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HomeMy WebLinkAbout08-31-2020 - HEX Final Decision Final Decision PAGE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 THE HEARING EXAMINER OF THE CITY OF RENTON Appeal1 of Finding of Violation Renton Hotel Investors, LLC and King County Case No. CODE20-000321 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION King County and Renton Hotel Investors, Inc (RHI) appeal a Finding of Violation (FOV) that alleges that their placement of a deintensification shelter at a Red Lion Hotel in the Commercial Arterial district of Renton violates Renton’s zoning code and requires a business license. The deintensification shelter was instituted as part of the implementation of a March 1, 2020 order issued by King County’s local health officer to de-intensify the density of existing homelessness shelters and encampments in to prevent the spread of the COVID-19 virus. The violations of the FOV are sustained, the corrective action is not. King County, RHI and/or the Downtown Emergency Service Center (DESC) are required to either vacate the Red Lion site within 60 days or apply for an unclassified use interpretation within 21 days2. If they apply for an unclassified use interpretation and that interpretation approves use of the current location coupled with a requirement for a conditional use permit, application for the conditional use permit shall be made within 21 days of issuance of the unclassified use interpretation. The Appellants shall vacate the RHI site within 60 days of denial of the unclassified use or conditional use permits. 1 During review of the prehearing order the City indicated it preferred to have this proceeding characterized as a “request for hearing” as opposed to appeal. RMC 1-3-2E characterizes this proceeding as an appeal. King County and RHI disagree with the allegations in the Finding of Violation and wish to have it reversed. This is an appeal as identified by RMC 1-3-2E. King County, RHI and DESC will be collectively identified as Appellants, although it is recognized that DESC failed to file a timely appeal. 2 As detailed in Conclusion No. 7, DESC has the option of being bound the corrective action of the FOV in lieu of conforming to the requirements of this decision. Final Decision PAGE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 RHI, DESC and King County shall file for a complete business license application within 30 days of the resolution of this appeal if they are still allowed to operate a deintensification shelter within the City of Renton. King County and DESC may continue to operate the deintensification shelter during the review of the unclassified use and conditional use permits. An opportunity to apply for an unclassified use interpretation is authorized by this Decision because the rulings of this Decision strongly suggest that the Appellants have a reasonable chance of acquiring authorization to retain the deintensification shelter at its current location. The Renton Municipal Code (RMC) assigns jurisdiction to issue unclassified use interpretations exclusively to the Community Services Director, which is why this Decision does not include a final ruling on whether the shelter should be authorized as an unclassified use. Unclassified uses are generally authorized in zones that allow similar uses of similar intensity. There are three primary reasons why it is determined that the Appellants have a reasonable chance of securing approval of the current site as an unclassified use: (1) social service organizations are authorized as conditional uses in the CA zone and encompass most of the services provided at the deintensification shelters, except for night shelter, case management and crisis services; (2) the night shelter services provided by the deintensification shelter qualify as hotel use, which is authorized in the CA zone; and (3) in order to avoid impairing the implementation of King County’s local health officer, the City should liberally construe its unclassified use criteria to authorize the current location since King County has made reasonable, unsuccessful efforts to find alternative locations Contrary to the position of the City, the night use of the deintensification shelter qualifies as hotel use. The night use of the hotel qualifies as transient because it is of temporary duration as long as reasonably needed to mitigate the impacts of the COVID- 19 pandemic. Consequently, those zones authorizing both hotel use and social organization use would be a strong candidate for an unclassified use permit for a deintensification shelter. The deintensification shelter could be classified as similar to sites with two primary uses, hotel and social service organization, or as a social service organization use with an ancillary hotel use or vice-versa. Diversion interim facilities, authorized only in industrial zones and not in the CA zone, are also strong candidates for similar use under the unclassified use permit process. They are likely more intense in overall use than the deintensification shelter. However, even if the deintensification shelter is more similar to diversion facilities than social service organizations, the deference legally required of the actions taken by the local health official to address COVID 19 may ultimately be determinative in authorizing the deintensification shelter to remain at its current location. By the same token, the County position that such centers are authorized outright without an unclassified use is not supportable, given that the less intense social service organizations require a conditional use permit. A conditional use permit, processed while the deintensification shelter remains in operation, will not impermissibly obstruct Final Decision PAGE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 the public health officer’s exercise of public health authority while maximizing the fundamental right of the City to regulate the impacts of land uses within its City. Evidence Relied Upon King County, RHI and the City of Renton all exchanged witness and exhibit lists prior to the appeal hearing as required by a prehearing order issued on August 5, 2020. No objections were made to any of the exhibits and all are deemed admitted. A Second Declaration of Daniel Malone was also distributed to all the parties by DESC and that exhibit is admitted as well due to no objections. By written stipulation, the City of Renton, King County and RHI agreed to limit all testimony to declarations and no witness testimony or evidence beyond the exhibits was presented or admitted during the hearing. During the hearing, the attorneys expressed opinions about the common uses of hotels. Since there were no objections to these comments and they comported with commonly known practices of hotel use, those comments are admitted as evidence on common hotel practices. Summary of Testimony A summary of appeal hearing argument is appended as Appendix A. It is only provided as a courtesy and should not be construed as a part of this Decision. Findings of Fact Procedural: 1. Service of Finding of Violation. On June 30, 2020, the City of Renton served a Finding of Violation to Red Lion Hotel Investors, LLC; the Downtown Emergency Service Center (DESC) and King County for zoning code and business license violations (COR 1). 2. Appeals. RHA and King County filed appeals of the FOV on July 15, 2020. DESC never filed an appeal. DESC counsel filed a notice of appearance on August 12, 2020 and made an appearance at the appeal hearing without objection from the other hearing parties. In lieu of an appeal, DESC filed a declaration dated August 11, 2020 from Daniel Malone, the DESC executive director, acknowledging that DESC had not filed a timely appeal but that nonetheless it be granted a request for a hearing on the FOV. DESC filed the declaration a day before response declarations were due from the City, RHI and King County per a stipulated prehearing schedule agreed upon by the City, RHI and Final Decision PAGE 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 King County. DESC’s declaration was not labelled as an appeal or as any motion for a prehearing ruling, but rather was simply labelled as SECOND DECLARATION OF DANIEL MALONE. The first declaration of Mr. Malone had been filed by King County as one of its hearing exhibits. In this regard DESC failed to provide any reasonable notice that it was presenting a jurisdictional issue that could have been more effectively addressed prior to commencement of the appeal hearing. 