HomeMy WebLinkAboutLUA-06-071_Report 2,
Buck~ Gordon LLP
Att(lfney~ ,ll I dW
VIA HAND DELIVERY
Ms. Bonnie Walton
City Clerk
City of Renton
1055 South Grady Way
Renton, WA 98055
January 12, 2007
Re: Hearing Examiner Motions and Declarations
Dear Ms. Walton:
2025 First AVCI1UC, Suite 500
Seattle. W/\ 98171-3140
206~382~954C
206-626-'J675 Fax
www.buckgor00tl.COrn
CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
]);}, tJefed Mt. Lej«/
3: ,;/.a. f. m.
We submit the following documents for filing on behalf of Brad Nicholson and the
Alliance for South End (ASE):
• Motion to Remand Site Plan Approval, with Exhibits;
• Declaration of Peter Buck, with Exhibits;
• Motion for Declaratory Ruling Regarding Standing; and
• Declaration of Brad Nicholson, with Exhibits.
These motions and declarations are filed in the Matter of the Appeals of ASE and Brad
Nicholson regarding The Director's Administrative Site Plan Approval and The Director's
Administrative Interpretation/Policy Decision.
We have included extra copies for the Hearing Examiner. Copies of this letter and the
documents have been transmitted via e-mail to all coun record.
Ve
Enclosures
cc: Fred Kaufman, Hearing Examiner
Y:\WP\ASE\Site Plan Appeal\I011207.doc
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CITY OF RENTON
JAN 12 Z007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval
LUA 06-071, SA-A
CITY OF RENTON'S MOTION TO
DISMISS APPEAL OF BRAD
NICHOLSON OF THE DIRECTOR'S
ADMlNlSTRATIVE SITE PLAN
APPROVAL FOR LACK OF
JURISDICTION DUE TO
NICHOLSON'S FAILURE TO
PERFECT HIS APPEAL
I. RELIEF REQUESTED
COMES NOW the city of Renton and asks the Hearing Examiner to dismiss Brad
Nicholson's appeal from the Director's Administrative Site Plan Approval for lack of
jurisdiction, as Mr. Nicholson has failed to perfect his appeal.
n. FACTS
On August 17, 2006, the city's Development Services Director, Neil Watts, issued
an approval of the Site Plan for The Landing. On August 31, 2006, attorney Peter Buck
filed an appeal document entitled "Notice of Appeal of Administrative Site Plan
Approval." The signature block on this document indicates it is filed by "BUCK &
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF SITE
PLAN APPROVAL FOR LACK OF
JURISDICTION - 1
ORIGINAL
WARREN BARBER &: FONTES, P.s.
ATIORNE\'SAT LAW
tOO SOl1J'H SECONDSTREET -p.o. BOX 62&
RENTQN,WA'JlIai'l
PHONE: (425)25S-861lI FAX! (425):.!S5-M74
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GORDON, LLP By: Peter L. Buck, WSBA #05060, Attorneys for Alliance for the South
End." (Emphasis added.)
The Notice of Appeal purports to include Brad Nicholson as an Appellant, as an
individual separate from ASE. Also, the Notice of Appeal alleges that Nicholson has
standing. However, the document does not say that the BUCK & GORDON, LLP fIrm
represents Mr. Nicholson, as an individual. Further, in the Conclusion, at page 9 of the
Notice of Appeal of the Director's Administrative Site Plan Approval, the request for
relief is made only by ASE.
Not only is there no appeal document signed on Mr. Nicholson's behalf; neither
was there any $75 fee paid by him or on his behalf. On August 31, 2006, the City Clerk's
Office received a check from the law office of Buck & Gordon, LLP in the amount of
$75 and wrote a receipt reflecting the payment of$75 for the appeal fIled by ASE. There
was no check submitted to the clerk's office on behalf of Brad Nicholson.
m. Evidence Relied Upon
A. Declaration of Bonnie Walton and exhibits thereto
1. Receipt of $75 from Buck & Gordon re: Site Plan Appeal
2. Receipt of$75 from Misty Cove
3. Receipt of $75 from Steve Jansen
B. Notice of Appeal of Administrative Site Plan Approval
C. Notice of Appeal; Appeal of DNSM (by Misty Cove Association)
D. Appeal letter of Steve Jansen
E. Stipulation and Order relating to Target
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF SITE
PLAN APPROVAL FOR LACK OF
JURISDICTION -2
WARREN BARBER &: FONTFS, P.5.
ATI'OItHEYS AT LAW
100 sotmi SBCOND STREET • P.o. BOX 626
Rl'Nl'ON. W A 9IIJ57
PHONE: (425) 2SS-I678 fAX: (f25) 2$.54'4
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IV. Argument
RMC 4-8-IIOC(3) provides:
Any appeal shall be filed in writing. The written notice of appeal shall
fully, clearly and thoroughly specify the substantial error(s) in fact or Jaw
which exist in the record of the proceedings from which the appellant
seeks relief
The written notice of appeal must be accompanied by a fee. RMC 4-8-IIOC(4) provides:
"The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170,
the fee schedule of the City." The schedule in RMC 4-1-170A provides that the fee for an
appeal of an Administrative Decision is $75.
In this appeal, neither Mr. Nicholson, nor anyone on his behalf, filed a written
document in compliance with RMC 4-8-IIOC(3). Neither did Mr. Nicholson, nor anyone
on his behalf, pay the requisite $75 fee for his appeal. Consequently, Mr. Nicholson, as
an individual, did not perfect his appeal of the Administrator's decision.
In a similar and unrelated appeal, the homeowners' association of Misty Cove
appealed the SEPA decision related to Football Northwest, Inc. One of the residents of
Misty Cove, Steve Jansen, also appealed. Two separate appeal notices were filed with
the City Clerk's Office and two separate appeal fees were submitted. (See Exhibits A2,
AJ, C and D) The language of the Renton Municipal Code is clear. Ifa person wants to
appeal, he/sherlt must file a written notice and pay the requisite fee. Mr. Nicholson has
done neither.
The documents on file show that when Mr. Buck signed the Notice of Appeal in
this matter, he signed as attorney for ASE, not Mr. Nicholson. Until December 11,2006,
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF SITE
PLAN APPROVAL FOR LACK OF
JURISDICTION -3
WARREN BARBER & FONTFS, P.5.
A lTORN£'t'S AT LAW
l00:5OlfJH SEC0N0S1'R1!ET· p.o. tIOX62fi
RENTON,WA9i!I057
PHONE:(425)~ FAX:(l25)255-S474
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there was no pleading filed with the City Clerk's Office or the Hearing Examiner that
shows that Mr. Buck represents Mr. Nicholson in his individual capacity.i
On, or about, December 11, 2006, the parties to this appeal and Mr. Nicholson
entered into a Stipulation relating to eliminating the Target Store's development from this
or any of ASEINicholson's appeals relating to the Landing. Mr. Buck signed the
Stipulation and Order on behalf of Brad Nicholson, as well as ASE. That is the first
pleading in this appeal signed by Mr. Buck on behalf of Mr. Nicholson.
Surely, Mr. Buck knows the legal significance of signing a pleading wherein he
identifies himself as an attorney for Mr. Nicholson. Unlike the Stipulation, Mr. Buck did
not sign the Notice of Appeal on behalf of Mr. Nicholson or as the attorney for Mr.
Nicholson. Mr. Buck did not file a Notice of Appearance for Mr. Nicholson. It wasn't
until December 11, 2006, when he signed the Stipulation and Order, that he became the
attorney of record for Mr. Nicholson. The representation by counsel is more than three
months too late.
Not only did Mr. Buck not sign the appeal on behalf of Mr. Nicholson, his firm
did not pay for Mr. Nicholson's appeal, despite having paid for the appeal of ASE. Only
one party (ASE) filed a Notice of Appeal and only one party (ASE) paid a fee.
V. CONCLUSION
Any purported appeal on behalf of Mr. Nicholson, independent from any
membership he might have in ASE, should be dismissed. Mr. Nicholson, as an
1 The issue of ASE's standing to appea1, based on Brad Nicholson's membership in ASE is being addressed
by separate brief by the Applicant The city joins in the Applicant's motion to dismiss ASE for lack of
Staoding based on Brad Nicholson's lack. of authority to direct the appeal by ASE. The city incorporates
by this reference, as if set out fully set forth herein, the aJgI1DIeIIIs made in Applicant's Motion to Dismiss
ASE and Nicholson Appeals of the Director's Administrative Site Plan Approval for Lack of JurisdictiOIL
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF SITE
PLAN APPROVAL FOR LACK OF
JURISDICTION -4
WARREN BARBER &: FONTES, P.5.
A.TroRNE\S AT LAW
UlOSOI.1JH 5E:CONDSTREET -P.o. BOX 621>
RENTON, WA 'lIIIS1
PHONE: (425) 255-8678 FAX: (425) 255-5474
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individual, has not perfected his appeal. Therefore, the Hearing Examiner lacks
jurisdiction to consider appeals on behalf of Mr. Nicholson, independent of his
membership in ASE.
-fI...
DATED this I Z -day of January, 2007.
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF SITE
PLAN APPROVAL FOR LACK OF
JURISDICTION
WARREN BARBER & FONTES, PS
- 5
a L. Fontes, WSBA #9604
'ttntneys for City of Renton
WARREN BARBER" FONTES, P B.
