HomeMy WebLinkAboutItem 20 - 08-12-2020 - COR - Brief in ResponseITEM NO. 20
HEX-000161
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 1 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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IN PROCEEDINGS BEFORE THE CITY OF RENTON HEARING EXAMINER
IN RE THE MATTER OF THE REQUEST FOR
HEARING BY RENTON HOTEL INVESTORS, LLC
AND KING COUNTY
NO. CODE-20-000321
CITY OF RENTON’S BRIEF IN RESPONSE TO
KING COUNTY’S HEARING BRIEF AND
RENTON HOTEL INVESTORS, LLC’S OPENING
BRIEF REGARDING RED LION DE-
INTENSIFICATION SHELTER FINDING OF
VIOLATION
I. INTRODUCTION
The City of Renton (“City”) provides this brief in response to the briefs submitted by King
County and RHI1 on August 5, 2020 in this matter. The City also responds to the August 12,
2020 Second Declaration of Daniel Malone.
II. EVIDENCE RELIED UPON
The City relies on the witness testimony and other documentary evidence disclosed in
and produced with the City’s August 5, 2020 and August 12, 2020 witness and exhibit lists. The
1 Capitalized terms not defined in this brief are defined in the City’s opening brief filed on August 5, 2020.
HEX-000162
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 2 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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City reserves the right to further rely on witness testimony and documentary evidence
disclosed in and produced with King County’s and with RHI’s August 12, 2020 disclosures.
III. RESPONSE TO THE BRIEF OF KING COUNTY
A. Introduction.
Local Health Official Jeff Duchin’s Local Health Officer Order “authorized” the County
and local cities and towns only to use “legally available resources” to de-intensify homelessness
shelters. COR 3, Attachments A and B. The order explicitly prohibited “illegal means or
behavior” to accomplish this goal. Id. The Local Health Officer Order does not preempt City
laws, nor would Dr. Duchin have the authority to in the current circumstances.
Violation of City zoning and business license ordinances constitutes illegal behavior.
RMC 1-3-1, 4-1-110.A, and 5-5-3.E.5. The violations are in fact punishable as crimes, but to this
point the City has merely sought to exercise its remedial remedies in hope of achieving
voluntary compliance with its laws while giving King County and DESC opportunity to seek out
alternative arrangements for their shelter residents. Nevertheless, King County construes the
Local Health Officer Order as a free pass for it and its contractors to indefinitely violate any laws
that King County deems inconvenient or standing in the way of the least costly solution
available to King County.
Even accepting for the sake of argument that the unilateral, unpermitted conversion in
April of the Property from a Hotel land use to what King County terms a “congregate shelter”
was necessitated by public health justifications, the question before the Hearing Examiner is
whether the current land use and current lack of business licenses constitute violations of City
laws. They do.
HEX-000163
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 3 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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B. DESC’s “Congregate Shelter” Is Not a Hotel Land Use.
As detailed in the City’s Opening Brief, a Hotel land use’s primary function is rental as a
place to sleep to transient members of the general public, who have a different primary home,
for periods of not more than 30 days. And see RMC 4-5-050.A (adopting the International
Building Code which, at its Section 202, defines “Transient” as “Occupancy of a dwelling unit or
sleeping unit for not more than 30 days”).
King County and RHI insist the current shelter use is consistent with such Hotel land use
because RHI and other hotel owners have occasionally rented rooms out for more than 30 days.
Even assuming that assertion is true, that situation is very different from how the Persons in
Control are using the Property.
Occasionally renting a few rooms out for more than 30 days is not something that the
City would have reason to know about, and to the extent it was happening on an infrequent
basis in only a small portion of a property, it is possible such use would be considered an
allowed accessory use to a Hotel use pursuant to the process in RMC 4-2-050.C.4. However,
here, converting the entire Property indefinitely to a long-term (first 90-day, then indefinitely
month-to-month after that at King County’s sole discretion) single tenant rental for use as a
congregate shelter” cannot reasonably be construed to retain the Hotel land use.