3. Prehearing Order. As previously noted, the City, RHI and King County stipulated to a hearing schedule. The stipulation was dated July 23, 2020. The Examiner distributed a draft prehearing order implementing the stipulated schedule to the City, RHI, King County and Mr. Malone from DESC on July 28, 2020. The draft order was distributed by email and directed the parties to voice any objections by July 30, 2020. The draft prehearing order included a hearing format that identified the parties authorized to participate in the appeal hearing. DESC was not included in the list of hearing participants. DESC has never filed an objection with the examiner on the hearing format. 4. Appeal Hearing. As directed in the prehearing order, a virtual appeal hearing was held on August 14, 2020. No witness testimony was presented. Counsel for RHI, King County and the City all presented argument. Counsel for DESC, Lisa Chaiet Rahman, appeared at the hearing, stating “I would like to make an appearance for DESC on the record before we continue. I don’t need to argue, I know we’re not on the hearing schedule, but I want to enter an appearance.” The Examiner asked if any of the hearing parties objected to the appearance and no party objected. Substantive: 5. Chronology. On January 21, 2020, the first case of the novel coronavirus (COVID-19) was confirmed in Washington State. On January 31, 2020, the United States Secretary of Health and Human Services declared a public health emergency for the entire nation. On February 19, 2020 the first COVID-19 death in the United States was recorded. On February 29, 2020, Governor Jay Inslee proclaimed a state of emergency in Washington State due to the virus. The following day, on March 1, 2020, King County Executive Dow Constantine proclaimed a state of emergency in King County due to COVID-19. On March 11, 2020, the World Health Organization declared a state of pandemic. On March 13, 2020, President Donald Trump declared a National Emergency due to COVID-10. This was followed on March 22, 2020 with a Major Disaster declaration in Washington State. A statewide lockdown was imposed under the Governor’s “Stay Home-Stay Healthy” Order on March 23, 2020 which was extended on May 4, 2020 through May 31, 2020. Final Decision PAGE 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 The Local Health Officer for King County, Dr. Jeff Duchin, issued an order on March 31, 2020 that authorized King County and all of its cities and towns to use “legally available resources” to “de-intensify or reduce the density of existing homelessness shelters and encampments” and provide such services as food services and sobering centers; provide for behavioral health; enact disinfection measures; and provide public supportive housing and shelter services for persons “at a higher risk category” to reduce the spread of COVID-19. The order specifically prohibited illegal means or behavior in the implementation of the order (COR 3, Attachment A). This order was Amended and extended on May 20, 2020 (COR 3, Attachment B). On April 2, 2020, a RHI and King County entered into a licensing agreement for use of the site subject to this appeal. The agreement granted King County a non-exclusive license to the entire premises of the Red Lion Hotel located at 1 South Grady Way in Renton, Washington for the sole purpose of providing an assessment and testing center and a treatment and recovery center for individuals affected by the COVID-19 outbreak who are not able to isolate or quarantine in their own homes. The license granted King County a limited license to all of the rooms but not including the Yankee Grill restaurant. The license terms were 90 days starting April 2, 2020 with optional 30-day extensions. (COR 10). King County’s Department of Community and Human Services identified the DESC Main Shelter as amongst the most vulnerable populations with respect to COVID -19. The County determined the Red Lion Inn in Renton would best serve the DESC Main Shelter population. The DESC Main Shelter residents moved into the Red Lion on April 9, 2020. COR 4. 6. FOV Violations. The FOV under appeal asserts two violations of the RMC: Violation 1 asserts that the deintensification center is not permitted at its current location in the Commercial Arterial zone under the City’s zoning code. The FOV asserts that the subject property was established as a hotel, which is a permitted use in the CA zone. The FOV further asserts that the deintensification shelter does not qualify as a hotel and is prohibited in the CA zone. The FOV further asserts that the shelter may be authorized in other zones where diversion facilities and diversion interim facilities are allowed as conditional uses, as an unclassified conditional use that is similar to such diversion facilities. The FOV requires the Appellants to correct Violation No. 1 by exercising one of three options: (1) ceasing the use and vacating the property; (2) ceasing the use and reverting to the former hotel use; or (3) ceasing the use and meeting with representatives of the City’s Department of Community and Economic Development to relocate the Final Decision PAGE 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 deintensification shelter as an unclassified conditional use to zones where diversion and diversion interim facilities are permitted. Violation 2 asserts that all three Appellants are operating without a business license. The FOV asserts the Appellants did not apply for a business license in violation of RMC 5-5-3.E05. The correction specified for this violation was to cease operations of the de-intensification shelter. Fines for each violation were set at $250 per day of violation for any violation remaining after August 9, 2020. 7. FOV Parties. The parties to the Finding of Violation are King County, DESC and RHI. RHC owns the premises subject to the FOV, a Red Lion Inn, in which DESC operates the de-intensification shelter under a licensing agreement between RHI and King County. See Finding of Fact No. 5. DESC is a non-profit organization that provides survival services, housing and behavioral healthcare services to adults experiencing homelessness in King County. Their priority is homeless adults with health concerns who have often been discharged by the police, jails and hospitals with nowhere else to go (COR 20). 8. DESC Services and Customary Hotel Use. Hotels commonly provide some, but not all, services similarly provided at the deintensification shelter. As noted by Mr. Schneiderman during the appeal hearing, almost all hotels have laundry and room service. Many hotels have recreational amenities such as gyms, pools and common indoor and outdoor spaces. The Red Lion Inn itself has a full-service restaurant. This restaurant is not part of the License Agreement and is therefore available to the public. DESC states it delivers pre-packaged food to minimize the need for clients to seek outside food (First Declaration of Daniel Malone). The DESC Client Rules and Expectations also includes weekly laundry service (COR 12, Ex. A). However, there are several services presently being offered at the Red Lion Inn that are not customary for hotel use including on-site medical care, mental health and chemical dependency counseling, case management and the housing of a Mobile Crisis Team. (Second Declaration of Daniel Malone). 9. Duration of Hotel Stays. The record does not contain much information on typical lengths of guest stays at hotels. The preponderance of evidence establishes that hotels are occasionally used by guests for more than 30 days at a time. As noted by one of the owners of the RHI facility, Red Lion has rented rooms to customers for several weeks to months in the past, without any objection or action from the City of Renton. COR 5. The only other “evidence” in the record were unsworn comments made by Mr. Schneiderman that hotels are sometimes used to house guests for months at a time who have temporarily lost their homes due to disasters such as floods, fires and landslides. Final Decision PAGE 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 No objections were made to Mr. Schneiderman’s comments and they are taken as plausible and for that reason likely accurate. From this limited evidence, it must be concluded that the preponderance of evidence establishes that hotels are sometimes used for as much as months at a time. 10. Mitigation Measures. DESC has undertaken several mitigation measures that make it reasonable to allow the deintensification shelter to continue to operate while the corrective measures of this Decision are implemented. These include the adoption of operational rules that require clients to adhere to a ‘good neighbor agreement’ which includes prohibitions against unlawful behavior and other behaviors that cause community concern, such as panhandling. DESC also provides pre-packaged meals so that clients do not need to go out to seek food. DESC provides contact information to nearby businesses and encourages them to call if they observe issues that might be from the DESC clients. DESC is also in regular contact with the Renton Police and Fire departments to try to proactively reduce the need for EMS services (COR 2). The County has also cited evidence that they are working with the City of Renton. A Renton City Councilperson occupies one of the Governing Committee seats for the King County Regional Homelessness Authority (KCRHA). The County has also granted funds at the City’s request to the Renton Ecumenical Association of Churches (REACH), a local homelessness services provider. The County has engaged in ongoing work sessions with DESC and leaders from Renton’s City Manager’s office, Fire and Police services and Human Services to address operational matters. Thus far, this group has worked to reduce unnecessary calls to Renton’s emergency response system, to supplement on-site security and improve communications between all the entities. Finally, King County authorized $500,000 in mitigation funds for all cities to recover document costs related to the shelter de-intensification sites (COR 6, Ex. A and COR 17). 