reversed course,rejecting the previously accepted temporary cul-de-sac design, and
20 demanding extension of Smithers Ave. S. to 102 Ave. SE. The Staff s behavior in this
21 matter and their last-minute reversal justifies the City Council to question the credibility
22 of the City's testimony and to strike or revise Condition 13.
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 3 Feldman up
719 Second Avenue Suite 1150
Seattle, WA 98104
(20 6) 623-9372
I B. A Temporary Cul-De-Sac Complies with RMC 4-6-060.H.1
2 The Hearing Examiner erred by finding that a temporary cul-de-sac, as proposed
3 by the Applicant, and as originally accepted by Staff, failed to meet the requirements of
4 RMC 4-6-060.H.1. The City's dead end street standards prohibit permanent dead end
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streets unless a future connection is physically impossible. RMC 4-6-060.H.1. However,
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7 this code provision, as previously interpreted by City Staff, allows a temporary cul-de-sac
8 to be built if, in the future,that road can be extended when the adjoining property is
g developed.
10 The Applicant did not propose a permanent dead end street. Instead, it proposed a
11 temporary cul-de-sac. To mitigate impacts, the Applicant proposed to install sprinkler
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systems on every home in the development and to provide an internal circulation road
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within the plat. Moreover, development of Vuecrest Estates would bring this
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15 neighborhood one step closer to having a completed secondary access. With Condition
16 13, the plat cannot develop and the opportunity to extend Smithers Ave. S. closer to 102nd
17 Ave. SE is lost.
18 C. If Required, a Variance from the Secondary Access Requirement Should have
been Granted
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20 As presented above, the temporary cul-de-sac should have been approved without
21 the need for a variance. However, if a variance is required, it should have been granted by
22 the Hearing Examiner. Council should reverse the Hearing Examiner and grant the
23 variance.
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 4 Feldman,,,
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 1. The Hearing Examiner Applied the Wrong Variance Criteria.
2 The Hearing Examiner mistakenly applied the street improvement modification
3 provisions set forth in RMC 4-9-250(C)rather than the variance provisions in RMC 4-9-
4 250(B). Had the correct variance provisions been applied,the unrefuted evidence
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6 presented by the Applicant and its experts should have led the Hearing Examiner to grant
7 the variance from the secondary access requirements.
8 The subject application was for a Preliminary Plat. Preliminary Plats are regulated
9 under Title IV, Chapter 7 of the Municipal Code. RMC 4-7-150 establishes the general
10 and minimum street requirements for plats. RMC 4-7-150(D),which imposes the
11 requirements for streets in subdivisions, states that: "The street standards set by RMC 4-
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6-060 shall apply unless otherwise approved." (Emphasis Added). The street standards in
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14 RMC 4-6-060 include those provisions in RMC 4-6-060(H) Dead End Streets. Thus, in a
15 plat application,the street standards in RMC 4-6-060 are.applied through the minimum
16 street requirements as set forth in Chapter 7, Section 4-7-150 and may be varied in the
17 preliminary plat approval.
18 The Hearing Examiner is given express authority to grant variances from the
19 requirements for subdivisions, as set forth in Chapter 7,including variances from the
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street standards. See RMC 4-7-240(1). The Hearing Examiner may grant such a variance
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22 by following the variance procedures set forth in RMC 4-9-250(B). RMC 4-7-240(A)
23 states: "A variance from the requirements of this Chapter may be approved by the
24 Hearing Examiner,pursuant to RMC 4-9-250(B)".
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 5 Feldman u,
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
I The Applicant applied for a variance under RMC 4-9-250(B), seeking a variance
2 from the secondary access standards in RMC 4-6-060,which were being imposed on this
3 subdivision through RMC 4-7-150. Exhibit 35,Att. I. The variance application provided
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an analysis showing compliance with each of the four criteria under RMC 4-9-250(B)
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6 including, in particular, criteria RMC 4-9-250(B)(5)(b)which states that"the granting of
7 the variance will not be materially detrimental to the public welfare or injurious to the
g property or improvements in the vicinity and zone in which the subject property is
9 situated." The Applicant never asked for a street improvement modification under section
10 RMC 4-9-250(C). It was an error for the Hearing Examiner to apply the street
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improvement modification provisions,under RMC 4-9-250(C),when a variance was
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sought under RMC 4-7-240(A).