C. The Persons in Control Are Not Exempt From City Business Licensing.
King County argues that the de-intensification shelter is exempt from City business
licensing requirements because neither DESC nor King County is a “business entity,” citing
RMC 5-5-1.C.” King County Brief, p. 13. King County is citing City code language that does not
exist; RMC 5-5-2 (Definitions) does not include “business entity” among its defined terms, and
HEX-000164
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 4 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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there is no “RMC 5-5-1.C.”2 Instead, RMC 5-5-3.A.1 requires each “person” who is “engaged in
business” to hold a valid City business license, and both King County and DESC meet these
definitions:
A “person” means “any individual, receiver, administrator, executor, assignee,
trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club,
company, joint stock company, business trust, municipal corporation, political
subdivision of the State of Washington, corporation, limited liability company,
association, society, or any group of individuals acting as a unit, whether mutual,
cooperative, fraternal, non-profit, or otherwise and the United States of America or
any of its instrumentalities.” RMC 5-5-2.U (emphasis added).
Engaged in business” means, among other things, simply engaged in “business”
which is defined as “All activities engaged in with the purpose of gain, benefit, or
advantage to the taxpayer or to another person or class, directly or indirectly.” See
RMC 5-5-2.N and 5-5-2.D (emphasis added).
A City business license is required.
D. The Local Health Officer Order Does Not Preempt City Zoning and Business
License Laws, And Any Such Future Preemption Attempt Would Fail Because The Local Health
Officer Does Not Have Authority Over Local Zoning And Licensing Laws.
King County implies that it acquired and operates the Property as a congregate shelter
pursuant to an “order” to do so by a Local Public Health Official Order. However, the Local
Health Officer Order did not require the acquisition of the Red Lion Hotel & Conference Center.
It did not even require de-intensification of shelters. It merely “authorized” the County (and
the City) to use legal means to attempt to do so. See Local Health Officer Order (COR 3,
Attachments A and B).
2 The City – and every other city in Washington that has a business licensing program – was required to update its
business licensing ordinance in accordance with the “model ordinance on general business license requirements”
developed pursuant to chapter 35.90 RCW.
HEX-000165
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 5 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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On its face, the Local Health Officer Order did not attempt to preempt the application of
any law. Even had Dr. Duchin attempted to assert such preemptive authority, such assertion
would be ineffective. The City and County each have broad powers constitutionally granted to
them. Article XI, section 11 of the Washington Constitution provides that a city “may make and
enforce within its limits all such local police, sanitary and other regulations as are not in conflict
with general laws.”
A state statute preempts a local ordinance only if the statute occupies the field, leaving
no room for concurrent jurisdiction (“field preemption”), or if a conflict exists such that the
statute and ordinance may not be harmonized (“conflict preemption”). Brown v. City of
Yakima, 116 Wn.2d 556, 807 P.2d 353 (1991).
King County asserts that the City’s zoning laws are preempted without citing to which
statute allegedly preempts the City’s authority. King County cites generically to statutes,
regulations, and cases conferring powers to local health officers and health boards, but the City
does not dispute that those statutes are in effect and that Dr. Duchin has some authority; the
City disputes any such authority has operated to preempt the City’s laws. King County does not
explain which of the two preemption theories it relies on: field preemption or conflict
preemption. Below, the City explains that its laws are not preempted under either theory.
1. There is no field preemption of the City’s zoning and licensing laws.
A statute preempts the field and invalidates a local ordinance on the same subject if
there is an express legislative intent to preempt the field or such intent is necessarily implied.
Brown, 116 Wn.2d at 560. The local health official derives authority and powers from RCW
70. 05.070. Although that statute is broad, it contains no express or implied intent to preempt
local zoning and business licensing authority. Without so much as a reference to such matters
HEX-000166
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 6 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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of local concern, RCW 70.05.070 cannot be read to expressly or impliedly occupy the field of
zoning and licensing regulation. Local health officers undisputedly have powers to control and
prevent the spread of contagious disease; however, those powers do not and should not be
read to authorize blanket violation of all other (or any) substantive local laws, including the
City’s zoning and licensing laws.
A review of field preemption might be pertinent if both the City and King County were
regulating the same subject – the spread of contagious disease. But here, the City is not in any
way attempting to regulate the spread of contagious disease. It is merely exercising its
independent constitutional authority to enforce its zoning and licensing laws.
2. There is no conflict preemption of the City’s zoning and licensing laws.
Conflict preemption arises only if a local ordinance directly and irreconcilably conflicts
with a state statute such that the two cannot be harmonized. Emerald Enters., LLC v. Clark Cty.,
2 Wn. App. 2d 794, 814, 413 P.3d 92 (2018). Absent clear legislative intent to the contrary, one
municipality must comply with the local ordinances of another municipality. Everett v.