11. Business License. RHI has a business license to operate the RHI facility as a hotel. It does not have a business license to operate the facility as a deintensification shelter or any use other than a hotel. DESC and King County have no business license to operate any use within the City of Renton. COR 9. 12. King County Reasonably Selected the Renton Site to Implement the Public Health Deintensification Order. King County reasonably selected the Renton site to implement the public health deintensification order. Given the deference due to the actions of the local public health official in ordering the deintensification of homeless shelters, it must be further concluded that in the absence of evidence establishing other available sites that requiring relocation would impair the ability of the local public health official to effectively mitigate the dangers of COVID 19 to public health. Final Decision PAGE 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Following Dr. Duchin’s March 31, 2020 deintensification order, King County began a search for suitable hotel locations to house the homeless shelter population. The County’s considerations were based on location, size, cost and owner willingness (King County Brief). The County argues the Red Lion Inn was the only hotel within the county that met the necessary criteria including ownership willing to accommodate homeless individuals. Mr. Hague stated the County had hoped to find hotels and motels located throughout the county, not too far away from Seattle and not overly concentrated in any particular area. Cost was an issue as the County could not afford upscale hotels and the ownership of boutique hotels could not accept the low amount of rent the County could afford (COR 17, page 3 at 7-9, 15-18 and KC 02, page 5 at 7). Very few of the over 70 hotels or motels the County contacted were available in King County and of those there were very few had hotel owners willing to have their facilities used as a homeless shelter (COR 17, page 4, at 18). To accommodate DESC’s Main Shelter needs, the hotel needed to be able to safely house over 200 residents in a single location. Very few moderately priced hotels could accommodate this many people (COR 17, page 5, at 11-14). The Renton Red Lion was unique in that it had 250 individual rooms and the ownership was willing to rent to the homeless at an affordable rate (COR 17, page 5, at 15-16 and KC 02, page 5 at 14-15). The City argued the County deems Mr. Duchin’s order a free pass to indefinitely violate any inconvenient laws standing in the way of the least costly solution (City Brief, page 2, at 15-17). The City further argues King County had other options but chose not to exercise them because the lease rates were higher than the County was willing to pay (City Brief, page 9 at 7-17). The County did not specify the cost difference between the Red Lion Inn and other available options. The cost difference argument is also challenging given the County received $530 million in federal CARES Act funding, of which it had only allocated a minority portion as of June 30, 2020. The City argues that the emergent nature of the crisis might have justified the County’s choice to place a homeless shelter in an inappropriate zone, but given it’s been months, money is available and more staff could have been hired, the County’s choice to continue the illegal action is no longer justifiable (City Brief, page 10 at 17-21). The City raises compelling points, but they are not sufficient to overcome the high deference case law requires be given to the actions of the local public health official to find an appropriate site for the deintensification. The County has clearly taken an extensive effort in finding a suitable location for its shelter and has reasonably concluded that other sites are not reasonably available. The danger of COVID 19 to public health remains high. In the absence of the City identifying any specific, readily available and legally suitable sites with owners ready and willing to lease their site to King County, the deference due to Dr. Duchin’s deintensification order compels the result that the County has acted reasonably in locating its shelter and no other sites can Final Decision PAGE 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 be reasonably used without materially impairing the ability of Dr. Duchin to effectively reduce the danger to public health created by COVID 19. Legal Analysis 1. Authority of Examiner. The Hearing Examiner has the authority and jurisdiction to review code violations as provided in RMC 1-3-2. Jurisdiction over DESC is more specifically addressed in Conclusion of Law No. 7 below. 2. The Deintensification Shelter is Not Permitted Outright in the CA Zone as a Hotel Use. A contextual analysis of Renton’s zoning code readily reveals that the deintensification shelter is not permitted outright in the CA zone as a hotel use. Individual uses that comprise portions of the services provided by DESC at the RHI facility would on their own necessitate a conditional use permit. Specifically, uses on their own that would qualify as a social service organization use require a conditional use permit. For these reasons, the totality of services provided by DESC at the RHI facility cannot be considered a hotel use that is permitted outright. None of the Appellants assert that the deintensification shelter qualifies as anything but a hotel in the CA zone. A major issue to be resolved by this appeal is whether the center in fact qualifies as a hotel, which is permitted outright in the CA zone. RMC 4.11.080 defines hotel as follows: A building or portion thereof designed or used for transient rental for sleeping purposes. Hotel structures are at least two (2) stories in height, with lodging space above the first floor. Lodging space may also be located on the first floor. Individual rooms are typically accessed from a common hallway. A central kitchen and dining room and accessory shops and services catering to the general public may be provided. Not included in this definition are multi-family dwellings, bed and breakfasts, or motels. The City has identified several reasons why it believes that the deintensification shelter doesn’t qualify as a hotel use. The most pertinent for purposes of this Conclusion of Law is its position that the host of social services provided by DESC goes beyond the purpose of hotel use for “sleeping purposes.” The hotel definition expressly allows for uses beyond those necessary for sleeping, specifically its allowance for dining facilities and accessory shops and services open to the general public. DESC’s social services are arguably distinguishable because they’re not available to the general public. However, the City also conceded during the hearing that hotels commonly offer accessory services that do not cater to the general public, such as gyms, spas and business centers. Consequently, the social services provided by DESC can be authorized as consistent Final Decision PAGE 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 with the “sleeping purposes” element of the hotel definition if they are within the range of impliedly authorized uses commonly provided by hotels to its guests, such as gyms, spas and business centers. A contextual analysis of the City’s zoning use table reveals that the DESC social services cannot be authorized as these type of accessory uses. The goal in construing zoning ordinances is to determine legislative purpose and intent. 