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Home My WebLink AboutEx_29_Home Depot Ltr. to HE 07-26-2022 (final) U.S. Bank Centre | 1420 5th Avenue | Suite 3400 | Seattle, WA | 98101 | M 206-622-1711 | F 206-292-0460 | schwabe.com Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com July 26, 2022 VIA E-MAIL AND FIRST CLASS MAIL Mr. Phil Olbrechts Hearing Examiner Renton City Hall 1055 S. Grady Way Renton, WA 98057 RE: Land Use File No. LUA21-000452; Home Depot, 901 S. Grady Way, Renton, WA Our File No.: 103058-270011 Dear Hearing Examiner Olbrechts: We submit this letter on behalf of Home Depot, U.S.A., Inc. (“Home Depot”), applicant for the redevelopment of the former Sam’s Club structure located at 901 South Grady Way (the “Property”) into a Home Depot store. As part of the redevelopment of the Property, Home Depot has requested Hearing Examiner Site Plan Review, Environmental Review, and a Street Modification. The Renton Department of Community and Economic Development recently issued their Staff Report on the redevelopment in advance of the July 26, 2022 hearing before the Hearing Examiner. Home Depot now submits these comments in response to the Staff Report and ongoing correspondence with City Staff. I. WIRE UNDERGROUNDING In a series of emails exchanged between the Home Depot and the City this month, the City has made clear that they will require Home Depot to underground overhead wires on the Property.1 Home Depot objects to this requirement, and believes valid exemptions to the wire undergrounding standards apply. The Renton Municipal Code (“RMC” or “Code”) is clear that “[e]xisting overhead power and utility facilities abutting a … redevelopment site triggering street frontage improvements under RMC 4-6-060 shall be required to be relocated underground.” RMC 4-6-090(C)(2). However, the Code also provides two applicable exemptions: first, for electric transmission systems of a voltage fifty five (55) kv or more, and second, for “[r]eplacement of overhead facilities for a distance of three (3) or fewer spans (four (4) poles) or five hundred feet (500’).” RMC 4-6- 090(D)(1)(c) and (g). Home Depot believes that these exemptions apply here, and consequently, the undergrounding of overhead wires is not required by the Code for the redevelopment of the Property. Additionally, the Code also provides an exemption for “technological difficulty 1 The Staff Report is silent on which overhead wires will need to be undergrounded. Mr. Phil Olbrechts July 26, 2022 Page 2 schwabe.com associated with the particular facility.” RMC 4-6-090(1)(i)(i). It is clear that this exemption should apply to the wires that cross S. Grady Way, as they have been identified by Puget Sound Energy in an email to Home Depot as providing “most of the power to the [City],” and to the wires that cross Interstate 405, as it is a major, elevated highway. Home Depot also has constitutional concerns with the City’s wire undergrounding demands. To satisfy the Fifth Amendment, the government must establish that its proposed condition is roughly proportional to the impact of the proposed development. Dolan v. City of Tigard, 512 US 374, 391 (1994). This requires that “some sort of individualized determination that the required [condition] is related both in nature and extent to the impact of the proposed development.” Id. at 391. Here, the City has stated that Home Depot must underground all wires on the Property, including those that supply most of the power to the City and those that transect Interstate 405. The City’s undergrounding requirements, which will likely require Home Depot to incur costs more than $1 million, is not roughly proportional to the redevelopment proposed for the Property. Therefore, the City’s requirements related to wire undergrounding do not comport with the “rough proportionality” standard set forth in Tigard. II. WETLANDS The Staff Report also includes the following recommendation for the redevelopment: “13. The applicant shall submit a final stream buffer enhancement plan to mitigate for the impacts of the garden center addition within the stream buffer. The enhancement plan shall be prepared by a qualified professional and submitted with the Construction Permit application for review and approval by the Current Planning Project Manager. Fencing and critical areas signage shall be provided in accordance with the City’s Critical Areas Regulations (RMC 4-3-050G.3). The stream buffer enhancement shall be monitored to ensure performance for 5 years and backed by a surety device sufficient to guarantee that structures, improvements, and mitigation required perform satisfactorily for a minimum of five (5) years after installation has been completed.” Staff Report, p. 48 (emphasis added). Home Depot is strongly opposed to the Staff Report’s recommendation. The Code is clear that Critical Areas regulations “may not apply to development proposed on sites that are separated from critical areas by pre-existing, intervening, and lawfully created structures, roads, or other substantial existing improvements” where the intervening lots/parcels and roads “(i.) [s]eparate the subject upland property from the critical area due to their height or width … and (ii.) [s]ubstantially prevent or impair delivery of most functions from the subject upland property to the critical area.” RMC 4-3-050B(1)(g) (emphasis added). Here, there is an existing road and a substantial existing improvement separating the critical areas on the Property. Therefore, Home Depot objects to the Staff Reports’s recommendation, as it fails to acknowledge the Code’s requirements per RMC 4-3-050B(1)(g). Mr. Phil Olbrechts July 26, 2022 Page 3 schwabe.com III. ROOFTOP MECHANICAL SCREENING The City imposed the following condition for the screening of rooftop mechanical equipment on the Property: “[a]ny proposed surface mounted or rooftop mounted utility equipment shall be screened from public view … Staff recommends, as a condition of approval that a screening detail be provided for any proposed surface or roof mounted utility equipment be submitted to the Current Planning Project Manager for review and approval.” Staff Report, p. 15-16; Staff Report, Condition 11, p. 48. However, in emails exchanged between Home Depot and the City in the weeks leading up to the hearing before the Hearing Examiner, the City has indicated that this condition requires the screening of rooftop mechanical equipment from public view for automobile drivers on the elevated portion of Interstate 405 directly adjacent to the Property. This interpretation of the Code is unreasonable. Instead, Home Depot argues that “screened from public view” should be measured from ground level. Further, unscreened mechanical equipment is clearly visible on the roof of Renton City Hall from Interstate 405. IV. EXTERIOR FENCING Home Depot intends to install a tight-woven mesh fence to secure the materials stored outside in the garden center on the Property. Staff Report, p. 15; Staff Report, Condition 10, p. 48. The proposed height of the fence is 14.5 ft. Id. In its Staff Report, the City stated that “[a]ny proposed fencing that exceeds the maximum eight foot (8’) high fencing requirement would not be permitted.” Id. However, the City misapplies the Code here. Rather than an eight ft. maximum for fences, there is a more relevant provision of the Code that imposes a six ft. minimum for the screening of outdoor storage as follows: “outdoor storage must be screened from adjacent or abutting properties and public rights-of-way. Outdoor storage uses shall provide sight-obscuring fences or solid walls a minimum of six feet (6') in height … as determined by the Administrator to achieve adequate visual or acoustical screening … Products or materials covered by buildings with roofs but without sides shall be considered outside storage and subject to the screening provisions of this Section.” RMC 4-4-095(F)(3) (emphasis added). Home Depot greatly appreciates the opportunity to submit these comments to the Hearing Examiner. We look forward to working with the City to achieve the shared goals of the redevelopment of the Property. Very truly yours, s/Kenneth Katzaroff JKKA:rmm cc: Daniel Zoldak PDX\103058\270011\RMM\34311209.1