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14 2. The Evidence Supports the Granting of a Variance
15 Witnesses for the Applicant presented unrefuted evidence that the variance criteria
16 had been met and that the variance should have been granted. See Testimony of Mr.
17 Maher Joudi; Testimony of Mr. Carl Anderson; and written testimony of Vincent J.
18 Geglia, Exhibit 35,Att. K.
19 Mr, Vince Geglia, a traffic engineer with Traff )e,provided a report
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demonstrating that the surrounding streets in this neighborhood carry low volumes of
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traffic at relatively low speeds and concluding that the risk of traffic accidents that would
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23 block access to emergency vehicles is very low. Exhibit 35,Att. K. His report also
24 confirms that the looped road proposed for Vuecrest Estates will provide opportunities for
25 circulation of emergency vehicles within the plat.
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 6 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 Mr. Maher Joudi, a civil engineer with D R Strong Consulting Engineers Inc.,
2 testified that the wide roadways (32.5' of pavement) and adjacent sidewalks (4.5' each
3 side)provide a total width of over 40 feet for an emergency vehicle to travel from the
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intersection of 102 Ave. SE and SE 186th Street to the proposed development. He noted
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6 the minimal on-street parking on these streets, given that each home along this roadway
7 has a garage and off-street parking in their driveway.
g Mr. Carl Anderson, a registered Fire Protection Engineer with The Fire Protection
9 International Consortium, Inc.,presented expert testimony regarding the minimal risks to
10 life and safety posed by this development without having a secondary access and the
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significant reduction in risk by the Applicant agreeing to install sprinklers in every home.
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His unrefuted testimony was that the addition of 20 lots"would not be a significant
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14 detriment to public safety based on what's already in the area."
15 The allegation by Staff,that this project would create a dead end street being 2400
16 feet long with 99 homes ori it was fully refuted by Mr. Carl Anderson who demonstrated
17 that only 800 feet of the roadway would have a single access because of internal
18 secondary access loops that are provided off this street along its length. Mr.Anderson
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also confirmed that, of the 99 homes that Staff alleged to be on this street, 42 of those are
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on two different streets, S. 47th PL and SE 185th PL, that have no impact on access to and
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22 from Vuecrest Estates. Furthermore, of the existing 57 homes not on those two streets, 36
23 are within the Stonehaven Plat that has a looped road,which allows for two ways of
24 access or egress within that plat.
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 7 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(20 6) 623-9372
1 These facts, coupled with the significant mitigation of sprinklering these homes,
2 led Mr.Anderson to his expert opinion that there would be no material detriment to public
3 safety by granting the requested variance. That testimony is unrefuted.
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If the City Council determines that a variance was required,based upon this
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6 testimony, the City Council should grant that variance and strike Condition 13 from the
7 Decision.
g D. Condition 13 is Arbitrary and Capricious
9 Requiring.Vuecrest Estates to provide secondary access in this case, as imposed by
10 Condition 13,is arbitrary and capricious. The prior subdivisions in this neighborhood
11 were authorized to extend Smithers Ave. S. through their properties to a temporary cul-de-
12 sac. No secondary access was required for these other projects. Vuecrest Estates merely
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sought to be treated like all other applicants under similar conditions. There is no basis to
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15 impose on secondary access requirement on this applicant.
16 It is also arbitrary and capricious to require secondary access given the City Staff's
17 express representations to the Applicant that a secondary access would not be required.
18 Those representations were made four separate times. In the second Pre-Application
19 meeting, the City's Fire Department representative stated the Fire Department's position
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clearly: "A proposed temporary cul-de-sac would be acceptable . . ." Ex. 35,Att. B. This
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was reconfirmed in the Fire Department's email: "the actual [secondary access]
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23 connection does not have to be achieved at this time." Ex. 35,Att. C. After the project
24 was put on hold, and there were further discussions with City Staff and the Mayor and the
25 City attorney's office,the Fire Chief elected to withdraw an earlier letter, and the City
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 8 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 informed the Applicant that the application would be processed for approval without a
2 secondary access. According to the testimony of Ms. Higgins, withdrawal of the Fire
3 Chief s earlier letter was done specifically to induce the Applicant to continue processing
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its plat application. In January 2014,when the City informed the applicant that a formal
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variance application was required, it was made clear in Ms. Higgins' email that the City
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7 supported this variance request. Ex. 35,Att. H.
g In light of these representations, Condition 13 should be eliminated and a
9 temporary cul-de-sac authorized.