Snohomish County, 112 Wn.2d 433, 440-41, 772 P.2d 992 (2004). “[Z]oning ordinances of one
subunit of government do not necessarily conflict with another governmental subunit's
authority to condemn; reasonable zoning ordinances limit but do not necessarily eliminate
another governmental subunit's power to locate its facilities through its eminent domain
power.” 112 Wn.2d at 444. This is likely why Dr. Duchin has not issued any order purporting to
expressly preempt the City’s zoning.
Here, the City’s zoning and licensing laws neither directly nor irreconcilably conflict with
either RCW 70. 05.070 or the Local Health Officer Order “authorizing” the de-intensification of
shelters by lawful means. The Local Health Officer Order and City laws can easily be
HEX-000167
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 7 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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harmonized: as explained in the City’s Opening Brief, the shelter could have been originally
established in (and can be moved now to) zones in the City that allow “congregate residences”
or “diversion facilities” or “diversion interim service facilities.” In fact, the City’s purpose of
issuing the FOV and seeking minimal fines is to ensure that King County and DESC expend their
limited resources (including available federal funds) on a long-term legal solution to providing
shelter de-intensification for the duration of the COVID-19 emergency.
3. King County’s cited cases do not support its position that the City’s laws are
preempted.
None of the preemption cases cited by King County support a finding that the City’s
zoning and licensing laws are preempted. In each of the cases, the local health officer’s
underlying order specifically required the underlying challenged act (inapposite to the facts
here), and none of the cases held that a county had preemption authority over a city’s
constitutional authority to regulate businesses and land uses.
In McBride v. Superior Court, 103 Wash. 409, 174 P. 973 (1918), the only issue of
preemption was whether the state’s creation of a state board of health preempted Seattle’s
concurrent regulation of public health. McBride, 103 Wash. at 416. The Court found no
preemption.
In Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 839 P.2d 324(1992), there
was a challenge to Spokane County Health District’s needle exchange program, which it
adopted to halt the spread of HIV. The challengers claimed the needle exchange program
conflicted with the state’s prohibition on the transfer of drug paraphernalia. 120 Wn.2d at 148.
But the Court found the prohibition on transfer of drug paraphernalia was not intended to
prohibit a needle exchange program, because the legislature separately explicitly authorized
HEX-000168
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 8 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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the handling and return of needles through needle sterilization programs. Id., at 150-52.3 Thus,
Brockett does not support the County’s contention that it is authorized to violate applicable
zoning and licensing laws. Rather, it is yet another example of a court (and, in Brockett, it was
the Washington Supreme Court) being unwilling to find the existence of conflict preemption to
override a local jurisdiction’s authority to regulate matters of local concern.
In conclusion, the City does not dispute the need for and value in de-intensifying
homeless shelters. It contests the fact that King County chose and continues to choose to
violate City laws in doing so. The Local Health Officer Order’s ban on using “illegal means” and
authorization of de-intensification of shelters by using only “legally available resources” cannot
be read to require or permit the ongoing and indefinite violation of City laws.4
E. King County’s Arguments About Preemption Distract From The Fact That King
County Established The De-Intensification Shelter At The Property For Financial And
Convenience Reasons.
The City does not dispute the importance that social distancing plays in reducing the
spread of COVID-19 in shelters, and the City supports King County’s desire to provide such
social distancing as long as the community spread of COVID-19 poses an emergency threat to
3 King County falsely claims the Brockett Court held the “constitutional grant of authority to local health officials to
make and enforce rules and regulations may prevail over other statutes, so long as the local regulations do not
conflict with other public health statutes.” King County’s Hearing Brief, p. 9. The Court specifically found that the
local health officials in that case were acting pursuant to statutory authority, not constitutional authority.
Brockett, 120 Wn.2d at 148. Moreover, it did not hold the local health official’s authority preempted a state
statute. It found that the state legislature’s express authorization of needle sterilization programs indicated a
legislative intent that the prohibition on transfer of drug paraphernalia did not apply to such programs. Id.
