HomeMy WebLinkAboutD_HEX Decision_Aristo_CU_2112281
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CONDITIONAL USE - 1
CAO VARIANCE - 1
BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Aristo Healthcare Services
Conditional Use
LUA21-000345, ECF, CU-H
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FINAL DECISION
Summary
Aristo Healthcare Services requests approval of a conditional use permit to operate an Intensive
Behavioral Health Treatment Facility (IBHTF) in an existing building at 95 S Tobin St. The
application is approved with conditions. The application is approved subject to conditions.
Testimony
Clark Close, City of Renton Senior Planner, summarized the proposal. In response to Examiner
questions Mr. Clark stated that the use is not expressly authorized in any zoning district and that the
appeal period has expired on the staff’s unclassified use determination.
Mr. Droze, Applicant representative, noted that IBHTF are specifically authorized under state law
under the Community Behavioral Health Services Act, codified under Chapter 71.24 RCW. The
purpose of the Act is to provide a network of community behavioral health clinics across the state
that help persons experiencing mental illness or substance abuse disorders to overcome their illnesses
and reintegrate as productive citizens. IBHTFs are community based specialized residential
treatment facilities for people who have impairment but whose impairment don’t meet the criteria for
involuntary in-patient commitment. The facilities exist to enable residents to recover, rehabilitate and
reintegrate into society. They reduce the potential for unnecessary hospitalizations and
imprisonments and reduce the strain in existing health care and penal systems. The Aristo project
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CONDITIONAL USE - 2
CAO VARIANCE - 2
serves as a transition facility for persons transitioning out of Washington’s psychiatric hospitals,
providing a community based homelike environment for long term rehabilitation. The facility will
not house any sexually violent predators or those with mental illness so severe as to warrant
involuntary commitment.
Residents will remain on-site for 9-24 months until they’re ready to head out into the real world.
Most of the construction work will be on interior improvements. There will be very little
construction related disruption to adjoining properties. The IBHTF will be located on the first floor.
The second floor office space will be renovated, but will continue to be rented out as commercial
office space. The proposed use as a behavioral residential unit and commercial office space aligns
with the City’s strategic zoning goals. The property is zoned commercial arterial. The city’s
unclassified use determination has not been appealed. Aristo agrees with the staff report conclusions
that all review criteria are met.
Regarding potential public concern over public safety, Mr. Droze believed the City’s response was
appropriate. He also noted that under the Sunderland Family Treatment Center v. Pasco, state law
doesn’t allow generalized fears of mental health treatment centers to serve as the basis for denying an
otherwise acceptable land use application. The Aristo facility also qualifies as an essential public
facility under the Growth Management Act, which requires the City to accommodate the use, which it
has in this case.
Exhibits
Exhibits 1-25, identified in the “Exhibits” document for this project, were admitted into the record
during the December 7, 2021 hearing.
FINDINGS OF FACT
Procedural:
1. Applicant. Aristo Healthcare Services, 707 S Grady Way, Suite 6046, Renton, WA
98057.
2. Hearing. A virtual hearing was held on the Zoom application at noon on December 7, 2021,
Zoom ID No. 992 6295 8488. The record was left open through 5:00 December 8, 2021 for any
persons who were unable to participate due to technical issues.
3. Project Description. Aristo Healthcare Services requests approval of a conditional use permit
to operate an Intensive Behavioral Health Treatment Facility (IBHTF) in an existing building at 95 S
Tobin St. The existing 19,262 square foot building consists of two (2) floors and an intermediate
level. The Applicant proposes a change of use on the first level of the building (approximately 7,151
square feet) from commercial office use to a 16-bed IBHTF to rehabilitate persons that are
transitioning out of Washington State psychiatric hospitals. Resident patients would each reside
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CONDITIONAL USE - 3
CAO VARIANCE - 3
onsite in a community-based group setting for an average of 9 to 24 months during their
rehabilitation and adjustment from inpatient life. The remaining space in the building would continue
to be leased to third-party tenants and operated as commercial office use. The site includes a paved
parking lot accessed from Lake Ave S with 44 surface parking spaces. The Applicant is proposing
minor exterior site improvements to the parking lot and landscaping. Proposed interior improvements
would support the proposed IBHTF and are anticipated to take six (6) months to complete. The site is
located in Zone 2 of the Downtown Aquifer Protection Area, a high seismic hazard area, and a high
erosion hazard area.