A.TJ'ORNEYS AT LAW
tOOSOUJHSECONOSTREET _ P.o.1IOX 6216
RENTON, WA 98IS7
PHONE: (425)25$-8678 fAX: (42S}2S5-5oI74
EXHIBIT A
DECLARATION OF BONNIE WALTON
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval
NO. 06-071, SA-A
DECLARATION OF BONNIE
WALTON IN SUPPORT OF RENTON'S
MOTION TO DISMISS BRAD
NICHOLSON'S APPEAL FOR
FAILURE TO PERFECT HIS APPEAL
I, Bonnie I. Walton, declare under penalty of pe!jury under the laws of the State of
Washington that the following is true and correct to the best of my knowledge, and that I
have first-hand knowledge of the facts presented herein:
L I am over 18 years of age and am competent to testify in this matter
2. I am the City Clerk for the city of Renton.
3. I have held this position since January, 2002.
4. My office is responsible for receiving notices relating to land use appeals
and receiving the fees paid for said appeals.
5. My office did not receive from Mr. Nicholson, or anyone on his behalf, a
written notice of appeal relating to the Site Plan Approval for The Landing as required by
RMC 4-8-11 OC(3).
DECLARATION OF BONNIE WALTON
IN SUPPORT OF RENTON'S MOTION
TO DISMISS BRAD NICHOLSON
(Site Plan Approval) -1
W ARRl3'llIARlIER & 1DNlFS, P S
p.o. BOX 626. RB"fflJN, WA 98057
00 so. SEC:a"ID STJlEET
J1H. (425) 255--8678 FAX {425} 255-5474
1 6. Neither did my office receive $75 from Mr. Nicholson, or anyone on his
2 behalf, for the appeal fee.
3 7. My office did receive from Mr. Buck's law firm a Notice of Appeal of the
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Director's Administrative Site Plan Approval as well as one check in the amount of $75.
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6 The receipt indicates the appeal is by ASE, not Brad Nicholson. Attached hereto as
7 Exhibit #1 is a copy of the receipt for the $75, indicating the fee was paid by ASE.
8 8. Earlier this year, Misty Cove appealed the SEP A decision related to the
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proposal made by Football Northwest, Inc.
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9. One of the residents of Misty Cove, Steve Jansen, appealed as well.
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12 10. In the Football Northwest, Inc. proposal, there were two separate appeal
13 notices filed with my office and two separate appeal fees were paid to the city.
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11. A Notice of Appeal was received from Misty Cove accompanied by a $75
fee. Attached hereto as Exhibit #2 is a copy of the receipt for the $75, indicating the fee
paid by Misty Cove.
12. Similarly, a Notice of Appeal was received from Steve Jansen,
accompanied by a $75 fee. Attached hereto as Exhibit #3 is a copy of the receipt for the
$75, indicating the fee paid by Steve Jansen.
DATED this I J. -II< day ofJanuary, 2007.
By:
DECLARATION OF BONNIE WALTON
IN SUPPORT OF RENTON'S MOTION
TO DISMISS BRAD NICHOLSON
(Site Plan Approval) - 2
Bonnie I. Walton
WARIUN BARBER & FONTES, p.s.
p D. BOX 626, RlNTON, WA 98057
100 SO_SECOND STRI£T
PH. (425) 255--8678 FAX (425) 255-5474
EXHIBIT #1 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
BUCK & GORDON
FOR THE APPEAL OF THE
DIRECTOR'S ADMINISTRATIVE SITE PLAN APPROVAL
; R--; c
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, W A 98055
425-430-6510
o Cash -, ._ ."
[j;:(Check NO._.::c.1_I-,/_·-=5,-,-'·/_' _
o Copy Fee
~ppealFee
Description: j i j
dfP<'c/ I To 4(4 , .. "
-'
;/ "~j/Ct I (' /f/'/ i //11'/1 -,....
Funds Received From:
Name /311(k.
Address
City/Zip
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"OJ _ A J ; _ »> ; _, i.U
Receipt N .. 0637
-/ ' t: <"f' /; 'J .,
Date __ '..:.," f--':':..rf cc'"":.../c:c{;{.=-).::::',-" _ rl
o Notary Service 0 ________ _
I
-------------------,-------------------
EXHIBIT #2 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
MISTY COVE ASSN. OF HOMEOWNERS
FOR THE APPEAL OF THE
MITIGATED DNS FOR FOOTBALL NORTHWEST
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, W A 98055
425·430·6510
o Cash ~heck No. X () So
Description:
o Copy Fee
g-Appeal Fee
CERTIFICATE
I, the undersigned City Clerk of the
City of Renton, Washington, certifY
that this is a true and correct copy of
Receipt AIo. %p . Subscribed
and sealed this 17 day of Noy. ,2017b
&zt4tftfttiV4r~.. , ... ., .. -..
Receipt N~ 0683
Date _/I+-f_&+I_Z_D_O_& __
o Notary Service 0 _________ _
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i '-' r/-pc, -('7 ;; i c;. c F I :5"4 /-11, S,y/
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Funds Received From:
Name
I Amount $ I
Address
City/Zip
City
----------,0-. ----------._---------------------
EXHIBIT #3 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
STEVE JANSEN
FOR THE APPEAL OF THE
MITIGATED DNS FOR FOOTBALL NORTHWEST
DC~h
lIJ<heck No.
Description:
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, W A 98055
425·430·6510
Funds Received From:
Name
Address
City/Zip
I
CERTIFICATE
I, the undersigned City Clerk of the
City of Renton, Washington, certify
that this i~ a true aJ}d correct copy of
RuerHloc tlJiL. Subscribed
and sea 7d thisfl.day' of Nov, ,200,," ~." Ltbf:t..tc:
.. ~-City Clerk .'''' c •..• ,
D <;OpyFee
\;;:( Appeal Fee
Receipt N 0682
o Notary Service 0 _________ _
Amount $ 75:. () ()
EXHIBITB
Notice of Appeal of Administrative Site Plan Approval
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval
)
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LUA-06-071, SA-A
NOTICE OF APPEAL OF
ADMINISTRATIVE SITE
PLAN APPROVAL
------------------------~)
I. INTRODUCTION
The Alliance for South End (ASE) and Brad Nicholson hereby file this Notice of i,_
Appeal of the Administrative Site Plan Approval for The Landing issued by the City's
Development Services Director on August 17, 2006 ("Director's decision," Exhibit A).
The Director's decision was based on substantial errors in law andlor fact, including
violations of the City's Site Development Plan Ordinance, noncompliance with the State
Environmental Policy Act (SEPA) and Renton's SEPA Ordinance, and reliance on a
flawed Master Site Plan approval, as set forth in further detail below.
II. TIMELINESS
This appeal is filed pursuant to RMC 4-9-200.N, which references RMC 4-8-
110.E, specifying a 14-day appeal period for administrative decisions.
NOTICE OF APPEAL OF
ADMINIS1RATIVE SITE PLAN APPROVAL - 1
Y:IWPIASElSITEPLAN APPEALINOTICE OF SITE PLAN APPEAL083106.lJOC
Buck0Gordon LLP
2025 First Avenue, Suite 500
Seettie. WA 98121
(206) 382·9540
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III. STANDING
A. ASE Standing
Appellant ASE is a Washington nonprofit corporation established to advance its
members' interests in Renton's environment, land use planning, and governmental and -fiscal integrity. ASE's membership is made up of Renton citizens who are directly
impacted by The Landing project in their daily activities.
ASE has standing to file this appeal, under the standards in RMC 4-9-200N,
because its members' interests are within the zone of interest to be protected or regulated
by the City's Site Development Review ordinance and SEPA, and its members have
suffered and will suffer the following injury in fact:
• ASE has one or more members that frequently drive the roads surrounding the
proposed project, who will be impacted by the increases in traffic associated with
this project and by the congestion that will degrade the roadway system.
• ASE has one or more members who enjoy Lake Washington and the natural
environment thereof, including water quality and fish habitat, who fish in the
waters immediately impacted by runoff from the project, and who will be impacted
by the degradation to water quality and harm to fish habitat associated with the
project's water runoff and the use of outdated stormwater standards.
• ASE has one or more members who are residents of Renton with an active interest
in the integrity of City of Renton's land use and environmental review processes,
who have actively participated In past land use decisions associated with
NOTICE OF APPEAL OF
ADMINISTRATIVE SITE PLAN APPROVAL -2
Y:IWPIASE\SITE PLAN APPEALINOTICE OF SITE PLAN APPEAL 083106.DOC
Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382·9540
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redevelopment of this property, who seek to ensure that the City abides by its
policies and procedures and conducts all project reviews in an open, proper and
ethical manner, and who are negatively impacted by the improper processing in
connection with this project. Due to the City's failure to follow its own procedures,
ASE's members were unable to introduce evidence regarding project impacts such
as traffic and stonnwater, which directly injure them.
• ASE has one or more members who wish to have their community planned and
development consistent with the provisions of the Renton Comprehensive Plan,
and are injured by the City's denial of their rights to such a community due to the
fact that The Landing is not consistent with the Comprehensive Plan.
• ASE has one or more members actively involved in earlier City of Renton
proceedings for this project who did not challenge previous decisions because they
relied on City promises of future enviromnental processing, promises which the
City has refused to honor.
B. Nicholson Standing
Appellant Brad Nicholson is a lifelong resident of the City of Renton and member
of ASE who lives near The Landing site, owns property near the site, commutes through
the site, and uses Gene Coulon Park and the waters of Lake Washington adjoining the site.