8 E. McQuillin, The Law of Municipal Corporations, § 25.77 at 244-46 (Revised 3d ed.2010); HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 472 (2003). When interpreting a statute, a court must give effect to legislative intent within the context of the entire statute. Mangat v. Snohomish Cnty., 176 Wn. App. 324, 330 (2013). In this regard, assessing how other uses are treated within the context of an entire use zoning table serves as a useful tool in discerning legislative intent. Specifically, the Renton City Council likely would not have intended the social services provided at the RHI facility to be permitted outright as a hotel use if standing alone at the same level of intensity in the City’s zoning use table those same type of uses would be prohibited or require a conditional use permit in the same zoning district. The deintensification shelter includes at least one program that would require a conditional use permit by the City’s zoning use table if that were the only use provided at the RHI facility. RMC 4-2-060G authorizes social service organizations in the CA zone as a hearing examiner conditional use. RMC 4-11-190 defines a social service organization as follows: Public or nonprofit agencies that provide counseling, therapy, or other social or human services to persons needing such services due to physical, mental, emotional, or other disabilities, but do not provide crisis intervention or case management. Also, public or nonprofit agencies that provide public services such as food banks, clothing banks, day shelters, and job training centers. This does not include religious institutions and offices, government facilities, schools, hospitals, clinics, day care, or residential uses. The services included in the social service organization definition include several of the social services provided by DESC, including mental health counseling, food bank, day shelter and job training services to persons needing such services due to disability. It is recognized that many of the services provided by DESC may not be provided as intensely as contemplated in the definition, e.g. job training may only be provided an hour a day as opposed to constituting a 40 hour a week program to which the operations of a building or tenancy are fully committed. To the extent that those uses are moderate or nominal in nature, they could be characterized as accessory or ancillary to the hotel use and be distinguishable to similar, stand-alone uses in the use table on that basis. The one fairly clear exception to the accessory/ancillary service distinction is day shelter use. There is likely no difference in intensity between the “day shelter” Final Decision PAGE 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 contemplated in the social service organization definition and the day shelter use provided by DESC. More likely than not, a large majority of clients at the RHI facility spend a significant amount of the day at the facility since presumably a large majority are unemployed as evidenced by their homelessness status. Dozens or even hundreds of the clients, therefore, use the facility as a day shelter in a manner that would be indistinguishable as a use from the “day shelter” use contemplated in the social service organization definition. Not only would such a use be indistinguishable in terms of character of use, the intensity may be significantly more than a more typical day shelter, due to the large number of DESC clients using the RHI facility. Given that a conditional use permit is required for the day use of the RHI facility as a day shelter in the CA zone, it is unreasonable to presume that the Council intended the same type of day center with the same level of intensity to be converted to an outright permitted use because the scope of services has been increased to include night use. There is the argument to be made that added night shelter use could reduce the impacts of a day shelter and thereby make a conditional use permit unnecessary. A day shelter causes displacement of a homeless population every evening it shuts down whereas a 24-hour shelter does not. However, it is too implausible to conclude that’s why the social services organization expressly authorizes just day shelters and doesn’t mention night shelters. If the Council considered a night shelter a more benign use than a day shelter, it would have expressly authorized it as a permitted use elsewhere in the use table. Instead, it’s not identified anywhere in the code. As noted in RMC 4-2- 050B6, the failure to designate a use in the use table makes it an unclassified use, which either makes it only authorized in zoning district that permit uses of similar intensity or makes it prohibited entirely in the City. Given the legal difficulties and uncertainties associated with zoning for homeless shelters, the Council most likely intentionally delegated the siting of those shelters to the unclassified use process so that the City would have maximum flexibility in adapting to the evolving case law associated with that use. 3. Hotel Guest Use is not Limited to Stays of 30 days or Less. The City has taken the strong position that the requirement in the hotel definition that guest stays be “transient” means that stays must be 30 days or less. Although the vast majority of hotel use may very well be 30 days or less, there is no basis to conclude that hotels stays will not sometimes be longer due to exceptional circumstances such as natural disasters and pandemics. The most compelling reason to disagree with the City’s 30-day interpretation is simply that the Renton City Council didn’t expressly adopt a 30-day limit for hotel stays. If the Council wanted a hard and fast rule on the length of time that someone could stay in a hotel room, it would have been exceptionally easy and clear to throw that into the definition of hotel or transient. Clearly, there would have been no rational reason for the City Council to strictly limit the business of its hotels in such an arbitrary Final Decision PAGE 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 fashion. As aptly discussed by Mr. Schneiderman during the appeal hearing, hotels are most commonly used for business travel, but they are also used sometimes when people need to be away from their usual place of residence, most pertinent during disasters such as floods, fires and landslides. As determined in Finding of Fact No. 9, hotels are occasionally used for stays that exceed 30 days. If presented with Mr. Schneiderman’s scenarios when adopting its hotel definition, the City Council would certainly have not found any reason to limit hotel use for 30 days. There is no valid reason to distinguish relocation of homeless shelter clients due to COVID-19, which is every bit as much of a natural disaster as floods, fires and landslides. The dictionary provides some of the most persuasive authority in favor of the City’s position. In determining the ordinary meaning of a term, a court may use a dictionary. Hunter v. University of Washington, 101 Wn. App. 283, 291 (2000). Merriam-Webster on-line dictionary defines transient in the most pertinent entry as “passing through or by a place with only a brief stay or sojourn.” “Brief,” in turn, is defined as “short in duration, extent, or length.” It is notable that the definitions focus upon brevity in stay, as opposed to lack of permanence. This highlights the fact that the City didn’t choose to use the word “temporary” instead of “transient” in its hotel definition. For the Appellants, “temporary” would be a far more beneficial term as it would be consistent with the concept that measures to control COVID -19 would be considered temporary in that they will end in a few months or years. To call this span of time “brief” does not quite as easily fit into the common meaning of the terminology. Ultimately, the conflict between common hotel practices, likely city council intent and the dictionary meaning of transient can be reconciled by viewing the overall use of a hotel facility. That overall perspective dictates that the deintensification shelter is consistent with the hotel definition requirement for transient use. Even if a hotel is sporadically used for stays that last months or potentially even a couple years, the vast majority of a hotel’s guest stays will be a handful of nights. Overall, that use would have to be considered transient with a few outliers. Once the pandemic is over and DESC no longer needs to use the RHI facility, it will likely go back to renting rooms on a commonly understood transitory basis. From the perspective of decades of use, the Red Lion would very likely devote the vast majority of its room rentals to durations of a handful of nights for the overall duration of its existence would be considered to provide transient room rental. The City relies upon a couple sources of legal authority to assert that a “transient” stay is limited to 30 days. Most notably, it relies upon the International Building Code definition of “transient,” which according to section 202 of the International Building Code is “[o]ccupancy of a dwelling unit or sleeping unit for not more than 30 days.” The International Building Code, including its “transient” definition, is adopted into the RMC by reference by RMC 4-5-050A. There is nothing in the RMC that provides that building