4 King County relies upon a King County court judge’s denial of a preliminary injunction enjoining King County’s
location of a quarantine and isolation facility in a motel purchased by King County. See exhibit marked KC009,
Attachment A. The County correctly notes that such court order has no precedential value, but insists it is
persuasive in this matter. It is not. The March 24 court order that King County relies on predates the March 31
Local Health Officer Order that is now at issue, merely denied a preliminary injunction, and does not make a ruling
on the ultimate merit of the case.
HEX-000169
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 9 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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public health. The City even temporarily refrained from enforcement of its zoning and business
license laws to give King County an opportunity to search for a legally available site where the
de-intensification shelter could be relocated. However, the briefing and arguments by King
County evidence now that it had and presumably still has other options for de-intensifying the
DESC shelters. Its reason for not pursuing those options is simply that doing so would be
expensive and/or inconvenient. COR 21 ¶¶17, 20, and 21 (Amended Declaration of Leo Flor).
1. King County selected the Property because it was inexpensive.
The record reveals that at the time of King County’s search for locations in March and
April, the Red Lion Hotel & Conference Center was allegedly the only location that could serve
200 shelter residents, at a lease rate that King County was willing to pay. COR 21, ¶¶22-24.
Notably, King County admits it had options to buy and/or lease – apparently just not at the
price it wanted to pay or with over 200 rooms available. COR 17, ¶¶ 10, 19, 24, and 26
Declaration of Bryan Hague). The unspecified cost differences of King County’s other options
certainly should not support a finding of preemption or irreconcilable conflict. Indeed, King
County was awarded $530 million in federal Coronavirus Aid, Relief, and Economic Security
CARES) Act funding, and as of June 30, 2020, the County Council had allocated just $181.1
million of those funds. COR 16 (Second Declaration of Leslie Clark), Exh. A (King County’s
COVID-19 Response and Recovery Funding website).
King County’s focus on providing the lowest cost location is not a legal excuse for
violating the City’s laws.
2. King County selected the Property because it was convenient.
King County also admits that it selected the Property for its convenience. The County
indicates there were other affordable options with less capacity (100 rooms rather than the
HEX-000170
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 10 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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Property’s 200+), but King County apparently chose not to even explore those options. COR 17,
25-26. King County asserts that having the shelter residents split between multiple locations
would be inconvenient or impracticable because DESC lacked staffing in April to move staff to
multiple locations. See COR 21, ¶¶17, 20, and 21.
King County also claims that some property owners were “entirely disinterested in
leasing and hoped to sell their properties” or not willing to rent to sick or homeless people, so it
was convenient to lease the Property from willing RHI. COR 17, ¶¶19, 20, and 27. Even if every
other property owner in King County refused to contract – which King County does not assert –
that would not mean that King County had no option other than to violate the City’s zoning
laws. Indeed, King County emphasizes in its Brief that it holds the power of eminent domain to
appropriate private property. King County’s Hearing Brief, p.8 (citing Brown v. Pierce County, 28
Wn. 345, 68 P. 872 (1902)). The fact that King County can exercise its independent powers of
eminent domain does not mean that it (or its contractors) can disregard the City’s applicable
zoning and licensing laws. Preemption was not even at issue in the Brown case cited by King
County.
3. King County’s financial and convenience-based choices do not excuse its
violation of City laws.
The focus in King County’s briefing and declarations on the financial and convenience-
based choices made in April ignores the fact that it is now August; months have passed. King
County has had time to make funding choices to facilitate moving the shelter to one or more
legally available locations. King County could have hired additional staff – seemingly a very
beneficial thing to do during times of record unemployment and need for economic investment
in new jobs – with CARES Act funding to pay for them.
HEX-000171
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 11 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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In addition, contrary to King County’s assertions otherwise, the existence of more costly
and less convenient options simply does not mean that the City’s zoning and licensing laws
irreconcilably conflict with the state-granted authority of the public health official. If the state
legislature had intended to charge local health officials with the authority to preempt
applicable local zoning laws, the legislature would have done so. The legislature knows how to
provide the authority to waive or supersede other applicable laws when it wants to.