Nicholson has standing to file this appeal, under the standards in RMC 4-9-200N, because
his interests are within the zone of interest to be protected or regulated by the City's Site
NOTICE OF APPEAL OF
ADMINISTRATIVE SITE PLAN APPROVAL - 3
Y:\ WPlASE\SlTE PLAN APPEALINOTICE OF SITE PLAN APPEAL 083106.IXlC
Buck~ Gordon LLP
2025 First Avenue. Suite 500
Seattle, WA 98121
1206) 382·9540
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Development Review ordinance and SEP A, and he has suffered and will suffer the
following injury in fact:
• As a result of the unanalyzed and unmitigated traffic and stormwater impacts
caused by the project, Nicholson will suffer harm from increased traffic, delays,
and risk in traveling along the roads he depends upon to commute and travel
generally in the community; from decreased water quality in Lake Washington, the
Cedar River, and Johns Creek, and harm to Chinook salmon and other salmonids
that use these water bodies.
• Nicholson also has a longstanding interest in the land use decisions of the City of
Renton and has participated extensively in public hearings and proceedings
regarding The Landing site. As a result of the City's failure to hold a public
hearing on the Director's decisions approving The Landing project and the
Director's illegal designation of The Landing Master Site Plan as a "Planned
Action," Nicholson is already suffering harm from an inability to participate and
voice objections to the City Hearing Examiner and the City Council.1
IV. GROUNDS FOR APPEAL
A. The Director's Decision Violated Procedural and Substantive Requirements
of the City's Site Development Plan Ordinance (RMC 4-9-200).
1. Procedural Requirements. The Director's decision failed to comply with
the procedures prescribed in RMC 4-9-200. The Director's decision illegally bypassed the
public hearing before the Hearing Examiner, which is required by RMC 4-9-200.D
1 In addition, as a member of ASE, Nicholson is injured in the manner set forth in section IlI.A above.
NOTICE OF APPEAL OF Buck~Gordon LLP
ADMINISTRATIVE SITE PLAN APPROVAL - 4 2025 Fiest Ave,ue, Suite 500
Y:\WPlASE\SITE PLAN APPEALINOTICE OF SITE PLAN APPEAL083106.DOC 5e,ttie, WA 98,2, (206) 382·9540
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because the project exceeds the thresholds for "Large Project Scale" in RMG 4-9-
200.D(2)(b).2 Moreover, because a public hearing was required, the Hearing Examiner
was the appropriate official to take action on this project, not the Director. RMC 4-9-
200.0(12). -
The Director's decision also ignored several of the Site Plan Review Procedures
contained in RMC 4-9-200.0, including the requirement in RMC 4-9-200.0(8) that "[aJ
consistency review shall be conducted by the Zoning Administrator for proposals
submitted under the authority of an adopted Planned Action Ordinance" and the
requirement in RMC 4-9-200.0(9) that "the Environmental Review Committee shall
determine the necessity for a public hearing pursuant to subsection D2a of this Section."
2. Substantive Requirements. The Director's decision is flawed because the
Site Plan Review application for The Landing is inconsistent with the "Decision Criteria
for Site Plan and Master Plans" (RMC 4-9-200.E), as well as the "Additional Review
Criteria for Site Plan Review" (RMC 4-9-200.F), in the City's Site Development Plan
Review ordinance, as follows:
• DECISION CRITERIA FOR SITE PLAN AND MASTER PLANS
(RMC 4-9-200.E)
The Site Plan Review application fails to meet several of the general review
criteria in RMC 4-9-200.E including, but not limited to, the following:
The plan must conform to the Comprehensive Plan, its elements, goals, objectives
23 and policies (RMC 4-9-200.E(l)(a».
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25 2 A public hearing is also required because there are significant unresolved concerns about the proposal.
RMC 4-9-200.D(2)(a).
NOTICE OF APPEAL OF
ADMINISTRATIVE SITE PLAN APPROVAL - 5
Y:\ WPlASElSITE PLAN APPEALINOTICE OF SITE PLAN APPEAL 083 I06.IlOC
Buck0GordonLLP
2025 First Avenue. Suite 500
Se~ttle, WA 96121
(2061382·9540
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The plan must conform to existing land use regulations (RMC 4-9-200.E(1)(b»,
including the regulations regarding maximum setbacks in the Urban Center -
North I (UC-Nl) zone, RMC 4-2-120E.3
The plan must mitigate impacts to surrounding properties and uses (RMC 4-9-
200.E(1)(c». -The plan must mitigate impacts of the proposed site plan to the site (RMC 4-9-
200.E(1)(d».
The plan must conserve areawide property values (RMC 4-9-200.E(I)( e».
The plan must provide safety and efficiency of vehicle and pedestrian circulation
(RMC 4-9-200.E(I)(f).
The plan must be consistent with a Planned Action Ordinance (RMC 4-9-
200.E(2)(a».
The plan must create a compact, urban development that includes a compatible
mix of uses that meets the Comprehensive Plan vision and policy statements for
the CommerciallOffice/Residential or Urban Center North Comprehensive Plan
designations (RMC 4-9-200.E(2)(b».
The plan must provide an overall urban design concept that is intemally consistent,
and must provide quality development (RMC 4-9-200.E(2)(c».
The plan must conform to the approved conceptual plan required by development
agreement for the subarea in question (RMC 4-9-200.E(3)(a».
The plan must conform to the intent and the mandatory elements of the. design
guidelines located in RMC 4-3-100. The Master Plan must clearly identify the
3 RMC 4-2-l20E requires a maximum setback of five feet for both "Front Yard" and "Side Yard Along a
Street." The setbacks sbown on Exhibit 3, the submitted site plan, do not comply with this maximum
setback. For example, the setback to building 202 is approximately 90 feet from Park Avenue and 70 feet
from North 8th Street. These setbacks may not be modified except by the Hearing Examiner through the
variance process pursuant to RMC 4-9-250.B. See also RMC 4-B-070.H(I) (providing for Hearing Examiner
review of and action on ''variances associated with a development permit that requires review by the
Hearing Examiner"). The Hearing Examiner did not grant a variance from the setback regulations for this
project. To the eKtent that staff is relying on the administrative Interpretation/Policy Decision issued by the
Director on July 17, 2006, this project does not comply with the criteria established by that
Interpretation/Policy Decision. Additionally, appellants ASE and Nicholson have filed a separate appeal of
that decision, which is incorporated herein by reference.
NOTICE OF APPEAL OF
ADMINIS1RATIVE SITE PLAN APPROVAL -6
Y:IWP\ASE\SITE PLAN APPEALINOTICEOF SITE PLAN APPEAL083106.DOC
Buck0GordonLLP
2025 First: Avenue, Suite 500
Seattle, WA 98121
(206) 382·9540
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urban design concept for each district enunciated in the Urban Center North
Comprehensive Plan p •• licies (RMC 4-9-200.E(2)(b».
The proposed interconnected circulation network must demonstrate the function
and location of required circulation elements required in RMC 4-3-100. Internal or
local roads shall provide adequate edges and buffers to parking lots. A sufficient
number of pedestrian-oriented streets must be designated to implement the vision
for each district in the Urban Center North Comprehensive Plan desigoatiOf! (RMC
4-9-200.E(2)(c».
The plan must conform to RMC 4-3-020: Airport Compatible Land Use
Restrictions (RMC 4-9-200.E(4».
• ADDITIONAL REVIEW CRITERIA FOR SITE PLAN REVIEW
(RMC 4-9-200.F)
The Site Plan application fails to meet several of the review criteria in RMC 4-9-
200.F including, but not limited to, the following:
The plan must provide a desirable transition and linkage between uses and to the
street, utility, walkway, and trail systems in the surrounding area by the
arrangement of landscaping, fencing and/or other buffering techniques, in order to
prevent conflicts and to promote coordinated and planned benefit from, and access
to, such elements (RMC 4-9:200.F(J)(c».
The plan must promote the efficient function of parking and service areas by
effective location, design and screening, to provide integrated facilities between
uses when beneficial, to promote urban layouts in appropriate zones, and to
prevent unnecessary repetition and conflict between uses and service areas or
facilities (RMC 4-9-200.F(l)(e».
The plan must limit paved or impervious surfaces, where feasible, to reduce runoff
and increase natural infiltration (RMC 4-9-200.F(2)(e».
The plan must arrange the circulation pattern so that all ingress and egress
movements may occur at as few points as possible along the public street, the
points being capable of channelization for turning movements (RMC 4-9-
200.F(3)(b ».
The plan must coordinate access points on a superblock basis so that vehicle
conflicts and vehicle/pedestrian conflicts are minimized (RMC 4-9-200.F(3)(d».
NOTICE OF APPEAL OF
ADMINISTRATIVE SITE PLAN APPROVAL-7
Y:IWP\ASE'SITE PLAN APPEALlNOTlCE OF SITE PLAN APPEAL 083106.DOC
Buck0GordonLLP
2025 First Avenue, Suite 500
Seattle. WA 98121
(2061382·9540
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The plan must promote the safety and efficiency of the internal circulation system,
including the location, design and dimensions of vehicular and pedestrian access
points, drives, parking, turnarounds, walkways, bikeways, and emergency access
ways (RMC 4·9-200.F(3)(f).
The plan must separate loading and delivery areas from parking and pedestrian
areas (RMC 4-9-200.F(3)(g».
The plan must provide for transit and carpool facilities and access where
appropriate (RMC 4-9-200.F(3)(h».
The plan must provide for safe and attractive pedestrian connections between
parking areas, buildings, public sidewalks and adjacent properties (RMC 4-9-
200.F(3)(i».
Development proposed in the zones where design guidelines are in effect must
show how they comply with the intent and the mandatory elements of the design
guidelines located in RMC 4-3-100 (RMC 4-9-200.F(7».
The Director's Decision Failed to Comply With SEPA.