code definitions apply to the zoning code. More importantly, the fact that a building has been constructed for a transient occupancy doesn’t necessarily mean that an occasional occupancy that exceeds transient use Final Decision PAGE 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 constitutes an occupancy violation. As with zoning code use violations, it is fairly implausible that Renton or any City would post a vacation order on a hotel because one of its guests had rented a room for more than 30 days. The IBC definition of transient, like the zoning code definition of hotel, is more practically and realistically construed as contemplating an overall transient use, with occasional occupancies that will exceed that 30 days. The City also relies upon WAC 458-20-166, that provides that hotel tax can be collected from lodging guests who for use of real property for 30 days or less. Similar to the RMC and building code analysis, this tax simply recognizes that overall, the duration of most hotel stays will be less than 30 days and doesn’t serve as a legislative determination that all hotel stays must be or are less than 30 days. Finally, the City references Smith v. Dorchester Hotel Co., 145 Wash. 344, 259 P. 1085 (1927), where the court assessed the word “transient” to distinguish between guests and lodgers for purposes of landlord liability. In Smith, the belongings of an occupant of a hotel were stolen. The liability of the hotel owner was contingent upon whether the occupant was a guest or lodger. The court reasoned that a guest is a transient who is free to go and come at pleasure. Synthesizing applicable common law, the court concluded that “the length of stay, the special contract for the room, the existence of a home elsewhere, are all necessary and material, but not altogether controlling factors in the question.” The court found it determinative that the occupant had been going through a divorce and that after occupying the hotel for four months, he no longer had any other permanent home. In assessing the transient nature of his stay, the court concluded that “[h]is stay was not transient in the sense that it is ordinarily used to denote a guest. He was stopping at the hotel, making it his home until such time as he should, for any reason, determine to move to another place.” 145 Wn. At 347 Smith is inapposite because it did not address the guest/lodger status of a homeless person. A homeless person provides a distinguishable place of reference. The occupant in Smith had the means to occupy a permanent residence. Therefore, it was logical to conclude in Smith that he was a lodger as opposed to a guest since he wasn’t concurrently paying for a permanent, regular place of abode elsewhere. The regular place of abode of a homeless person isn’t a permanent residence, but rather a combination of the streets and homeless shelters. The deintensification shelter is not part of that regular place of abode – it is not a shelter that the occupants would have regularly occupied as it is a temporary shelter used as an emergency basis to address COVID-19. As noted in the declarations, the occupants of the deintensification shelter are those that would have normally occupied DESC’s main shelter in downtown Seattle. The plight of the shelter occupants is similar to those displaced by natural disaster – because of the pandemic they have had to move from their regular occupancy, DESC’s main shelter, to the deintensification shelter in Renton. In this sense, the shelter occupancies are transient in that they are temporary lodgings away from their regular abode in the downtown Seattle shelter and the streets. Final Decision PAGE 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 4. Night Use of RHI Facility Qualifies as Hotel Use. The night-time use of the RHI facility qualifies as hotel use. Such use meets the zoning code definition of hotel use and can be separated out temporally from day use as a separate primary use or the hotel use can be considered accessory to the social organization use or vice-versa. The City of Renton has identified three reasons why it believes the deintensification shelter doesn’t qualify as a hotel: 1) the duration of occupancy for guests is longer than 30 days; (2) the services provided by DESC exceed those necessary for sleeping purposes, and (3) the rooms aren’t available to the general public in that they are funded by a single-payer who selects who can stay. As to the first reason cited by Renton for not meeting the hotel definition, as determined in Conclusion of Law No. 3, hotel stays longer than 30 days are consistent with the hotel definition. So long as the duration of stay is reasonably necessary to mitigate against the spread of COVID-19, it is analogous to services provided by hotels to victims of natural disasters and emergencies who are temporarily displaced by their homes. As to the second reason cited by Renton for not meeting the hotel definition, that services provided are not all necessary for sleeping purposes, there is nothing in the record to suggest that the night-time use of the facility involves any social services other than perhaps dinner service. The timing of the services provided is not expressly identified in the declarations, but more likely than not the persons providing counseling and related social services are not working in the evening to provide those services. Dinner service, to the extent that it is considered an evening service, is not materially distinguishable from the food services available to the general public in a hotel. Hotels often provide room service that is only available to hotel guests. The dinner service provided to the RHI occupants may not be delivered to their rooms, but even if distributed at a central location within the hotel the service wouldn’t have any zoning impacts that are materially different from room service or other dining services more traditionally provided by hotels on an exclusive basis to their guests. As to the third reason cited by Renton for not meeting the hotel definition, that there is a single-payer involved, there is nothing within the hotel definition that prohibits a single-payer. It is entirely plausible that companies and organizations pay for numerous rooms at the same time as suggested by King County during the appeal hearing and there is nothing in the record to suggest otherwise. The fact that the hotel definition contemplates that hotel use is available to the general public doesn’t change this construction – King County has simply exercised the option to rent more than one room, an option that is equally available to any other member of the general public. The fact that renting more than one room results in no available vacancies doesn’t render RHI’s building unavailable to the public, as such a construction would lead to the absurd conclusion that booking all rooms within a hotel would be a zoning code violation. Final Decision PAGE 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 5. Deintensification shelter has Reasonable Chance of Securing Unclassified Use Permit in CA Zone. The deintensification shelter has a reasonable chance of securing unclassified use permit in CA zone. From the information in the record, the deintensification shelter could be found either to be appropriate placed in the CA zone as analogous to a social service organization coupled with hotel use, or in an industrial zone as analogous to an diversion interim services facility. The Examiner in this proceeding has no authority to rule upon whether the deintensification shelter use could be allowed in the CA zone. RMC 4-2-050B6 provides that upon inquiry by an applicant the Development Services Division Director shall determine whether a use can be authorized as an unclassified use and that such determination shall be appealed to the hearing examiner. As far as can be discerned from the record, no party to this appeal has requested an unclassified use determination and no one has appealed such a determination to the hearing examiner. It is presumed that the City has raised the issue of unclassified uses sua sponte to support its request for immediate cessation of the deintensification shelter as opposed to a disposition directing the Appellants to apply for an unclassified use interpretation. Given the rulings of this Decision, the City’s position on unclassified uses is not highly compelling. With the conclusions of this Decision, the uses of the project site could be characterized as most analogous to one of three combinations (1) a use composed of two primary uses, i.e. a social service organization and hotel3; (2) a social service organization with an accessory/ancillary use of hotel; or (3) a hotel use with accessory/ancillary social service organization use. These uses are arguably more analogous than the three analogous uses asserted be analogous by