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