The Director's decision is inconsistent with SEPA (RCW 43.21C) and Renton's
SEP A Ordinance (RMC 4-9-070) because the following have not been met:
(1) requirements for addressing significant enviromnental impacts; (2) opportnnity for
public comment; (3) specific mitigation measures; (4) qualification of the project as the
same planned action designated in Planned Action Ordinance No. 5107; (5) verification
that the project meets the description of and will implement applicable conditions or
mitigation measures for the planned action; and (6) appropriate use of existing documents.
C. The Director's Decision Relied on a Flawed Master Site Plan Approval.
23 The Director's Site Plan approval referenced and necessarily relied on the Master
24 Site Plan approval dated May 19, 2006. RMC 4-9-200.B(l)(a) provides that "[nlo Site
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NOTICE OF APPEAL OF
ADMINISTRATIVE SITE PLAN APPROVAL - 8
Y:IWPIASElSITE PLAN APPEALINOTICE OF SITE PLAN APPEAL 083106.DOC
Buck@GordonLLP
2025 Rrst Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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Plan Review within an area shall be approved until such time as a Master Plan is approved
for the same area." The Director's Master Site Plan approval was erroneous, for the
reasons discussed in ASE's Master Site Plan appeal and its pleadings in that appeal.4 The
Site Plan cannot be approved until the City corrects the errors in the Master Site Plan
approval for The Landing.
v. CONCLUSION
For the reasons stated above, ASE respectfully requests that the Hearing Examiner
remand the Director's de?rther proceedings.
Dated this~.Jay of August, 2006.
By: Pe·-ter~L-.=B~K~,~S~h#=0~5M~0~~~---
Attorneys r Alliance for the South End
4 See appeal statements and related pleadings, under LUA-05-136, SA-A, SM.
NOTICE OF APPEAL OF Buck~ Gordon LLP
ADMINISTRATIVE SITE PLAN APPROVAL - 9 2025 FimAvenue. Suite 500
Y:\WP\ASE'SITE PLAN APPEALINOTICE OF SITE PLAN APPEAL 083106.IJOC Se~tt1e,WA9a121
(206) 382-9540
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EXHIBITC
Notice of Appeal of Appeal: Appeal of DNSM (by Misty Cove Association)
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CITY OF RENTON
JAN 1 2 2007
RECEIVED
CITY CLERK'S OFFICE 11""rt) Del-I v € RED J./~O),PM j...A.W.
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End CASE) and
Brad Nicholson re:
The Director's Administrative
InterpretationIPolicy Decision.
APPLICANT'S MOTION TO DISMISS
ASE AND NICHOLSON APPEALS OF
THE DIRECTOR'S INTERPRETATION!
POLlCY DECISION FOR LACK
OF JURISDICTION
I. RELlEF REQUESTED
13 Applicant Harvest Partners seeks an order from the Hearing Examiner dismissing the
14 appeals of Alliance for South End (ASE) and Brad Nicholson, dated August 31, 2006, of the
IS City of Renton's InterpretationIPolicy Decision dated July 17,2006. (Because the appeals
16 failed to include a particular case number in the caption, this motion also does not include a
17 case number. For reference purposes, however, the Lowe's approval, into which the
18 InterpretationIPolicy Decision was incorporated, is case number LUA-05-161, SA-H, SA-M,
19 ECF). The appeals should be dismissed as untimely and for lack of standing, as discussed
20 below.
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II. OVERVIEW
This case involves appeals of a routine administrative interpretation decision made by
the City of Renton' s Development Services Division. Although the City's interpretation
decision was made on July 17,2006, and although the City'S Interpretation/Policy Decision
was subsequently incorporated into an approval for Lowe's issued on August 8, 2006, the
appeals were not filed until the end of August, well past the expiration of the 14-day appeal
period. Contrary to their assertions in the appeals, neither appellant was entitled to special
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page IORIGINAL
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Seoond Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
notice of the administrative decision. Furthennore, both ASE and Nicholson lack standing to
2 bring these appeals, for the reasons set forth below.
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III. STATEMENT OF FACTS
A. City of Renton Issues Administrative Interpretation Decision
i. interpretation Decision relates to modification o/setbacks in UC-Ni zone.
On July 17, 2006, the City of Renton Development Services Division issued an
"InterpretationIPolicy Decision" (hereinafter the "Interpretation Decision") related to the
setback standards in the Urban Center-North 1 (UC-NI) zone of Renton.
As set forth in the Interpretation Decision, the Renton Municipal Code establishes
maximum setback requirements for the downtown commercial zones. In the UC·NI zone, the
maximum setback for front yards and for side yards along streets is five feet. RMC 4-2-120E.
In other commercial zones, the development standards include provisions allowing for
administrative modification of the maximum setback requirements during the site plan review
process. See, e.g, RMC 4-2-120A and -120C.15. However, the development standards for
the UC-NI zone are silent on the modification process.
As set forth in the Interpretation Decision, the City acknowledged that the
modification process for setbacks within the UC-NI zone should be consistent with the
modification process for setbacks within other commercial zones. Accordingly, the
Interpretation Decision penn its modification of the maximum setback requirements in the
UC-NI zone during the site plan review process, as long as specific criteria are met as set
forth in RMC 4-2-120C.15.
The Interpretation Decision establishes an appeal period of 14 days from the date of
the Interpretation Decision, pursuant to RMC 4-8-110. Therefore, the appeal period for the
Interpretation Decision expired on July 31,2006. Neither ASE nor Nicholson appealed
within that time frame.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 2 of 1-1
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
, ,
2. Hearing Examiner incorporates the Interpretation Decision in approvals of
the Lowe's development.
2 The Interpretation Decision was made in the course of the City's review of
3 development applications for the proposed Lowe's development in the UC-NI zone. I Lowe's
4 applied to the City for approval of its site plan, master plan, and environmental review. The
5 Lowe's site is a large site located directly east of the Applicant's proposed development, The
6 Landing. The Lowe's site plan contained setbacks that exceeded the maximum setback
7 requirements for the UC-NI zone, along both Garden Avenue N. on the west side of the
8 Lowe's site, and Park Avenue N. on the north side of the Lowe's site.
9 On July II, 2006, in preparation for a public hearing on the Lowe's plans, the City
10 mailed a "Preliminary Report to the Hearing Examiner" (the "Preliminary Report") to parties
11 of record in the Lowe's project. See Declaration of Stacy Tucker and Preliminary Report,
12 attached hereto as EXHIBIT A. The Preliminary Report includes a discussion of the setbacks
13 in the Lowe's site plan, and specifically references the Director's Interpretation Decision
14 permitting modification to the setbacks. See Ex. A, Preliminary Report at 8.
15 On July 18,2006, the City of Renton Hearing Examiner held a public hearing on the
16 Lowe's site plan, master plan, and environmental review. The Hearing Examiner's decision
17 (the "Lowe's Decision") incorporates the Interpretation Decision in its examination of the
18 proposed setbacks for the Lowe's portion of the UC-NI zone. See Lowe's Decision, August
19 8,2006, File No. LUA-05-161, SA-H, SA-M, ECF, attached hereto as EXHIBIT B and
20 incorporated herein by this reference. According to Finding 13 of the Lowe's Decision, "The
21 Director of Development Services issued a determination allowing larger setbacks without a
22 variance." The Hearing Examiner approved the proposed master plan and site plan for
23 Lowe's, without revision to the proposed setbacks. On August 8, 2006, the Lowe's Decision
24 was transmitted to all parties of record with the standard notice that the appeal periods were
25 running. See Ex. B, Lowe's Decision at 9.
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27 I The Renton Municipal Code authorizes the Planning/Building/Public Works Administrator to make
interpretations regarding the implementation of unclear or contradictory development regulations.
28 RMC 4-1-080.A.1,
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 3 of 1,/
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
· ,
Therefore, in the course of the Lowe's development review, Lowe's, and all parties of
2 record for the Lowe's project, were provided notice of the Interpretation Decision on two
3 different occasions -upon the mailing of the Preliminary Report, and upon the mailing of the
4 Lowe's Decision.
5 B. ASE Files Untimely Appeal and Lists Mr. Nicholson's Name on the Appeal
6 On August 31, 2006, approximately one month after the appeal period had expired for
7 the Interpretation Decision, and approximately three weeks after the Hearing Examiner had
8 issued approvals for the Lowe's development incorporating the Interpretation Decision, ASE
9 filed an appeal of the Interpretation Decision 2 ASE asserts that its appeal is timely based on
10 the date that ASE and Mr. Nicholson received "actual notice" of the Interpretation Decision.
II ASE Appeal at 3. Furthermore, the appeal makes only general assertions of standing for ASE
12 and Mr. Nicholson. ASE Appeal at 3·5.
13 Although Mr. Nicholson's name is included in the caption of the appeal, neither
14 Mr. Nicholson, nor an attorney for Mr. Nicholson, signed the appeal. Only Peter Buck, an
15 attorney with Buck & Gordon LLP, signed the appeal as "Attorneys for Alliance for the
16 South End." In addition, only ASE, not Mr. Nicholson, submitted a request for relief in the
17 "Conclusion" section of the appeal. ASE Appeal, at 9. Finally, only one filing fee was
18 submitted for the appeal, by the attorneys for ASE. See City of Renton's Motion to Dismiss
19 Appeal of Brad Nicholson of the Director's InterpretationIPolicy Decision. Neither
20 Mr. Nicholson, nor an attorney for Mr. Nicholson, submitted a filing fee for his supposed
21 appeal.
22 c. Corporate Status of ASE
23 ASE is a Washington non·profit corporation established in May 0[2006 by the
24 attorney for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall.