the City, i.e. diversion facility, diversion interim service facility and congregate residence. Congregate residences are not as analogous because they do not recognize the social services provided at the deintensification shelter. A congregate residence is 3 The RMC does not prohibit the classification of more than one use on a parcel of property or within a building. Of course, some caution should be exercised in partitioning a use, in so much as a prohibited use can conceivably be partitioned into two or more uses that individually are authorized but collectively are not. Of some relevance on this issue is Chelsea Bus. & Prop. Owners' Ass'n v. City of N.Y., 107 A.D.3d 414 (N.Y. App. Div. 2013). The Chelsea case involved a building that housed both a homeless shelter and some social services programs. The Chelsea court affirmed a decision by the New York City of Department of Buildings that found that a homeless shelter was allowed as a “transient hotel” use in a building that also housed separately social services. Challengers to the decision asserted that the homeless shelter operated in conjunction with the social services offered in the building and thus qualifies as a “non-profit institution with sleeping accommodations,” which was a prohibited use at the building location. The hotel definition in the Chelsea case was very similar to the Renton definition and the court found it applied to the homeless shelter. The court found the social services portion of the building to qualify as a separate use even though they were located in the same building because they were separately operated under separate agreements. In this case, the shelter and other social service programs are all apparently coordinated by one entity, DESC, but the hotel use can be fairly cleanly separated from the other services on a temporal basis. It is also noteworthy that the Chelsea court was willing to classify the homeless shelter as a hotel. Ultimately, how the uses of the deintensification center are partitioned is reserved for the unclassified use determination process required by this decision. Final Decision PAGE 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 defined as “[a]ny building or portion thereof that contains facilities for living, sleeping and sanitation and may include facilities for eating and cooking for occupancy for other than a family.” Noting in the definition identifies any type of social service provided in such a facility. The definition in fact expressly excludes hotels from the definition, which under this Decision means that the night shelter services provided by the deintensification would not be allowed. All of the uses authorized for a social services organization are unsurprisingly focused upon the provision of social services, one of those services characterized as day shelter. Especially when construing the shelter aspects of the deintensification shelter use, it is a use entirely devoted to social services. Further, there is nothing to suggest that the zoning impacts of a deintensification shelter are any more similar to those of a congregate residence than a social services organization, with or without night shelter use. Diversion facilities and interim diversion facilities fare better in a comparative analysis to social service organizations coupled with hotel use. RMC 4-11-040 defines a diversion facility as a “facility which provides community crisis services, whereby individuals are diverted from jails, hospitals or other treatment options due to mental illness or chemical dependency” and an interim diversion facility as a “facility which provides interim or respite services, such as temporary shelter, medical/mental health treatment, case management or other support options such as transportation arrangements for patients referred to such a facility from a diversion facility.” The interim diversion facility references the provision of temporary shelter, but otherwise the two definitions are primarily focused upon social services as opposed to shelter, the converse of the congregate care definition. Interim diversion facilities, with their inclusion of temporary shelter, is somewhat analogous to the hotel and social service functions of the deintensification shelter. However, such diversion facilities are not defined to include as wide a spectrum of social services as social service organizations, such as food banks and job training. The populations of diversion facilities also appear to overall need a more intense level of care than that provided by deintensification shelters since those populations are diverted due to mental illness or chemical dependency from the type of basic social services that are provided by the deintensification center. The inclusion of crisis services and case management services for diversion facilities and their express exclusion from the social services organization belies an apparent understanding that social service organizations will create less significant zoning impacts than diversion facilities. This is supported by the fact that diversion facilities are only allowed in industrial zones with a conditional use permit and social service organizations are additionally allowed in all commercial zones and high-density residential zones with conditional use permits. As determined in Finding of Fact No. 8 the deintensification shelter provides for case management and crises services, but also provides a wide range of more benign services such as food bank and job training. Overall, the intensity of services provided by DESC appears to fit the more benign services provided by a social services organization rather than diversion centers. The Final Decision PAGE 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 record is not conclusive on this issue, however, and that is the issue that may prove significant in a formal unclassified use determination. 6. City Zoning Interpretations and Code Enforcement Actions Should Be Harmonized with A Liberal Interpretation of Public Health Authority. The City’s zoning authority and associated code enforcement should be harmonized with a liberal construction of the exercise of public health statutes. City actions and code interpretations should not unreasonably interfere with public health actions necessary to control the spread of COVID-19. In this appeal King County has taken the position that the actions of its local health officer supersede any conflicting local ordinances or actions, including the City’s zoning ordinance. It is agreed that necessary actions reasonably taken under authority of the public health statutes will likely supersede directly conflicting local ordinances, but also recognized that reasonable efforts must be taken to harmonize compliance with both public health authority with local control when possible. The case primarily relied upon by King County4 for its position is Health District v. Brockett, 120 Wn. 2d 140 (Wash. 1992). In Brockett, the Washington Supreme Court upheld the Spokane Health District's program for a needle exchange to help reduce the spread of HIV. The court found that the constitutional grant of authority to local boards of health to make and enforce rules and regulations regarding public health may prevail over other statutes, as long as the local health regulations do not conflict with other public health laws. Specifically, the Brockett court found that even though the Controlled Substances Act could be read to prohibit needle exchange programs, a public health statute essentially authorizing such programs overrode the prohibitions of the Controlled Substances Act. As identified by King County, Brockett took a strong position on the supremacy of public health laws, as follows: Because protecting and preserving the health of its citizens from disease is an important governmental function, public health statutes and the actions of local health boards implementing those statutes are liberally construed. The legislatively delegated power to cities and health boards to control contagious diseases gives them extraordinary power which might be unreasonable in another context. Indeed, we have said the subject matter and expediency of public health disease prevention measures are "beyond judicial control, except as they may violate some constitutional right guaranteed to [defendants]. 