The state legislature has granted the governor, the state’s highest ranking elected state
official, with authority in emergencies to waive, suspend, or rescind statutory obligations and
regulations. RCW 43.06.220(2)(g). Even that authority is limited to waivers lasting no more
than 30 days without concurrence from the state legislature. RCW 43.06.220(4). It is
inconceivable that the legislature would expressly limit the authority of the governor to waive
applicable laws in an emergency, but impliedly grant an unelected local health official with
unbridled and unchecked power to disregard local laws and regulations for as long as that
official deems cheap and convenient. Under the maxim unius est exclusio alterious, and the
above-cited holding in Snohomish County, 112 Wn.2d at 440-41, the proper interpretation is
that a county official cannot suspend or waive application of lawfully adopted code provisions
of a city. See State v. Swanson, 116 Wn. App. 67, 76, 65 P.3d 343 (2003) (holding that omitted
language from the one statute, but not another, is intentional and not a legislative oversight).
F. The City’s Code Enforcement Efforts Urge King County To Take Action In The
Best Interests of The Shelter Residents.
The City’s purpose in issuing the FOV and assessing fines is not to force the shelter
residents back on the street or even back to their previous congregate shelter in Seattle. The
Persons in Control forced the City’s formal code enforcement through their refusal to take
HEX-000172
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 12 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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action to move the shelter to one or more locations where the shelter residents can locate
legally without the uncertainty of being forced back into their previous living conditions.
The Persons in Control emphasize in declarations how poor their residents’ living
conditions were at their previous shelters; the City has no reason to dispute the asserted
improvements in living conditions. At their previous shelters, residents were unable to achieve
a good night sleep and violence was common. COR 18, ¶17 (Declaration of Nancy Sugg). Beds
at previous shelters consisted of a mat or cot, placed inches apart from other residents. Shelter
residents lacked access to showers, clean clothes, basic hygiene, and accessible bathrooms. Id.,
at ¶15. Shelter residents lacked places they could go during the day. Id., at ¶16. Shelter
residents lacked basic medical care. Id., at ¶18. Shelter residents had difficulty finding three
meals a day. Id., at ¶19. Shelter residents were grouped with others who use drugs and
alcohol, making it more difficult for residents to remain clean and sober. Id., at ¶21.
The purported improvements for these residents is quite remarkable. With improved
living conditions, residents no longer have frequent skin problems, infections, or abscesses.
COR 19, ¶¶31-32 (Declaration of Sam McKnight). Fights and chaos are reduced, moods are
improved, medical care and health is improved, personal crises are reduced, and a desire to
cooperate in care and participate in housing appointments is increased. Id. at ¶¶8-14, 23, 25,
27, and 28. The conditions are also apparently better for DESC staff. Id. at ¶¶18, 21-23.
These apparent improvements are not attributable to COVID-19. They are attributable
to humane treatment of human beings who are facing challenges in life completely unrelated
to COVID-19. The improvements reflect the need for long-term housing options for residents –
not a return to previous cramped, unhealthy conditions that bred rather than treated
problems. The shelter should be relocated where the underlying land use is legal and can
HEX-000173
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 13 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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continue – during and then beyond the COVID-19 emergency. The CA-zoned Property is not
that location.
The City’s sincere hope is that King County will see that long-term need and spend its
CARES Act funding to help relocate DESC to a legally zoned location where the shelter could
continue for a longer period of time while even more permanent housing is found. Deep
rooted problems for the shelter residents will not be solved during the pandemic, and the crime
data in the City shows that those challenges have not gone away. However, relocating to a
location where the residents will not be forced back to the streets or inadequate shelter at the
end of the pandemic provides a much higher likelihood that the shelter residents can
successfully transition to less chaotic lives for the long-term and avoid a return to the streets.
Unfortunately, to date, King County has been unwilling to recognize that reality through
the City’s efforts to gain voluntary code compliance. The City asks the Hearing Examiner to
uphold the FOV and impose daily fines as a necessary means to more directly encourage King
County to do the right thing for the DESC residents.
IV. RESPONSE TO THE BRIEF OF RENTON HOTEL INVESTORS, LLC
A. Introduction.
RHI baldly asserts that the City is “targeting” the de-intensification shelter because of
the disabilities of its residents. RHI Brief, p. 4. Not until after the issuance of the FOV did RHI
affirmatively assert to the City that any of the 200-plus residents of the de-intensification
shelter are disabled under the Americans with Disabilities Act (“ADA”) and the Rehabilitation
Act; the same is true of King County; the same is true of DESC.
Assuming merely for the sake of argument that every one of the de-intensification
shelter’s residents has a disability, there is no evidence anywhere in the record that the City
HEX-000174
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 14 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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took enforcement action against the de-intensification shelter because it houses a disabled
population. The City took enforcement action because the use is a large residential use in a
zoning district that does not allow any type of large residential use, whether for those with
disabilities or those without disabilities. In other words, the City would have taken the same
enforcement action if not one of the de-intensification shelter’s residents had a disability.