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27 2 ASE has also appealed The Landing's site plan approval, LUA·06·071 SA·A. Mr. Nicholson's name also
appears in that appeal. Because the appeals were not consolidated, the Applicant has filed separate motions to
28 dismiss each of the appeals.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 4 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
••
In May and June 2006, ASE filed appeals of the City's master plan approval for The Landing,
2 and the City's determination that The Landing was consistent with the adopted Planned
3 Action Ordinance. In the course of those appeals, and based upon ASE's official filings with
4 the Washington Secretary of State's office, the Applicant gathered the following facts related
5 to ASE's corporate status:
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• As of the date of the hearing on dispositive motions for those appeals, ASE had
only one named member, Brad Nicholson.
• Mr. Buck, an attorney whose law firm represents Westfield, served as ASE's
initial Director, President, Incorporator and Secretary.
• ASE replaced Mr. Buck with a new Director and President, Margaret Potter.
Ms. Potter is a former employee of Buck & Gordon, the firm representing
Westfield.
• Westfield is funding ASE's litigation.
• According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to the
15 Applicant on the eve of the hearing on ASE's previous appeals, ASE's members
16 had very limited rights overalL and had no rights whatsoever in terms of directing
17 the course of ASE's litigation. A copy of the excerpt from ASE's Bylaws is
18 attached hereto as EXHIBIT C and incorporated herein by this reference.
19 Based on these facts and standing jurisprudence, on September 5, 2006, the City of
20 Renton Hearing Examiner dismissed both of ASE's appeals for lack of standing. A copy of
21 the Hearing Examiner's decision is attached hereto as EXHIBIT D and incorporated herein by
22 this reference (the "Hearing Examiner Decision").
23 At a pre-hearing conference on this appeal, ASE was asked whether anything
24 pertaining to standing had changed. No additional information has been provided; therefore,
25 this motion is based on facts of record.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 5 of 1,/
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seatlle WA 96101-2925
206.623.1745; fax 206.623.7769
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IV. ARGUMENT
A. The Appeal Was Untimely.
1. Actual notice to ASE or Mr. Nicholson was not required.
ASE claims that its appeal is timely because ASE and Mr. Nicholson "did not have
actual notice of the decision until August 21, 2006." ASE Appeal at 2. ASE cites to no
provision in the Renton Municipal Code requiring actual notice of the Interpretation Decision
to ASE or Mr. Nicholson, nor any provision requiring public notice of the Interpretation
Decision. Indeed, no such requirements exist. Furthermore, under the Renton Municipal
Code, the time limits for appeals are established by the date the action was taken or the date of
the decision, not the date that an unrelated party received actual notice of the decision.
See, e.g., RMC 4-8-110.E.4(b).
ASE argues that it was entitled to actual notice ofthe Lowe's Interpretation Decision
based upon the fact that ASE is a party of record for The Landing project.] ASE Appeal at 2.
However, ASE's attempt to tie the Interpretation Decision to The Landing project is a thinly
veiled attempt to circumvent the untimeliness of its appeal. As stated above, the City issued
the Interpretation Decision as a result of a completely separate project, unrelated to The
Landing project. ASE attempts to gloss over this fact by failing even to include a case
number in the caption of the appeal. ASE's status as a party of record for The Landing
project has absolutely no bearing on whether ASE was entitled to notice of the Interpretation
Decision. Neither ASE nor Mr. Nicholson was entitled to receive actual notice of the
Interpretation Decision.
Furthermore, ASE claims that constitutional due process required that the City provide
ASE with notice of the Interpretation Decision, implying that as an "affected" party, such
notice was required. ASE Appeal at 2. Once again, ASE overlooks the fact that the
3 ASE does not claim in its appeal that Mr. Nicholson was also a party of record for The Landing at the
27 time the Interpretation Decision was issued. Therefore. to the extent that ASE's argument that it was entitled to
actual notice is based upon its status as a party of record, Mr. Nicholson has no ability to also raise this
28 argument.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 6 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
, .
Interpretation Decision was not made as part of The Landing's plan approval process, but
2 rather was a stand-alone interpretation made in the course of approvals for a project unrelated
3 to The Landing. The implication of ASE's argument, that the City anticipate and provide
4 actual notice of every administrative decision to every potentially "affected" party, regardless
5 of that party's relation to the decision, has no support in the Renton Municipal Code and is
6 clearly unreasonable.
7 Finally, it must be noted that the Lowe's site is a large site located directly east of The
8 Landing site in the same UC-NI zone. See site plans and zoning map, attached to the Lowe's
9 Decision at Ex, B. If ASE and Mr. Nicholson were truly interested in development and
10 impacts in the UC-NI zone, they would have been monitoring Lowe's to the same extent they
II were monitoring The Landing. Had ASE and Mr. Nicholson taken time to become parties of
12 record for the Lowe's project, they would have received actual notice of the Interpretation
13 Decision. See Tucker Decl., Ex, A; Lowe's Decision, Ex. B. But of course, ASE's and
14 Westfield's real motive here is economic rivalry against The Landing. The fact that ASE and
15 Mr. Nicholson did not receive notice of the l.owe's Interpretation Decision is a result of their
16 own inactions.
17 2. The appeal period had expired,
18 Regardless of which action related to the Interpretation Decision actually triggered the
19 time period for appeals, ASE's appeal was untimely. The City issued its Interpretation
20 Decision on July 17,2006. As an administrative decision, the appeal period runs for fourteen
21 days from the date the action was taken, thus the appeal period for the Interpretation Decision
22 expired on July 31,2006. RMC 4-8-IIO.E.4.b. ASE filed its appeal on August 31, 2006, one
23 month after the appeal period had run.
24 In the alternative, even if the appeal period was triggered by the date of the Hearing
25 Examiner's decision implementing the Interpretation Decision, that appeal period would have
26 begun on the date of issuance of the Lowe's Decision, August 8, 2006, and would have
27 expired fourteen days later, on August 22, 2006 -still well before ASE filed this appeal.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 7 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
, ,
The Renton Municipal Code does not provide for the tolling or extension of the time
2 limits within which to file an appeal from an administrative decision. The time limits for
3 appeals from administrative decisions are absolute. ASE's appeal was untimely, and should
4 be dismissed.
ASE Lacks Associational Standing. 5 B.
6 1. ASE has the burden to establish associational standing.
7 In order to appeal an administrative decision, an appellant must have standing.
8 RMC 4-8-110.E.3.b. A party asserting standing bears the burden of establishing the elements
9 of standing. Concerned Olympia Residentsfor the Environment (C.o.R.E.) v. City of
10 Olympia, 33 Wn. App. 677, 683, 657 P.2d 790 (1983). The appellant must demonstrate an
II injury in fact, and must also show that its allegedly endangered interest is within the "zone of
12 interest" to be protected or regulated. Trepanier v. City of Everett, 64 Wn. App. 380,382-83,
13 824 P .2d 524 (1992).
14 An association only has standing to bring suit on behalf of its members if its members
15 would otherwise have standing to sue in their own right. Int 'I Ass 'n of Firefighters,
16 Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). In detennining
17 whether associational standing exists, the U.S. Supreme Court has looked to whether the
18 alleged "members" ofan association possess certain "indicia of membership" in the
19 organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333, 344-45 (1977).
20 This "indicia of membership" analysis often turns upon whether the individuals
21 making up the association have the ability to guide the association's actions or exert control
22 over the association's directors. See, e.g, Friends of Tilden Park v. Dist. of Columbia,
23 806 A.2d 1201,1208 (D.C. 2002). By focusing on whether the association possesses the
24 "indicia of membership," courts are able to analyze whether the alleged "member" actually
25 has control, or is merely a puppet for other interests.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 8 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
-.
2. The Hearing Examiner previously held that ASE lacked
associational standing.
2 Applying the associational standing test to the first round of ASE appeals, the Renton
3 Hearing Examiner determined that ASE had not met its burden of proof to establish standing.
4 Hearing Examiner Decision at 8. The Examiner determined that Mr. Nicholson, the sole
5 named member of ASE, lacked any meaningful control in the organization. Hearing
6 Examiner Decision at 5. Therefore, the Examiner held, ASE failed in demonstrating
7 associational standing: "This office finds that ASE does not have standing. It is a mere shell
8 created by the applicant's potential competitor, Southcenter/Westfield for the purpose of
9 thwarting a competitor's proposed development." Hearing Examiner Decision at 8.
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3. ASE has presented no evidence that its member(s) have meaningful
control over ASE.
Despite requests by the City at the pre-hearing conference, ASE has not yet presented
evidence sufficient to meet its burden of proof. Indeed, as of the date ASE filed this appeal,
the evidence suggests that the facts have not changed since ASE's first round of appeals.
ASE is still funded and controlled by Westfield, and is still represented by Westfield's law
firm, Buck & Gordon. ASE has still provided evidence of only one alleged member, Brad
Nicholson. Based upon the only portion of ASE's Bylaws that it has provided, the two-page,
undated and unsigned "excerpt," its members' rights remain extremely restricted such that the
members are left with no meaningful control over the organization or the course of this
litigation.
The Examiner must determine if ASE has carried its burden to establish associational
standing based on the evidence provided in the record. ASE has failed to produce any new
evidence to support its associational standing. There remains no evidence whatsoever that
ASE is controlled by a member with standing.
4. ASE has not met its burden to show injury infact.
Even if ASE was able to demonstrate that it had associational standing to bring this
appeal on behalf of its members, the association also bears the burden of establishing that its
members, if any, meet the elements of standing.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 9 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
-.
Here, ASE has also failed to demonstrate that its members suffer an injury in fact.