4 King County also relied upon a superior court case addressing the exercise of public health COVID authority int eh City of Kent. Unfortunately, the written superior court decision doesn’t identify the underlying facts of that case so its holding could not be meaningfully applied to this appeal. Final Decision PAGE 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 120 Wn. 2d 149 (citations omitted). Although Brockett supports the County’s position that public health statutes will be liberally construed to supersede other conflicting statutes, the case does not go so far as to dictate that a local public health officer can ignore the carefully laid out dictates of a zoning ordinance at whim, without regard to impact or consequence. Brockett dealt with conflicts between two narrow and specific statutes – a Controlled Substances Act statute that made it a criminal offense to distribute drug paraphernalia that would be used for taking illegal drugs and a public health statute that authorized public health boards to conduct needle exchange programs. The conflict between two narrowly tailored statutes in Brockett falls far short of the type of conflict presented in this appeal. There is no narrowly tailored statute authorizing or requiring public health officers to create deintensification shelters and there is no opposing statute that makes such centers illegal. Rather, King County’s public health officer, in ordering King County to de-intensify its homeless shelters, was acting under the broad authority of RCW 70.05.060(4), which authorizes him to “[p]rovide for the control and prevention of any dangerous, contagious or infectious disease within the jurisdiction of the local health department.” Pitted against that authority in this case is the City’s zoning ordinance, adopted pursuant to the authority and mandates of Chapter 35A.63 and 36.70A to regulate the use of land. Unlike the conflict in Brockett, there is no “either/or” in this appeal that is similar to the conflict associated with needle exchange programs. In Brockett it wasn’t possible to do the needle exchange program encouraged by the public health statute without violating the Controlled Substances Act. In the present situation, there is an entire County of locations from which to choose from for a deintensification shelter, pitted against the fundamental right of cities to control and regulate their built environment. Under such circumstances there should be significant room to harmonize the public health statutes governing disease with the statutes granting zoning authority to cities. In circumstances where the City’s zoning authority materially impedes the ability of the public health officer to control disease, then zoning regulations may have to take second chair. Given the high deference given to the actions of public health officers5, in cases of conflict the zoning regulations should first be interpreted as flexibly as possible to accommodate the need for exercise of public health authority and 5 The City points out that King County is responsible for selecting the site of the deintensification shelter, not the local public health officer. However, King County’s actions are necessary to implement the local health officers deintensification order. In this role, King County is acting on behalf of the local public health officer and as its agent its actions are due the same deference under Brockett. The City also argues that the deintensification order expressly only authorizes legal means. If the actions of King County are consistent with Brockett, they are legal as contemplated in Brockett. This decision requires compliance with the City’s zoning laws with the deference due to King County under Brockett and, therefore, requires a legal means of implementation. Final Decision PAGE 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 if that is not reasonably possible, then an irreconcilable conflict may well exist and local zoning regulations may simply have to be construed as superseded. In the record created for this appeal, King County has made a fairly convincing case that there are no other locations reasonably available to accommodate the urgencies and necessities of COVID-19. As outlined in Finding of Fact No. 12, the County had no other options reasonably available to it for the location of a deintensification shelter. Given the liberal construction and deference due to the exercise of public health authority, the County has established that alternative locations are not reasonably available. As outlined in this Decision, the City’s zoning ordinance can be reasonably interpreted to authorize the deintensification shelter at its current location as an unclassified use. Further, as far as can be ascertained from the record, the shelter is not located adjacent to any sensitive land uses such as a preschool or in the middle of a single-family neighborhood. It’s located at the intersection of SR 167 and Grady Way, a major arterial. As shown in the zoning map attached to the Dolbee declaration, COR 8, thousands of square feet of parking lot separate the center from adjoining commercial/office uses. The issue of adjoining uses can be further investigated as part of the unclassified review process. Given the factors above, if the City still finds that the center is not properly located when making the unclassified use determination required by this Decision, it likely will need to identify specific alternative sites readily available to King County if it hopes to have any reviewing judge agree that the City’s zoning regulations are not materially impeding the authority of King County’s health office to protect the public from COVID19. The City still has the opportunity to identify such sites as part of the unclassified review required by this Decision. However, the evidence presented to this point is not sufficient to overcome the deference due under Brockett for the necessity and reasonableness of the local public official’s actions in ordering deintensification and the corresponding efforts of King County to implement that order. By the same token, King County is in no position to assert that the City has no authority to mitigate zoning impacts if the City finds that a conditional use permit is necessary to authorize the use. Such a requirement, if reasonably exercised, will not encroach into or materially impede the authority of the County’s health officer to address COVID-19. One of those conditions could reasonably be a time limit for the deintensification shelter. As previously discussed, the night use of the facility qualifies as hotel use because it is considered transient for the time necessary to mitigate against the pandemic. That time could be the time necessary to relocate to a more suitable permanent location, if indications are that the shelter will be necessary for more than just a few more months and the City can demonstrate that the County has the resources and there are reasonably available locations to relocate. Such a time period would likely need to include an opportunity for re-evaluation for extensions, given the uncertainties of COVID-19. Final Decision PAGE 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 7. Decision Binding Upon DESC. DESC is subject to the terms of this Decision. In the alternative, it may choose to be bound to the terms of the FOV since it failed to file a timely appeal. Due to the unusual circumstances of DESC’s limited participation, DESC is further authorized to request reconsideration and submit additional declarations to the extent that such evidence would address whether the terms of this Decision would materially affect the ability DESC to further the public health officers objectives of de-intensifying homeless shelters. DESC’s participation in this proceeding has been complicated by its failure to provide reasonably notice to the Hearing Examiner or the City of Renton that its untimely participation should be addressed as a pre-hearing matter. As outlined in Finding of Fact No. 2, DESC’s untimely request to participate in the appeal was well hidden with labelling as a declaration that was filed at the same time as other declarations filed by the other Appellants as their hearing exhibits. In this form, the hearing examiner was not put on reasonable notice that DESC was requesting participation in the hearing and the City was not given a reasonable opportunity to file a motion for dismissal of the request as untimely. The hearing examiner wasn’t made aware of DESC’s untimely appeal request until shortly before the hearing, and at that point it was too late to have a reasonable amount of time to assess DESC’s participation rights or alter the hearing format as necessary. Under normal circumstances DESC’s appeal and/or participation request would be dismissed as untimely. RMC 1-3-2.C.2.b provides that failure to timely request a hearing renders the FOV final as to the responsible party. However, rendering the FOV final as to DESC would require it to immediately cease operating the deintensification shelter. Such a requirement could significantly and materially impair the ability of King County’s local health officer to control and mitigate against COVID-19 as authorized by RCW 70.05.060(4), as there is nothing in the record to suggest that another entity with sufficient expertise and knowledge is readily available to continue providing services at the deintensification