4. Surrounding Uses. Surrounding land uses to the north, south and west are composed of
commercial use and single-family residential use is located to the east.
5. Adverse Impacts. There are no significant adverse impacts associated with the project.
Pertinent impacts are more specifically addressed as follows:
A. Aesthetic. The proposal will create no adverse aesthetic impacts. The proposal only
involves minor exterior site improvements to the parking lot and landscaping.
B. Traffic. The proposal will not create any significant adverse traffic impacts. The
Applicant submitted a Trip Generation Assessment, prepared by Heath & Associates,
Inc, dated June 2021 (Exhibit 7). The Assessment used a site-specific trip generation
analysis to provide a forecast for the proposed on-site behavioral health component.
By converting the first-floor general office area of the existing office building to a 16-
bed behavioral health facility, the proposed development would yield approximately 7
net new AM peak hour trips (-1 inbound / 8 outbound), -1 net new trips PM peak hour
trips (1 inbound / -2 outbound), and 56 net new average weekday daily trips. Staff
concurs that the proposed use would not adversely impact vehicle or pedestrian traffic
and concurs with the findings of the Traffic and Parking Assessment. The Applicant
does include restriping the parking lot, but that striping will be subject to staff review
and approval, which assures safe and efficient traffic and pedestrian circulation. Any
increased traffic created by the proposed change of use would be mitigated for by the
payment of transportation impact fees. Additionally, the proposal passed the City’s
Transportation Concurrency Test (Exhibit 8), which considers such factors as the
citywide transportation plan and trip capacity within allowed growth levels.
C. Critical Areas. The proposal will not adversely affect critical areas. According to
City of Renton (COR) Maps, the site is in a high seismic hazard area and is in the
Wellhead Protection Area Zone 2. A geotechnical report was not required to be
submitted with the formal land use application as no new buildings or expansions of
the existing building are proposed. The Applicant is not proposing any significant site
construction that is anticipated to negatively impact the aquifer protection area or
require any mitigation. Additionally, no hazardous material uses or storage are
anticipated with the proposed change of use.
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CONDITIONAL USE - 4
CAO VARIANCE - 4
D. Noise, light and glare. The proposal will not create any significant noise, light and
glare impacts. There are no anticipated significant exterior changes proposed,
including no new sources of noise, light or glare.
E. Parking. As mitigated the proposal will not create any significant parking impacts
because proposed parking complies with the City’s parking standards.
Pursuant to RMC 4-4-080, the parking ratio for the proposed use could be based on
general use, uses not specifically identified, which allows the Department of
Community and Economic Development staff to determine which identified uses
would be most similar based upon staff experience with various uses and information
provided by the Applicant. The amount of required parking for uses not listed in the
parking section of RMC would be the same as for the most similar use.
Currently, the existing Site contains 42 standard parking spaces and two (2) ADA
parking stalls for a total of 44 parking spaces. Based on the required general office
parking standards, the existing 19,262 square foot building would be required to
provide a minimum of 39 parking spaces and a maximum of 87 parking spaces. The
Applicant is not proposing to add any new parking stalls to the existing parking lot,
only restriping of the existing surface parking lot as part of the proposed change of
use.
Based upon staff experience with various uses and information provided by the
Applicant and given that the patients would not retain vehicles onsite, general office
use for the existing building should be retained for the purposes of determining
minimum and maximum number of parking spaces required. Therefore, the existing
44 surface parking space at 95 S Tobin St would comply with the allowed range of 39
to 87 parking stalls
F. Overconcentration and Suitability of the Site. The proposal will not create an
overconcentration of IBHTF use in the vicinity of the project site. The proposed
IBHTF would be the only IBHTF in the City of Renton.
The project site is also suited for the proposed use. The building, as constructed,
would allow for initiation of the use with only interior renovations to the existing
building. Further, the City Center Community Planning Area and proximity to public
transportation and other nearby services and amenities make 95 S Tobin St a suitable
location for the first IBHTF in the City of Renton.
G. Landscaping. Landscaping is currently provided in areas not occupied by buildings or
paved areas to buffer adjacent properties from potentially adverse effects of the
proposed uses. Existing street trees would remain and the understory would be infilled
with new plantings and would be irrigated and maintained to current city standards.