2 While the ASE appeal contains general assertions of injury, it does not contain supporting
3 evidentiary facts to establish a specific, concrete injury to its members,4 Mr. Nicholson is the
4 only known member of ASE, yet ASE has fallen far short of its burden of establishing that
5 Mr. Nicholson has standing. As detailed in Part C.2 below, neither ASE nor Mr. Nicholson
6 has presented evidence to demonstrate that Mr. Nicholson has suffered or will suffer a
7 concrete, particularized injury. By failing to present any evidence of injury in fact to its
8 member, ASE has failed to establish standing.
9 C.
10
Mr. Nicholson Is Not a Proper Party.
1. Mr. Nicholson has not perfected an appeal.
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If Mr. Nicholson intended to appeal the Interpretation Decision, the appeal filed by
ASE was inadequate to also serve as Mr. Nicholson's appeal. Analogous court rules make
clear that all pleadings, including appeals, should include the names, addresses, and
Washington State Bar Association membership numbers of the attorneys for each party, if
any, and should be signed and dated by the attorneys or the parties. See, e.g., RAP 5.3,18.7;
see also CR 11.
Here, although Mr. Nicholson's name is listed in the caption ofthe appeal, there is no
signature block for Mr. Nicholson or his attorney. The appeal only contains the signature of
the attorney for ASE. The "Conclusion" in the appeal, in which ASE submits its specific
request for relief, omits Mr. Nicholson's name as well. Finally, only ASE paid the filing fee
for the appeal; Mr. Nicholson did not pay a filing fee.
Without a signature by Mr. Nicholson or on Mr. Nicholson's behalf, without a specific
request for relief from Mr. Nicholson, and without a filing fee paid by Mr. Nicholson, there is
no evidence to suggest that Mr. Nicholson or his attorney approved of the appeal, or intended
to file this appeal at all. Indeed, the absence ofMr. Nicholson's personal seal of approval
4 The appeals should be dismissed on the basis of the pleadings and undisputed facts; however, movant
28 hereby reserves the right to request discovery based on any responses that ASE or Mr. Nicholson may file.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 1 () of 14
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seallie WA 98101·2925
206.623.1745; fax 206.623.7789
~ .
anywhere in this appeal, whether by signature, request, or payment of the fee, can only lead
2 one to the conclusion that Mr. Nicholson, the sole named member of ASE, did not perfect an
3 appeal. It is also further evidence that he is not in control of this litigation.
4 In addition to the arguments set forth above, the Applicant joins in the City of
5 Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's InterpretationIPolicy
6 Decision for Lack of Jurisdiction Due to Nicholson's Failure to Perfect his Appeal, which
7 motion is incorporated herein by this reference.
8 2. Mr. Nicholson lacks standing to bring this appeal.
9 Even if ASE's sole signature on the appeal and ASE's payment of the filing fee is
10 deemed sufficient to constitute a separate appeal for Mr. Nicholson, Mr. Nicholson
11 nevertheless lacks standing to bring this appeal.
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a. Appellants must establish standing as to the Interpretation Decision.
Standing must be established as to each and every claim. See DaimlerChrysler
Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) CThe standing inquiry requires careful judicial
examination ofa complaint's allegations to ascertain whether the particular plaintiff is entitled
to an adjudication of the particular claims asserted,") Therefore, it is important to first
identifY the particular claims in the appeal, and then determine whether the appellant has
presented evidence sufficient to establish standing for each of those claims.
This appeal is not an appeal of The Landing development, nor is it an appeal of any
development approval related to The Landing project. Rather, this is an appeal of an
interpretation decision made by the City 0 r Renton, relating to the ability to modify setbacks
in a particular zone via the administrative site plan review process. Therefore, in order to
establish standing, ASE and Mr. Nicholson must demonstrate that they have suffered or will
suffer a direct, concrete, particularized injury in fact arising out of this Interpretation
Decision.
Here, there is no relationship between Mr. Nicholson and the challenged action such
that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page II of!.J
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
, ,
he possibly assert, that he is directly damaged in any way by the Interpretation Decision, or by
2 the resulting ability for the City to modify setbacks via the administrative process. The
3 supposed basis for Mr. Nicholson's standing is simply too remote and indirect to establish
4 standing.
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b. Mr. Nicholson has not met his burden to show injury infact.
To establish standing, ilie appellant bears the burden of demonstrating that he will be
specifically and perceptibly harmed by the challenged action; in other words, the appellant
must show a "direct stake" in the controversy. See C.o.R'£', 33 Wn. App. at 684. When
alleging a threatened injury, the appellant must present sufficient evidentiary facts to show
that a threatened injury is "immediate, concrete, and specific to him or herself. If the injury is
merely conjectural or hypothetical, there can be no standing." Trepanier, 64 Wn. App. at 383.
A mere assertion of injury, without factual support, is not sufficient to demonstrate an injury
in fact. ld. at 384.
The requirement that the appellant demonstrate his "direct stake" in the controversy
consequently means iliat generalized grievances are insufficient to establish standing. Courts
have consistently held that there be a particularized injury, specific to the appellant:
It is an established principle ... that to entitle a private individual to invoke the
judicial power to determine ilie validity of executive or legislative action he
must show that he has sustained or is immediately in danger of sustaining a
direct injury as the result ofiliat action and it is not sufficient iliat he has
merely a general interest common to all members ofilie public.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992), quoting Ex parte Levitt,
302 U.S. 633 (1937).
Here, Mr. Nicholson fails to present any evidentiary facts to show that he suffers an
injury that is immediate, concrete, and specific to himself as a result of the Interpretation
Decision. Mr. Nicholson presents no evidence whatsoever of his "direct stake" in the
Interpretation Decision and makes no specific claims of actual or threatened injury to his
person or property arising out of the Interpretation Decision.
Motion to Dismiss Appeals of
interpretation/Policy Decision -Page 12 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
· .
Instead, Mr. Nicholson relies on generalized assertions of injury that could be raised
2 by any citizen of the City or. indeed. any member of the public. For example, Mr. Nicholson
3 claims he is injured by his "inability to comment, participate, and voice objections to the
4 City," and by the City's "denial of his rights" to a "community planned and development
5 consistent with" the Renton Comprehensive Plan. ASE Appeal at 5. Such abstract statements
6 have no direct link to the source of the appeal-the City's decision related to modification of
7 setbacks in the UC-Nl zone -and such generalized grievances have no direct link to
8 Mr. Nicholson. These assertions are wholly inadequate to establish standing as to this claim.
9 Mr. Nicholson is not a proper party to this appeal. However, even ifMr. Nicholson is
10 deemed a party, he has not met his burden of proof to establish standing. The Applicant
11 respectfully requests that the Examiner dismiss the appeal from the City of Renton's
12 Interpretation Decision as to Mr. Nicholson.
13 V. CONCLUSION
14 The Renton Municipal Code and Washington law require timely appeals of land use
15 decisions. Where, as here, an appeal is brought after the appeal period has expired, the appeal
16 must be dismissed. The parties to an appeal must have standing as to each and every claim
17 asserted in their appeal. ASE has the burden of proof to demonstrate its associational
18 standing. ASE has failed to demonstrate that it has suffered an injury in fact. Because ASE
19 has failed to carry its burden, its appeal must be dismissed.
20 Mr. Nicholson, as a purported appellant, must have standing in his own right and must
21 perfect his appeal by following the rules. Mr. Nicholson's failure to sign the appeal, and
22 Mr. Nicholson's failure to pay a filing fee, suggest that Mr. Nicholson had no intent to file
23 this appeal. By failing to file a proper appeal, Mr. Nicholson is not a party to this appeal.
24 Furthermore, Mr. Nicholson only asserts generalized grievances without any evidence of
25 particularized harm arising out of the Interpretation Decision, and thus has not established that
26 he has standing to bring this appeal. Mr. Nicholson's appeal must therefore be dismissed.
27 1/
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 13 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seatlie WA 98101·2925
206.623.1745; fax 206.623.7789
· .
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For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
of Renton's Interpretation Decision should be DISMISSED.
,',111
DATED this Q day of January, 2007.
#341956 18449-004 7b%sO Il.doc IIt2/07
HILLIS CLARK MARTIN &
PETERSON, P.S.
BY __ +-~~~~~~~~~r-
Jerome L. Hil s, WSBA #1704
T. Ryan Dur an, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 14 of 14
HILLIS CLARK MARTIN &
PETERSON. P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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1
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeal of
Alliance for South End (ASE) and
8 Brad Nicholson re: DECLARATION OF STACY TUCKER
9 The Director's Administrative
10 Interpretation/Policy Decision
1' ________________________ ~
12
13 STACY TUCKER, hereby declares under penalty of perjury pursuant to the laws
111
of the State of Washington that the following is true and correct:
15
16 1. I am a citizen of the United States of America, a resident of the State of
11 Washington, over the age of eighteen (18) years, not a party to the above-entitled
18 action, competent to testify to the facts set forth herein, and I make this declaration
19 based upon my personal knowledge.
20 2. I am currently employed by the City of Renton in the Development Services
21
Division. My job title is Secretary I. I have held this position since April, 2004.
22
23
3. Attached hereto is a true and correct copy of the Affidavit of Service by
211 Mailing that I signed on July 11, 2006, stating that I sent to the listed parties of record,
25 in a sealed envelope via the mails of the United States, a copy of the Preliminary
26 Declaration of Stacy Tucker - 1
21
28
EXHIBIT _A:..--
WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
[00 !5OUTH SECONO STRUT • POST omCB BOX 6Ui
RENTON. WASHINGTON 9IIOS7
PHONE 142\) in-ll678 • fAX 14U) H'ii_U?4
1 Report to the Hearing Examiner in the project known as Lowe's of Renton, Project No.
2
LUA-05-161,SA-H, SA-M, ECF,
3
EXECUTED at Renton, Washington, this 11'" day of January, 2007.