shelter. Given the liberal construction that must be given to the public health officer’s actions and authority under RCW 70.05.060(4) under Brockett, it must be concluded that construing the FOV final as to DESC conflicts with the health officers authority and therefore, RMC 1-3-2.C.2.b is superseded by RCW 70.05.060(4). Applying this Decision to DESC is complicated by the fact that DESC did not fully participate in the hearing. At least one DESC representative was able to provide a declaration, see, COR 2, 20 and Second Declaration of Daniel Malone, but except for the DESC declaration requesting participation, the declarations were submitted as County exhibits. Counsel for DESC, Lisa Chaiet Rahman, appeared at the hearing, stating “I would like to make an appearance for DESC on the record before we continue. I don’t need to argue, I know we’re not on the hearing schedule, but I want to Final Decision PAGE 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 enter an appearance.6” DESC Counsel arguably waived the right to participate, at least to the extent of presenting argument, by stating she didn’t need to argue, however she qualified this by noting that DESC was not listed on the hearing format, which had been issued prior to Mr. Malone’s declaration had been submitted requesting participation. It is also noteworthy that in the COR 20 declaration by Daniel Malone, Mr. Malone attested on August 11, 2020 that “he was fully involved in the negotiation of the stipulation regarding the hearing of this matter, and was copied on the documents that were exchanged regarding the scheduling and procedure for the hearing.” The prehearing order for this appeal identified the parties who could participate in the appeal hearing and those parties did not include DESC. The prehearing order was issued on August 5, 2020 and emailed to Mr. Malone. Mr. Malone did not object to the hearing format. Out of an abundance of caution, to ensure that DESC’s procedural due process rights are fully protected, DESC will be given an additional opportunity to present declarations or argument in a request for reconsideration. However, such right is limited to evidence and argument that the terms of this Decision would materially impair the ability of DESC to further King County local health officer’s objective of de- intensifying homeless shelters for purposes of addressing COVID-19. This is because the only reason that DESC is subject to this Decision is to avoid interfering with the objectives of the public health officer. DESC forfeited its right to advocate its own interests by failing to make a timely request for hearing. In lieu of being subjected to the terms of this Decision, DESC can also elect to be subject to the corrective actions of the FOV, since DESC could have chosen that result by simply not requesting participation in this appeal. DESC will have to cease operations within 60 days of this decision if it chooses to be subject to the FOV. Presumably, DESC will elect to be bound by the terms of this Decision. If it chooses to be bound by the FOV instead, it should submit a written letter to the City of Renton to that effect within 14 calendar days of this Decision. 8. County, RHI and DESC Need Business License. All parties named in the Finding of Violation are in violation of RMC 5-5-3 for failure to have a busines license. 6 The examiner asked the hearing parties at this point if any party had an objection to DESC counsel’s appearance and no objections were made. This waiver of objection could conceivably be construed as a waiver of any objection to DESC active participation and hearing examiner jurisdiction over DESC However, Renton clearly and unequivocally argued in its prehearing brief that the FOV should be final as to DESC. If the FOV is final as to DESC, the examiner has no jurisdiction over DESC since his jurisdiction is limited to assessing the validity of FOV terms. Given the City’s prehearing brief position and no suggestion of withdrawing from it. Renton’s waiver of any objection to DESC’s appearance is not construed as a waiver of Renton’s position that the FOV is final as to DESC. Renton’s waiver is limited to not objecting to DESC’s presence in the virtual hearing on the FOV. Final Decision PAGE 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 RMC 5-5-3A1 requires all “persons” to have a business license when engaging in business. RMC 5-5-2U defines person to include companies and municipal corporations. RHI qualifies as a company and King County and DESC qualify as municipal corporations. RMC 5-5-2N defines “business” as “[a]ll activities engaged in with the purpose of gain, benefit, or advantage to the taxpayer or to another person or class, directly or indirectly.” RHI, King County and DESC are all engaged in business because RHI operates its facility as deintensification center for the purpose of gain and King County and DESC provide social services to the homeless for the purpose of benefit to the homeless. As determined in Finding of Fact No. 11, none of the Appellants currently have a business license to operate the shelter. RHI has a business license to operate a hotel, but as determined in this Decision, the shelter is not a hotel. Since all Appellants qualify as persons engaging in business within the City of Renton, they are all in violation of RMCW 5-5-3A1 for failure to have a business license. King County argued at the appeal hearing that there should be an implied exception for government agencies. As identified in RMC 5-5-1, the purpose of the busines license chapter is to license for revenue and regulation. Business licenses provide an opportunity for the City to ascertain whether the “business” conducted by an applicant conforms to City regulations. The regulatory function of the business license requirements is belied by RMC 5-5-3B2a, which exempts businesses from registration fees if annual income is less than $2,000. A timely application submitted by King County and DESC would have given the City notice of the anticipated deintensification shelter before it was initiated, giving the City an opportunity to work out zoning issues with the responsible parties in advance. There is no basis for implying an exemption to nonprofit or government agencies from the City’s business license requirements. 9. ADA/Rehabilitation Act Issues Not Ripe for Review. Since this Decision requires the additional step of requiring an unclassified use permit, it is premature to do any detailed analysis of the American with Disability Act (“ADA”) and the Rehabilitation Act arguments made by RHI. If the City determines in its assessment that given the terms of this Decision the deintensification shelter is permitted outright in the CA zone, then there will be no question of noncompliance. If a conditional use permit is required or the City maintains the position that the CA zone is not appropriate for an unclassified use, then further ADA/Rehabilitation Act analysis would be appropriate at that point. To the extent that any reasonable accommodation is necessary in the issuance of this Decision, that is provided. The deintensification shelter will be authorized to operate while the unclassified use permit issues are further worked out with the City. Decision King County, RHI and/or the Downtown Emergency Service Center (DESC) are required to either vacate the Red Lion site within 60 days or apply for an unclassified Final Decision PAGE 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 use interpretation within 21 calendar days7 of the date of this decision. If they apply for an unclassified use interpretation and that interpretation approves use of the current location coupled with a requirement or a conditional use permit, application for the conditional use permit shall be made within 21 days of issuance of the unclassified use interpretation. The Appellants shall vacate the RHI site within 60 days of denial of the unclassified use or conditional use permits. King County, RHI and DESC shall file for a complete business license application within 30 days of the resolution of this appeal if they are still allowed to operate a deintensification shelter within the City of Renton. King County and DESC may continue to operate the deintensification shelter during the review of the unclassified use and conditional use permits. ORDERED this 31st day of August 2020. City of Renton Hearing Examiner Appeal and Reconsideration This Decision is a final decision of the City of Renton and is subject to appeal to superior court as governed by the Washington State Land Use Petition Act, Chapter 36.70C RCW. A request for reconsideration to the hearing examiner may also be filed within this 14-day appeal period. 7 As detailed in Conclusion No. 7, DESC has the option of being bound to the corrective action of the FOV in lieu of conforming to the requirements of this Decision.