10 E. Condition 13 Violates RCW 82.02.020
11 RCW 82.02.020 restricts the City from imposing conditions on a plat where there
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is no nexus and rough proportionality between the condition imposed and the alleged
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impacts. See City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn.App. 17,
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45 (2011). Here,the roads serving this plat are adequate. There is no permanent dead end
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16 •street proposed,merely a temporary cul-de-sac. This project is providing its fair share
17 contribution to a future secondary access by extending Smithers Ave. S.through its
18 property. This is consistent with the City's approval of the prior plats in the neighborhood
19 that were approved under similar circumstances without requiring a secondary access.
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The obligation in Condition 13 to extend Smithers Ave. S. to the east, across
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property that the Applicant does not own or control is a heavy burden that far exceeds the
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23 impacts caused by the project. The added risk to public safety from approval of these 20
24 homes is negligible. The Applicant attempted,in good faith, to acquire rights from the
25 adjoining owner to extend the road to the east, and that owner would not agree to grant
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 9 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 such access rights. Condition 13 is therefore impossible to meet and effectively results in
2 denial of this project. With Condition 13, as written,until the property to the east
3 develops or agrees to dedicate a right-of-way to the City,no reasonable use can be made
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of the subject property. This raises the potential of a uncompensated taking.
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6 F. Condition 13 Violates the Applicant's Substantive Due Process Rights
Condition 13 also violates the Applicant's substantive due process rights. A land
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8 use regulation violates substantive due process where(1)the regulation fails to achieve a
9 legitimate public purpose; (2)the means adopted are not reasonably necessary to achieve
10 that purpose; or(3)the regulations are unduly burdensome on the property owner.
11 Robinson v. City of Seattle, 119 Wn.2d 34(1992). While the City's proposed secondary
12 access requirement may meet the first prong,it fails the second two.
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A secondary access is not reasonably necessary. The roads serving this plat meet
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or exceed City standards. There is ample width for emergency vehicles to access this plat.
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16 The total road and sidewalk width of over forty feet(40'), the low traffic volumes,the low
17 speeds through this neighborhood, and low probability of blocking accidents and the
18 internal circulation demonstrate that the risk of a fire truck or ambulance failing to gain
19 access to this plat through existing access roads is negligible. To mitigate impacts, every
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home in this development will have a sprinkler system, designed to quickly and
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effectively respond to a fire emergency. Smithers Ave. S. will be extended through
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23 Vuecrest Estates eastward to the adjoining property that fronts on 102nd Ave. SE.
24 Vuecrest Estates moves this neighborhood one step closer to achieving the desire for
25 secondary access. The other plats in this neighborhood were approved without a
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 10 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 secondary access. Expert testimony from the Applicant's witnesses demonstrated that
2 there is no significant increase in risk from the addition of twenty new homes.
3 Regarding the third factor, courts consider the (a)nature of the harm to be avoided;
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(b) the availability and effectiveness of less drastic measures; and(c)the economic loss
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6 suffered by the property owner.Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 331,
7 (1990). Other nonexclusive factors that may be helpful in the balancing required under
g the third factor include the seriousness of the public problem,the extent to which the
9 landowner's property contributes to the problem, the degree to which the regulation solves
10 the problem, and the feasibility of less burdensome solutions. Id.
11 Here, imposition of Condition 13 effectively results in denial of the project, the
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loss of over hundreds of thousands of dollars invested to date in the Project and the loss of
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14 millions of dollars in lost profit. The City already approved neighboring plats on this
15 same road without requiring a secondary access, so the determination was already made
16 by the City that this is not a serious problem. Moreover,the repeated position of City
17 Staff that a secondary access connection would not be required for Vuecrest Estates
18 confirms that City Staff did not observe this to be a serious issue. The Applicant made a
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good faith effort to either acquire the adjoining property,to the east or acquire a right-of-
20
ight-of20
21 way through that property,but the adjacent owner would not agree to sell or grant such a
22 right-of-way.