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28 Declaration of Stacy Tucker -2
WARREN BARBER t'J FONTES, P.S.
ATTORNEYS AT LAW
100 SOlJTH S£COND STREET • POST OFfICB .ox Oleo
RtrorroN. WMHlNOTON 9I!J057
PHONE {O'>I l5'i.fl67& • """" ("~51155.S47"
.---'\
~ . '-. ... -'
CITY OF RENTON
CURRENT PLANNING DIVISION
AFFIDAVIT OF SERVICE BY MAlUNG
On the 11'" day of July. 2006. I deposited in the mails of the United States. a sealed envelope
containing Prellmlnary Report to the Hearing Examiner documents. This Information was sent to:
Name
Mike Neer. PACLAND
Jim Manion. Lowe's HIW
Dash -80, L.P.
(Signature ofSender)~d ~
STATE OF WASHINGTON
) SS
COUNTY OF KING )
Contact
Applicant
Owner
I certify that I know or have satisfactory evidence that Stacy Tucker
sentlna
signed this instrument and acknowledged it to be hislherltheir free and voluntary act for the uses and
purposes mentioned in the instrument. ,
Dated: 7-ll-0(,
for the State
Notary(PrtnQ~~~~~~~~~~~ __ ~~~~~
My appointment expires: '0) -~ q -\ 0
Lowe's of Renton
LUA05-161, SA-H, SA-M, ECF
PUBLIC
HEARING
City of Renton
Department of Planning / Building / Public Works
PRELIMINARY REPORT TO THE HEARING EXAMINER
A. SUMMARY AND PURPOSE OF REQUEST:
Public Hearing Date:
Project Name:
Owner::
Applicant:
Contact:
File Number:
Project Description:
Project Location:
July 1S, 2006
Lowe's of Renton
Dash-80, L.P., 440 N. 1st Street, Ste. 200, San Jose, CA 95112
Jim Manion, Lowe's HIW, 1530 Faraday Ave., Ste.140, Carlsbad, CA 9200S
Mike Neer, PACLAND, 11235 SE 6th St., Ste. 220, Bellevue, WA 98004
LUA-05-161, SA-H, SA-M, ECF Planner: Jill K. Ding, Senior Planner
The applicant is requesting Environmental (SEPAl review, Master Plan and Site
Development Plan approvals for a Lowe's Home Improvement retail store totaling
129,342 sq ft, with a garden area totaling 26,222 sq ft and 411 parking spaces. The
site would total 9, 7S-acres after the approval of a proposed short plat (LUA06-080l
and is zoned Urban Center North-1 (UNC-1l. The property is located al800 Garden
Ave. N at southeast corner of the intersection of Park Ave. N and Garden Ave. NE.
800 Garden Ave. N
· .
City of Renlon PIBIPW Deportmenl
LOWE'S OF RENTON
Preliminary Report 10 Ihe Hearing Exemifl6(
LUA45-161, SA-H, SA-M, ECF
PUBLIC HEARiNG DATE: July 18, 2006 Page2of13
B, EXHIBITS
The following exhibhs are entered into the record:
Exhibit NO.1: Yellow file containing: application, proof of posting and pUblication, environmental
review and other documentation pertinent to this request.
Exhibit No.2: Neighborhood Map.
Exhibit NO.3: Preliminary Grading and Drainage Plan (dated 1/31/2006).
Exhibit No.4: Preliminary Utilities Plan (dated 1/3112006).
ExhibH No.5: Preliminary Landscape Plan (dated 1/17/2006).
Exhibit No.6: Exterior Elevations (dated 3/1/2006).
Exhibit NO.7: Floor Plan (dated 311/2006).
Exhibit No.8: Zoning Map, Sheet E4 west Y, (dated 2116/2006).
C, GENERAL INFORMA nON:
1. Owner of Record: Dash-80, L.P., 440 N. 1st Street, Sle. 200, San Jose, CA 95112
2. Zoning Designation: Urban Center North - 1 (UNC-l)
3. Comprehensive Plan Urban Center -North
Land Use Designation:
4. Existing Site Use: Vacant (abandoned Boeing parking lot)
5. Neighborhood Characteristics
North:
East:
South:
West:
6. Access:
7. Site Area:
8. Project Data:
Existing Building Ansa:
New Building Area:
Total Building Area:
Boeing property -Urban Center North-2 (UNC-2) and Industrial-
Heavy (I-H)
Burlington Northern Railroad -Heavy Industrial (IH)
Fry's Electronics -zoned Urban Center North-l (UNC-l)
Boeing property-zoned Urban Center North-, (UNC-l)
Via Garden Ave. N from a joint driveway access shared with Fry's
Electronics
9.78 acres after the recording of a proposed short plat being reviewed
under a separate application (LUA06-080)
Area comments
NIA N/A
129,342 sq ft st(){e and 26,222 sq ft garden center
129,342 sq ft + 26,222 sq ft = 155,564 sq ft N/A
D. HISTORICAUBACKGROUND:
Action
Zoning
Comprehensive Plan
Annexation
Land Use File No.
N/A
N/A
N/A
Ordinance No.
5100
5099
1793
Date
111112004
11/112004
911511959
E. APPLICABLE SEC nONS OF THE DEVELOPMENT REGULA TIONS (RMC nTLE IV):
1. Chapter 2 Land Use Districts
HEX staff rpl 05-161.doc
City of Renton P/BIPW Departmenl
LOWE'S OF RENTON
Preliminary Report 10 /he Hoaring Examiner
LUA-65-161, SA-H, SA-M, ECF
PUBUC HEARING DATE: July 18, 2()Qfl
Section 4-2-020: Purpose and Intent of Zoning Districts
Section 4-2-070: Zoning Use Table
Section 4-2-120,E: Commercial Development Standards
2. Chapter 3 Environmental Regulations and Special Districts
Section 4-3-050: Critical Areas Regulations
3. Chapter 4 Property Development Standards
Section 4-4-030: Development Guidelines and Regulations -General
Section 4-4-070: Landscaping Regulations
Section 4-4-080: Parking, Loading, and Driveway Regulations
Section 4-4-090: Refuse and Recyclables Standards
Section 4-4-095: Screening and Storage Height/Location Limitations
4. Chapter 6 Streets and Utility Standards
5. Chapter 9 Procedures and Review Criteria
Section 4-9-200: Site Plan Review
6. Chapter 11 Definitions
F. APPLICABLE SECTIONS OF THE COMPREHENSIVE PLAN:
1. Land Use Element
G. DEPARTMENT ANAL YSIS:
1. PROJECT DESCRIPTION/BACKGROUND
Page 30'13
The project site is within a portion of the area zoned Urban Center North-l (UNC-l) that was created
subsequent to The Boeing Company's surplussing of several historical parking and building areas
associated wHh its Lake Washington facllijies. The south portion of the project site is currently developed
with Fry's Bectronics and associated parking and landscaping improvements. The north portion of the
project sHe is currently vacant, but is completely paved, with lighting and drainage improvements. The
proposal would include a new retail store of approximately 129,342 sq ft, an associated garden center of
approximately 26,222 sq ft, 411 surface parking stalls, and associated infrastructure such as landscaping.
water, sewer. and stormwater facilities, The site currently has access from Garden Ave N and Houser
Way. The proposed development would provide two commercial driveways onto Garden Ave N, the
soutlhern driveway would be a joint use driveway shared with Fry's Electronics. One driveway onto Houser
Way N would also be provided.
The project site area currently totals 21,37 acres, however a short plat is being reviewed for the site under
a separate application (LUA06-080). The purpose of the short plat is to segregate the Lowe's site and any
associated parking improvements from the existing Fry's site. Once the proposed short plat is approved
and recorded, the Lowe's site would total 426.333 sq. ft. or 9.78 acres In area.
The project will require removal of approximately 5,000 cu yd of asphalt (parking lot pavement).
Approximately 20,000 cu yd of onsite soil material will be regraded, and approximately 10,000 cu yd of
gravel will be imported to construct the sub-base below the proposed building and new parking lot areas.
The sne is served by City of Renton water and sewer, which would be extended as necessary to serve the
proposed development. Storrnwater runoff from the site currenUy drains to existing catch baSins on the
western side of the site. which ultimately discharges to the public storm water system in Garden Ave. N.
The proposal includes construction of an onsite stormwater collection system for the parking areas that
will be filtered prior to offsite discharge, and a rooftop runoff collection system that will bypass the water
quality system.
No trees, and no weHands or other environmentally sensitive areas, are located on the site. The proposal
includes perimeter and interior landscaping of street frontages and parking lots.
HEX staft rpl 05-161.doc
City of Renton PIIWW Department
LOWE'S OF RENTON
Preliminary Report to the Hearing Examiner
LUA-05-161, SA-H, SA-M, ECF
PUBLIC HEARING DATE: July 18, 2006 Page 40f 13
2. ENVIRONMENTAL REVIEW
Pursuant to the City of Renton's Environmental Ordinance and SEPA (RCW 43.21 C, 1971 as amended),
on June 27, 2006, the Environmental Review Committee issued a Determination of Non-Significance,
Mitigated for the project. The DNS-M included 6 mitigation measures. A 14-<1ay appeal period commenced
on June 30, 2006 and ended on July 14, 2006. As of the date of this staff report, no appeals of the
threshold determination were filed.