The Applicant does not anticipate any need for additional landscaping to buffer
adjacent properties because no potentially adverse effects are expected. A condition
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CONDITIONAL USE - 5
CAO VARIANCE - 5
of approval requires that the Applicant be required to provide a detailed landscape
plan and irrigation plan with the building permit application.
H. Public Safety. The proposal does not create any significant public safety impacts that
merit any additional conditions or project denial.
A comment letter was submitted by Scott Howell expressing concern over public
safety impacts from the proposed facility. As noted in Ex. 12, 4-8 staff members
would be working at the IBHTF facility at any given time with its 16 residents. As
testified by Mr. Droze, the mental impairment of the residents do not rise to the
severity of meriting involuntary commitment and there will be no violent sexual
predators in the resident population. No evidence has been presented that the residents
present a threat to public safety except for the fact that they suffer from mental illness
not severe enough to merit commitment. As outlined in Conclusion of Law No. 3, the
City has the burden of proof in establishing public safety problems to legally justify
any conditions or adverse decision. Given the evidence in the record, that standard of
proof is not met. There is no evidence of any threat to public safety, hence no
conditions or denial can be issued on that basis.
I. Compatibility. The proposal is fully compatible with surrounding uses. Most
surrounding uses are commercial and likely more intense in character. As outlined
above, the proposal will not create any adverse impacts that would adversely affect
surrounding properties. Adjacent properties would observe little change to the
activities or improvements of the site. carried out on the site other than the daily
comings and goings. Traffic, noise, and staffing levels would be minimal. No
changes are proposed to the exterior of the building. Inpatient beds would be limited
to 16 and Aristo Healthcare Services anticipates staffing of approximately 17.4 FTEs.
The facility would include indoor activity spaces and other onsite facilities such as
laundry to limit the amount of external activity that is necessary.
Conclusions of Law
1. Authority. Hearing examiner conditional use permits qualify as Type III review pursuant to
RMC 4-8-080(G). As outlined in RMC 4-8-080(G), the Hearing Examiner is authorized to hold
hearings and issue final decisions on Type III applications subject to closed record appeal to the
Renton City Council.
2. Zoning/Comprehensive Plan Designations. The property is zoned Commercial Arterial (CA).
The Comprehensive Plan designation is Commercial Mixed Use (CMU).
3. City/Public Has Burden to Establish Alleged Impacts Based Upon Disability. The City and/or
members of the public have the burden to establish any impacts they believe result from the
disabilities of IBHTF residents. For this application, that burden to the City/Mr. Howell specifically
applies to the concern raised in a public comment letter by Mr. Howell that the residents of the IBHTF
will serve as a source of crime and/or danger to surrounding uses.
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CAO VARIANCE - 6
The City’s burden to establish impacts based upon disability arises from the American with
Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). Both Acts prohibit discrimination based
upon disability in zoning. The ADA prohibits discrimination based on disability in programs,
services, and activities provided or made available by public entities. Likewise, the FHA prohibits
discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions,
based on disability. The House Report on the FHA emphasizes that its 1988 amendments were
"intended to prohibit the application of special requirements through land-use regulations, restrictive
covenants, and conditional or special-use permits that have the effect of limiting the ability of such
individuals to live in the residence of their choice in the community." H.R. Rep. No. 100-711 at 24.
In this case, there is no question that the IBHTF suffer from disabilities protected by the ADA and
FHA. The FHA and ADA both define a handicap, i.e. disability, to include “a physical or mental
impairment which substantially limits one or more of such person’s major life activities.” See 42 USC
§ 3602; 42 USC § 12102. As testified by Mr. Droze, IBHTF residents suffer from mental illness and
need the assistance of IBHTF staff to transition from psychiatric hospitals to the “real world.”
Mr. Howell is clearly concerned that IBHTF serve as a threat to public safety due to their mental
illness. He would likely not have this concern if the IBHBT were an apartment complex for 16
residents. In this regard, any project conditions or denial based upon mental illness would be
considered disparate treatment under ADA/FHA case law. Disparate treatment arises when a party
expressly treats members of a protected group differently than others who are similarly situated. See
Children's Alliance v. City of Bellevue, 950 F. Supp. 1491, 1495 (W.D. Wash. 1997).
Despite the negative connotation of labelling an action “disparate treatment,” courts recognize that
cities can have legitimate reasons for protecting their communities from the impacts of projects
housing the disabled even if those impacts are attributable to disability. If the actions of a City result
in disparate treatment, the City can validate those actions if the City can “show” that the action
benefits the protected class or that its responds to legitimate public impacts. See Id. at 14991.