B. By Offering Broad Arguments Rather Than Specific Analysis, RHI Assumes
Discrimination Because The Shelter Residents Have Disabilities. More Is Required To Prove
Discrimination, And There Is No Discrimination Here.
RHI begins by arguing broadly that the ADA and the Rehabilitation Act apply to city
zoning laws. RHI Brief, p. 2. That does not help RHI; the City agrees with that general
proposition, and a statement of a truism proves nothing about what was done or not done
here. RHI fails to recognize that ADA case law regarding zoning decisions also repeatedly
reminds that cities have a fundamental interest in achieving their zoning goals. “[A] city's
interest in achieving its zoning goals has long been recognized as a legitimate governmental
interest.” Budnick v. Town of Carefree, 518 F.3d 1109, 1116-17 (9th Cir. 2008) (holding that
there was no disability discrimination in a city’s decision to not approve a multi-level,
continuing care retirement community in a zone in which it was not allowed).
Next, RHI broadly argues that “there can be no serious dispute that the ADA and
Rehabilitation Act protect the population at issue in this case.” RHI Brief, at p. 3. Although the
City concurs that courts have found that persons recovering from substance abuse and
suffering from alcoholism are disabled under the ADA and Rehabilitation Act, neither King
County nor DESC has ever described the de-intensification shelter as a treatment center.
Rather, the Persons in Control have consistently characterized the de-intensification shelter
simply as a place for persons experiencing homelessness to be sheltered during the pandemic.
HEX-000175
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 15 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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See COR 20, ¶¶ 8 and 48 (Amended Declaration of Daniel Malone) and COR 21, ¶¶ 10 and 24.
Although King County asserted generically that people experiencing homelessness are
medically vulnerable and have higher rates of disability than the general public, DESC has not
asserted that any of the shelter residents suffer from a disability, as that term is defined under
the ADA or the Rehabilitation Act, or requested accommodations thereunder. It is only RHI
who implies that all persons experiencing homelessness have drug and alcohol problems.
Moreover, although ADA and Rehabilitation Act protections apply to persons recovering
from illegal substance abuse addiction, those protections do not apply to active users of illegal
substances. James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012) (“[T]he ADA also
provides that "the term 'individual with a disability' does not include an individual who is
currently engaging in the illegal use of drugs”). Here, DESC’s model of offering the “lowest-
barrier shelters in the region” means that the de-intensification shelter merely “discourages”
substance abuse by shelter residents. COR 11, Exh. F; COR 11, Exh. C (Renton Red Lion
Operations Plan, Q&A 2). Contrast Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 48
2d Cir. 1997) (finding that an outpatient drug and alcohol rehabilitation treatment center had
been discriminatorily banned, the court chided the city because the program at issue
indisputably does not tolerate drug use by its participants”).
Nevertheless, the factual resolution of whether some, all, or none of the de-
intensification shelter residents have disabilities is not material to the resolution of the FOV
because – even assuming for the sake of argument that the shelter residents have disabilities –
the City has not engaged in any disability discrimination.
HEX-000176
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 16 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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1. There is no “per se” discrimination.
RHI asserts that the City’s actions constitute “per se violations” of the ADA and the
Rehabilitation Act. RHI Brief, p. 3. However, only “facially discriminatory laws present per se
violations [of the ADA].” Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179
F.3d 725, 735 (9th Cir. 1999). Here, the City’s zoning laws and the FOV are facially neutral.
As to the City’s zoning laws, the land uses recognized by the Renton Municipal Code to
which the de-intensification shelter is analogous – congregate residence, diversion facility, and
diversion interim service facility – are all defined in such a way that they could house persons
with disabilities or persons without disabilities. See RMC 4-11-030 (broad “congregate
residence” definition could offer housing to persons with disabilities or to persons without
disabilities); and see RMC 4-11-040 (“diversion facility” and “diversion interim service facility”
definitions anticipate housing for active users of illegal chemical substances (not qualified as
disabled”) but also anticipate housing for persons with mental illness (qualified as “disabled”)).