23 There are far less burdensome solutions to address the City's concerns and these
24 have been agreed upon. Every home will have a fire sprinkler. An alley has been
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 11 Feldman up
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 designed to provide a looped system through this plat to provide enhanced
2 maneuverability around the homes. The internal roads have been designed 4 feet wider
3 than the City minimum standards. All of these measures address the City's concern with
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far less impact on the Applicant.
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6 III. Relief Requested
For all of the reasons noted above,we urge the City Council to strike Condition 13
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8 from the Decision.
9 In the alternative,we ask the City Council to revise Condition 13 to allow the
10 Applicant to provide secondary access in ways other than extending Smithers Ave. S.
11 immediately to the east and to the specified intersection.
12 As shown in Exhibit 37, on sheet 1 of 1,there is one parcel of land(the"Easterly
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Parcel") immediately east of the easterly end of Smithers Ave. S. as proposed to be built
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by the Applicant. Mr. Jamie Waltier testified that the owner of this Easterly Parcel will
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16 not sell his property or provide an easement for secondary access. Exhibit 37 shows on
17 Sheet 1 of 1 another parcel of land(the"Southeasterly Parcel")located between Tract`B"
18 and Tract"C"on the Proposed Vuecrest Estates plat and 102nd Ave. SE. Secondary
19 access might be available through that parcel.
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Condition 13, as currently written,reads:
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Prior to the recording of the final plat, a secondary fire access shall be
22 constructed that extends Smithers Ave S to the east to directly connect to
Main Ave S(102nd Ave SE). The extent of street improvements necessary to
23 effectuate this connection shall be determined by the City of Renton Fire
24 Department in accordance with applicable fire code standards and shall be
the minimum necessary to provide for safe and effective secondary access for
25 fire trucks and emergency vehicles.
APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 12 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(20 6) 623-9372
I As written, it appears that this condition can only be satisfied by acquiring a public
2 access easement through the Easterly Parcel and providing a fire access road to the
3 specified intersection. Even if a secondary access could be established between the plat to
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a location on 102nd Ave. SE through the Southeasterly Parcel, or through some other
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parcel, it would appear that this would not meet the specific terms of Condition 13.
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7 If the City Council does not strike Condition 13,which it should do, Condition 13
g should, at a minimum,be revised to read as follows:
9 Prior to the recording of the final plat, a secondary fire access shall be
constructed providing a second means of access from Main Ave S(102"d
10 Ave. SE)to the plat by fire trucks and emergency vehicles. The extent of
11 street improvements necessary to effectuate this connection shall be
determined by the City of Renton Fire Department in accordance with
12 applicable fire code standards and shall be the minimum necessary to
provide for safe and effective secondary access for fire trucks and emergency
13 vehicles
14 At least this revised condition will provide the Applicant with some flexibility to seek a
15 secondary fire access route.
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17 Dated this 2e day of November,2014.
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VAN NESS EL
20Ar;r� .
21 BY:
By t C on,W� A#16240
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 13 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 I, Jennifer Sower, declare as follows:
2 That I am over the age of 18 years,not a party to this action, and competent to be a
3 witness herein;
4 That I, as a legal,assistant in the office of Van Ness Feldman,LLP, caused true and
5 correct copies of the following documents to be delivered as set forth below:
6 1. Appeal of Hearing Examiner's Final Decision Upon Reconsideration; and
7 2. Exhibits 35 and 37 entered into the record in September 16,2014 hearing; and
8 3. This Certificate of Service
9 and that on November 26, 2014, I addressed said documents and deposited them for
10 delivery as follows:
11
12 Mr. Jason Seth [x] Via hand delivery
Acting Deputy Clerk
13 City of Renton Clerk's Office
1055 S. Grady Way
14 Seventh Floor
Renton,WA 98057
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16 Larry Warren [x] Via email
Renton City Attorney [x] Via U.S. mail
17 Renton City Hall lwarrenArentonwa.gov
1055 S. Grady Way
18 Renton,WA 98057
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20 I certify under penalty of perjury under the laws of the State of Washington that
21 the foregoing is true and correct.
22 EXECUTED at Seattle,Washington on this 26th day of November, 2014.
23
24 J er Sower, eclarant
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APPEAL OF HEARING EXAMINER'S Van Ness
FINAL DECISION UPON RECONSIDERATION 14 Feldman
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372