The Applicant’s reference to Sunderland Servs. v. Pasco, 127 Wn. 2d 782 (1995) is an additional legal
basis for placing the burden of proof on the City. Sunderland addressed the validity of Pasco’s denial
of a special use permit for a group home for troubled teenagers. The denial was based upon findings
that the proposal would threaten public safety. The State Supreme Court findings invalidated the
public safety findings, determining that they were based solely upon community fears of the residents’
conduct. The Court did not find such fears sufficient to serve as competent or substantial evidence
that the group home would result in public safety impacts.
1 The Children’s Alliance case was directly addressed with the facially disparate impact of a group home ordinance. The
reasoning of the case appears to equally apply to disparate treatment in the application of an ordinance as well, such as
application of the conditional use criteria in this case.
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CAO VARIANCE - 7
In this case, as outlined in Finding of Fact No. 5H, there are no statistics, data or any other evidence
that establish that IBHTF residents serve as a threat to public safety. Consequently, no finding to that
effect is merited since the burden of proof is on the City/Mr. Howell.
3. Review Criteria. Hearing examiner conditional use permits are required for religious uses in
the R-10 zone per RMC 4-2-060G. Conditional use criteria are set by RMC 4-9-030.
Conditional Use
The Administrator or designee or the Hearing Examiner shall consider, as applicable, the following
factors for all applications:
RMC 4-9-030(C)(1): Consistency with Plans and Regulations: The proposed use shall be
compatible with the general goals, objectives, policies and standards of the Comprehensive Plan, the
zoning regulations and any other plans, programs, maps or ordinances of the City of Renton.
4. The criterion is met. The proposal is consistent with the City’s development standards and
comprehensive plan for the reasons identified in Findings 16-20 of the staff report.
The staff “unclassified use determination” that the IBHTF should be allowed in the Commercial
Arterial zone is beyond the jurisdiction of examiner review, since that staff determination has not
been timely appealed. Case law is clear that decisions that qualify as final land used decisions under
the Land Use Petition Act, Chapter 36.70C RCW (LUPA), cannot be collaterally attacked after
expiration of their appeal period in subsequent land use decisions. This principle, identified as
finality in case law, has been reiterated in a long line of LUPA cases and has been extended to the
concept that even if a decision is illegal, it cannot be challenged once its appeal period has expired.
See, e.g., See Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11 (2005). This finality principle
is statutorily derived from LUPA, which provides that appeals of final land use decisions are barred if
not filed within 21 days of issuance. See Chelan County v. Nykreim, 146 Wn. 2d 904 (2002); RCW
36.70C.040.
RMC 4-9-030(C)(2): Appropriate Location: The proposed location shall not result in the
detrimental overconcentration of a particular use within the City or within the immediate area of the
proposed use. The proposed location shall be suited for the proposed use.
5. The criterion is met. The proposal does not result in an overconcentration of IBHTFs for the
reasons identified in Finding of Fact No. 5F.
RMC 4-9-030(C)(3): Effect on Adjacent Properties: The proposed use at the proposed location
shall not result in substantial or undue adverse effects on adjacent property.
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CAO VARIANCE - 8
6. As determined in Finding of Fact No. 5, as conditioned and mitigated, there are no adverse
impacts associated with the proposal, so it will not result in substantial or undue adverse effects on
adjacent property.
RMC 4-9-030(C)(4): Compatibility: The proposed use shall be compatible with the scale and
character of the neighborhood.
7. As determined in Finding of Fact No. 5, the proposal will not create any adverse aesthetic
impacts or any other impacts that would create compatibility problems.
RMC 4-9-030(C)(5): Parking: Adequate parking is, or will be made, available.
8. The criterion is met for the reasons identified in Finding of Fact No. 5E.
RMC 4-9-030(C)(6): Traffic: The use shall ensure safe movement for vehicles and pedestrians and
shall mitigate potential effects on the surrounding area.
9. The criterion is met for the reasons identified in Finding of Fact No. 5B.
RMC 4-9-030(C)(7): Noise, Light and Glare: Potential noise, light and glare impacts from the
proposed use shall be evaluated and mitigated.
10. As determined in Finding of Fact No. 5D, the proposal will not create any significant noise,
light and glare impacts.