These three uses are all prohibited in the CA zone irrespective of whether a particular instance
of such use houses persons with disabilities or persons without disabilities. See RMC 4-2-060
zoning use table). Contrast with Innovative Health Sys., 117 F.3d at 49, in which there were
similar uses in the same district” that the City of White Plains had allowed, contributing to the
court’s finding of discrimination. And see COR 14, ¶8 (Second Declaration of Vanessa Dolbee)
explaining that the City has not allowed uses similar to the de-intensification shelter to operate
in the CA zone).
As to the FOV, it is also facially neutral. See COR 1. The FOV emphasizes that the de-
intensification shelter does not meet the scope of a Hotel land use because the shelter
residents reside at the Property; the FOV makes no reference to the shelter housing persons
HEX-000177
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 17 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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with disabilities, and the City did not issue the FOV for that reason. See COR 15, ¶¶4-6 (Second
Declaration of Donna Locher) (explaining that the City did not enforce against the de-
intensification shelter while refraining from enforcing against similar uses; there have been no
similar uses).
2. No discrimination under theories of disparate treatment or disparate impact.
RHI does not assert discrimination under a disparate treatment or disparate impact
theory, but the City anticipates that one of the Persons in Control could raise these theories at
hearing so resolves them here.
To prove disparate treatment on the basis of disability, the Persons in Control must
produce direct or circumstantial evidence demonstrating that a discriminatory reason more
likely than not motivated” the City. Pacific Shores Props., LLC v. City of Newport Beach, 730 F.3d
1142, 1158 (9th Cir. 2013). Here, RHI did not offer any evidence of a discriminatory motive on
the part of the City; RHI’s conclusory statement that the City “targeted” the de-intensification
shelter is absent any substantiation. Even if the record could be read to support circumstantial
evidence of possible discriminatory motive, the record is replete with evidence of the City’s
neutral motivation to relocate a large residential use outside of a zoning district that prohibits
large residential uses.
To prevail on a claim of disparate impact on the basis of disability, the Persons in Control
must offer data or statistics showing that the application of the City’s zoning laws and
enforcement practices have a disproportionate effect on persons with disabilities. See Budnick,
518 F.3d at 1118 (analyzing disparate impact in a Fair Housing Act context). Here, the City’s
enforcement actions urging King County to relocate the de-intensification shelter to a location
that allows large residential uses has an equal effect on shelter residents with disabilities and
HEX-000178
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 18 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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those without; the actions equally encourage King County to reestablish the use where the
shelter residents have the assurance that they can reside in the facility through and beyond the
duration of the COVID-19 emergency.
3. The City did not fail to reasonably accommodate.
RHI does not directly assert that the City failed to reasonably accommodate, but – again
the City anticipates that the argument could be raised at hearing so resolves it here.
The City did not fail to reasonably accommodate the de-intensification shelter when the
City took enforcement action. Notably, none of the Persons in Control had ever requested an
accommodation to allow the de-intensification shelter to operate in the CA zone. In fact, they
did not make affirmative assertions of disability until RHI submitted its August 5, 2020 brief,
when it was strategic to do so in opposition to the FOV.
Even if the Persons in Control had sought an accommodation, the City could have
denied the request without violating the ADA or Rehabilitation Act. In the context of a city’s
zoning laws, a reasonable accommodation for a use variance is “required only if it is necessary
to avoid discrimination. That an alteration in zoning rules would be convenient or helpful to a
plaintiff does not make the change necessary.” See Wisconsin Cmty. Servs. v. City of
Milwaukee, 465 F.3d 737, 756 (7th Cir. 2006) (Easterbrook, J., concurring). Critically, when the
proposed use at issue would not be allowed in the requested location regardless of whether it
would house persons with disabilities or persons without disabilities, there is no failure to
accommodate:
We agree with the district court that if a building permit would not be granted
even for comparable "traditional" residences (that is, residences where persons
without disabilities can live) in the relevant area, a municipality is not required to
make accommodations that would facilitate a building permit for housing
designed for the disabled.
HEX-000179
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 19 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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Forest City Daly Hous., Inc. v. Town of N. Hempsted, 175 F.3d 144, 152 (2d Cir. 1999) (affirming
the district court’s holding that a town had not discriminated when it did not issue a permit for
an assisted living facility on land zoned for commercial uses only). Just as in Forest City Daly
Housing, here, the large residential use at issue would not be allowed in the CA zone whether
the de-intensification shelter residents have disabilities or do not have disabilities.