RMC 4-9-030(C)(8): Landscaping: Landscaping shall be provided in all areas not occupied by
buildings, paving, or critical areas. Additional landscaping may be required to buffer adjacent
properties from potentially adverse effects of the proposed use.
11. The criterion is met as determined in Finding of Fact No. 5G.
DECISION
As conditioned, the conditional use permit satisfies all applicable review criteria for the reasons
identified in the findings and conclusions of this decision and for that reason is approved.
1. The applicant shall provide a minimum area of one hundred and fifteen and one-half
square feet (115.5 SF) for recycling and refuse collection and the area shall be located
outside the alley and fenced or screened with a minimum six-foot (6') fence or
landscaping. Refuse and recycling plans that provide plan view and elevations of the
enclosure shall be reviewed and approved by the Current Planning Project Manager prior
to building permit issuance.
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2. The applicant shall provide a secured extended use bicycle parking area with a minimum
of four (4) off-street bicycle parking stalls. Bicycle parking shall be shown on the floor
plan with the building permit application and shall be reviewed and approved by the
Current Planning Project Manager prior to building permit issuance.
3. The applicant shall provide a minimum of two (2) interior parking lot landscape areas
that measure a minimum of eight-foot (8’) wide by 12-foot (12’) long with the building
permit application. A detailed landscape plan shall be provided to, and approved by, the
Current Planning Project Manager prior to building permit issuance.
4. The applicant shall be required to provide a detailed landscape plan and irrigation plan
with the building permit application. The detailed landscape plan and irrigation plan shall
be provided to, and approved by, the Current Planning Project Manager prior to building
permit issuance.
DATED this 20th day of December 2021.
City of Renton Hearing Examiner
Appeal Right and Valuation Notices
RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III application(s)
subject to closed record appeal to the City of Renton City Council. Appeals of the hearing
examiner’s decision must be filed within fourteen (14) calendar days from the date of the decision.
A request for reconsideration to the hearing examiner may also be filed within this 14-day appeal
period.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
CITY OF RENTON
DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT
HEARING EXAMINER DECISION
EXHIBITS
Project Name:
Aristo Healthcare Services IBHTF
Project Number:
LUA21-000345, ECF, CU-H
Date of Hearing
December 7, 2021
Staff Contact
Clark Close
Senior Planner
Project Contact/Applicant
Chris Rubright
KMD Architects
1325 Fourth Ave, Suite 1702
Seattle, WA 98101
Project Location
95 S Tobin St, Renton, WA 98057
(3806000095, 3806000085, and
3806000120)
The following exhibits are included with the Hearing Examiner Decision:
Exhibits 1-16: As shown in the Environmental Review Committee (ERC) Report
Exhibits 17-22: As shown in the Staff Report to the Hearing Examiner
Exhibit 23: Staff PowerPoint
Exhibit 24: COR Maps, http://rp.rentonwa.gov/Html5Public/Index.html?viewer=CORMaps
Exhibit 25: Google Earth, https://www.google.com/earth/
Page 2
The following exhibits are included with the Staff Report to the Hearing Examiner:
Exhibit 1: Environmental Review Committee (ERC) Report
Exhibit 2: Architectural Site Plan and Vicinity Map
Exhibit 3: Topographic Survey
Exhibit 4: Conceptual Landscape Plan
Exhibit 5: Tree Retention Worksheet
Exhibit 6: Floor Plans
Exhibit 7: Trip Generation Assessment, prepared by Heath & Associates, Inc, dated June 2021
Exhibit 8: Transportation Concurrency Memo, prepared by Brianne Bannwarth, dated October 18, 2021
Exhibit 9: Comment from Duwamish Tribe, dated October 6, 2021
Exhibit 10: Staff Response to Duwamish Tribe, dated October 7, 2021
Exhibit 11: Public Comment Email from Howell, dated October 7, 2021
Exhibit 12: Staff Response to Public Comment, dated October 13, 2021
Exhibit 13: Environmental (SEPA) Checklist
Exhibit 14: Unclassified Use Determination
Exhibit 15: Exterior Photos
Exhibit 16: Advisory Notes
Exhibit 17: Supplemental ERC memo, dated November 23, 2021
Exhibit 18: Staff Report to the Hearing Examiner
Exhibit 19: Project Narrative
Exhibit 20: Conditional Use Permit Justification
Exhibit 21: Environmental “SEPA” Threshold Determination and Notice
Exhibit 22: City Center Community Plan, amended June 12, 2017