Finally, although King County has now explained that it chose the Property in part
because it was relatively cheap, an accommodation to make a project “financially feasible” does
not qualify as a reasonable accommodation. Nikolich v. Arlington Heights, 870 F. Supp. 2d 556,
565 (N.D. Ill. 2012).
V. RESPONSE TO THE AUGUST 12, 2020 “SECOND DECLARATION OF DANIEL MALONE”
AND ACCOMPANYING NOTICE OF APPEARANCE
On August 12, 2020, DESC Director Daniel Malone filed a “Second Declaration of Daniel
Malone” because “[t]he City of Renton makes two arguments in its opening brief that I would
like to respond to.” Second Decl. of Malone, ¶2.
First, Mr. Malone requests that the FOV not be considered final as to DESC because
although (1) he admits that DESC chose not to request a hearing (2) DESC coordinated with King
County and chose to have King County’s work in this matter cover DESC’s position. See id., ¶¶3,
4. DESC should live with its choice to rely on King County. Mr. Malone admits that he was
fully involved” in the City’s, King County’s, and RHI’s discussions to reach the hearing
stipulation in this matter. Id., ¶7. That stipulation set August 5, 2020 as the deadline for the
parties to file opening briefs. See Prehearing Order attaching the stipulation. DESC could have
chosen to file a brief then, but it participated in the August 5 deadline by filing only an
Amended Declaration of Daniel Malone.” In a matter that the parties expressly elected to be
decided by written testimony only (see Prehearing Order), DESC has testified three times
HEX-000180
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 20 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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through the Declaration of Daniel Malone (COR 2), the Amended Declaration of Daniel Malone
COR 20), and now the Second Declaration of Daniel Malone. Whether the FOV is final as to
DESC is to be decided by the Hearing Examiner (as the City noted in its Opening Brief at Part
IV.C), but it is undisputed that DESC has been allowed to testify in this matter despite its
admitted choice to not request a hearing.
Second, Mr. Malone offers that the de-intensification shelter at the Property is a
temporary shelter, not a permanent residence, and our mission is to find permanent housing
for our main shelter clients.” Second Decl. of Malone, ¶7. As briefed above, the City supports
this mission, but that does not change the fact that the de-intensification shelter is not a Hotel
land use and constitutes a large residential use in a zone that does not allow large residential
uses, in violation of City laws.
VI. CONCLUSION
For the reasons set forth above, the City respectfully requests that the Hearing
Examiner, acting on designation on behalf of the CED Administrator, issue a final determination
that the Red Lion Shelter (1) is a land use not allowed in the CA zoning designation; (2) operates
without a Renton business license contrary to RMC 5-5-3.E.5; and (3) will accrue fines.
Respectfully submitted this 12th day of August, 2020.
By: /s/ Shane Moloney
Shane Moloney
City Attorney
City of Renton
Attachment:
Declaration of Service
HEX-000181
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 21 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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DECLARATION OF SERVICE
I declare under penalty of perjury under the laws of the State of Washington that on
August 12, 2020, a true and correct copy of the foregoing document was served upon the parties
listed below via the method indicated:
Renton Hotel Investors, LLC:
Sumeer Singla
Williams, Kastner & Gibbs PLLC
ssingla@williamskastner.com
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King County:
Howard Schneiderman
Senior Deputy Prosecuting Attorney
Howard.Schneiderman@kingcounty.gov
Youn-Jung Kim
Deputy Prosecuting Attorney
Jina.Kim@kingcounty.gov
Lena Madden
Deputy Prosecuting Attorney
Lena.Madden@kingcounty.gov
X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service
HEX-000182
CITY’S RESPONSE TO THE BRIEFS OF KING COUNTY AND
RENTON HOTEL INVESTORS, LLC – Page 22 Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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DESC:
Daniel Malone
Downtown Emergency Service Center (DESC)
dmalone@desc.org
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DATED this 12th day of August, 2020, at Maple Valley, Washington.
s/ Stephanie Rary
Stephanie Rary, Paralegal
With a copy to:
Elaine L. Spencer, WSBA #6963
Northwest Resource Law PLLC
espencer@nwresourcelaw.com
Lisa Chaiet Rahman, WSBA #51531
Northwest Resource Law PLLC
lrahman@nwresourcelaw.com
X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service
HEX-000183