3, ERC MITIGATION MEASURES
Based on an analysis of probable impacts from the proposed project, the following m~igation measures
were issued for the Determination of Non-Significance -Mitigated:
1. The project shall be designed to comply with the Department of Ecology's (DOE) Erosion and
Sediment Control ReqUirements, outlined in Volume II of the 2001 Stormwater Management Manual.
Erosion and sediment control measures shall be installed and maintained to the satisfaction of the
representative of the Development Services Division for the duration of the project's construction.
2. The applicant shall comply with the recommendations of the geotechnical engineering report prepared
by GeoEngineers, Inc., dated January 26, 2006, regarding earthwork and soil compaction, design of
foundations, floor slabs and retaining walls, structural fill, drainage, paving, and utilities.
3. The pilings to be located along Garden Avenue N shall be augercast piles or driven steel pipe piles
that extend through the liquefiabJe!compressible upper alluvial deposits and bear on the lower alluvial
deposits to protect the stormwater pipe.
4, The project shall be designed to comply with the 2001 Department of Ecology Stormwater
Management Manual for water quality.
5. The applicant shall pay a Transportation Mitigation Fee of $85,837.50 for the proposed 3,815 new
average daily trips that will be generated by the proposed development. Fees are subject to change
and are payable prior to the issuance of a building permit.
6. The applicant shall pay a Fire Mitigation Fee of $0.52 per square foot, for a current estimated total of
$75,420.80. Fees are subject to change and are payable prior to the issuance of building permits.
4. STAFF REVIEW COMMENTS
Representatives from various city departments have reviewed the application materials to identify and
address site plan issues from the proposed development. These comments are contained in the official
file, and the essence of the comments has been incorporated into the appropriate sections of this report
and the Departmental Recommendation at the end of the report.
5. CONSISTENCY WITH MASTER PLAN APPROVAL CRITERIA
The UNC-1 zoning of the development site triggers a requirement to prepare a Master Plan per RMC 4-9-
200 A 1, to be approved prior to or concurrent with Site Plan Approval. RMC 4-9-200A 1. states that "The
purpose of the Master Plan process is to gUide phased planning of development projects with multiple
buildings on a single large s~e. The Master Plan is required to demonstrate how the major elements of a
development are proposed on the site at sufficient detail to demonstrate the overall project concept. In
addition, the Master Plan must illustrate how the major project elements, combined, create an urban
environment that implements City goals. An additional purpose is to allow consideration and mitigation of
potential impacts that could result from large-scale site and facility development, and to allow coordination
with City capital Improvement planning."
HEX staff <pI 05-161.doc
city of Renlon PIBIPW Department
LOWE'S OF RENTON
PUBUC HEARING DATE: July 18. 2006
Preliminary Report to thfl Hearing Examiner
LUA-45-161, SA-H, SA-AI; ECF
Page 50113
The following criteria are required to be met through the Site Plan and Master Plan Review Process,
consistent with RMC 4-9-200E.2.:
(A) The plan Is consistent with a Planned Action Ordinance, if applicable.
Not applicable, there was no Planned Action Ordinance for the subject property.
(8) The plan creates a compact, urban development that Includes a compatible mix of uses that
meets the Comprehensive Plan vision and polley statements for the Urban Center North
Comprehensive Plan designation.
The proposed development would result in the construction of a 129,342 square foot retail building with a
26,222 square foot garden center and 411 parking stalls. The proposed project would Implement the
Comprehensive Plan vision and Urban Center North policy statements as the project would result in the
creation of additional retail space on a currently vacant parcel and would also result in the crealion of
additional jobs. See further discussion below under Conformance with the Comprehensive Plan, its
Elements and Policies.
(Cl The plan provides an overall urban design concept that is internally consistent, and provides
quality development.
The proposed Lowe's design provides an urban design concept that is intemally consistent through the
use of modulation and articulation in the building deSign, landscaping, and a pedestrian connection to
Garden Avenue N. The proposed site plan also provides a pedestrian and vehicular connection to the
Fry's site, which is south of the proposed Lowe's development.
(D) The plan incorporates public and private open spaces to provide adequate areas for passive
and active recreation by the occupants/users of the site, and/or to protect existing natural
systems.
The proposed Lowe's site plan incorporates public and private open spaces through the provision of
pedestrian connections within the site and around the site within the Garden Avenue N public rig,t-of-way.
The proposed pedestrian spaces would be landscaped with a combination of trees, shrubs, and
groundcover as shown on the submitted landscape plans.
(El The plan provides view corridors to the shoreline area and Mt. Rainier where applicable.
There are not views of any designated shorelines from the subject property. The proposed building would
not obstruct any potential views of MI. Rainier.
IF) Public access is provided 10 waler and/or shoreline areas;
Not applicable, the site does not abut any water or shoreline areas.
HEX staff rpl 05-161.doc
· .
City of RBnfon PIBIPW Oeparlment
LOWE'S OF RENTON
PUBLIC HEARING DATE: July 18, 201)6
ProNmlnary Report to the ,*,aring EXamiflBr
LUA-05-161, SA-H, SA-M, ECF
Page 60(13
(G) The plan provides distinctive focal points such as public area plazas, prominent architectural
features, or other Items
The site plan provides focal points through the use of prominent arohilectural features Ihat are utilized to
distinguish building entrances as well as to break up the monotony of large blank walls. In add"lon a
landscaped walkway is proposed through the center of the parking lot running from the north end of the lot
to the south end of the lot where it WQuld eventually connect 10 the Fry's parking lot.
(H) Public andlor private streets are arranged In a layout that provldll$ reasonable access to
property and supports the land use envisioned
Not applicable, there are no proposed streets within the sile.
(I) The plan accommodates and promotes tranSit, padll$trlan, and other alternative modes of
transportation.
The plan accommodates potential pedestrians through the provision of a pedestrian connection from the
sidewalk that will be constructed along Garden Avenue N to the building entrance. Transit riders would be
accommodated through an existing bus stop located at the northwest corner of the property at the
intersection of Garden Avenue N and Park Avenue N.
(J) The plan confonns to the approved conceptual plan required by development agreement for
the subarea In question, If applicable.
Not applicable.
(K) The plan confonns with the Intent and the mandatory elements of the dll$ign guldellnll$
located in RMC 4-3-100. The Master Plan clearly identlfill$ the urban design concept for each
district enunciated In the Urban Center North Comprehensive Plan policies.
The proposed Lowe's site plan is located outside of Ihe districts to which the design guidelines are
applicable. The proposed sile plan complies with the Urban Center North Comprehensive Plan policies;
see further discussion below under Conformance wilh the Comprehensive Plan, its Land Use Element &
Policies.
(L) The proposed interconnected circulation network must demonstrate the function and location
of required circulation elements required in RMC 4-3-100.lnt8rnal or local roads shall provide
adequate edges and buffers 10 parking lots. A sufficient number of pedll$lrian-oriented streets are
dll$lgnated to implement the vision for each district In the Urban Center North Comprehensive
Plan dll$lgnalion.
No inlernal access roads are proposed with Ihe development. In addition, the site is located outside of the
districts which are regulated under RMC 4-3-100, therefore the circulation elements of that section are not
required.
HEX sial! rpt 05-t 6t .doe
City of Renton P/BIPW Deparlmenl
LOWE'S OF RENTON
Prellminmy R&poff 10 the Hearing examiner
LUA-OS-161, SA-H, SA-M, ECF
PUBUC HEARING DATE: July 18, 2006 Psge 7of13
(M) Gateways are designated consistent with the Comprehensive Plan and conceptual plans for
the gateway demonstrate the design concept for gateway treatment and Identify significant
gateway features to be provided.
Not applicable, no gateways are proposed or required for this project.
(N) The Master Plan includes a sequencing element that explains what phases of the Master Plan
will be built-out first, and In what order the phases will be built, and an estimated time frame.
The proposed site plan would not be constructed in phases; therefore a sequencing element is not
applicable.
5. CONSISTENCY WITH SITE PLAN APPROVAL CRITERIA
As per RMC 4-9-200.E. the Reviewing Official shall review and act upon s~e plans based upon
comprehensive planning considerations and the following criteria. These criteria are objectives of good
site plans to be aimed for in development within the City of Renton. However. strict compliance with any
one or more particular criterion may not be necessary or reasonable. These criteria also provide a frame
of reference for the applicant in developing a site. but are not intended to be inflexible standards or to
discourage creativity and innovation. The site plan review criteria include. but are not limited to, the
following:
(A) CONFORMANCE WITH THE COMPREHENSIVE PLAN. ITS ELEMENTS & POLICIES
The Comprehensive Plan Land Use Map designation for the project property is Urban Center North. The
purpose of the UC-N is to redevelop industrial land for new office, residential, and commercial uses at a
sufficient scale to implement the Urban Centers criteria adopted In the Countywide Planning Policies. This
portion of the Urban Center is antiCipated to attract large-scale redevelopment greater than that in the
Urban Center-Downtown, due to the large available land holdings under single ownership. In addition, this
new development is expected to include a wider group of uses including remaining industrial activities,
new research and development facilities, laboratOries, retail integrated into pedestrian-oriented shopping
districts, and a range of urban-scale mixed-use residential, office and commercial uses.
The following Comprehensive Plan policies are applicable to the proposal:
land Use Element
Policy LU-212. Support uses that serve the region, a sub-regiona/, or citywide market as well as
the su"ounding neighborhoods. The proposed Lowe's development would at a minimum provide
a use that would serve the surrounding neighborhood and possibly a larger citywide market.
Policy LU-282. Fully integrate signage, building height, bulk, setbacks, landscaping, ancl parking
considerations in structures and site plans across the various components of each proposed
development. The submitted master site plan and site plan materials incorporate signage
elements. building height, bulk, setbacks, landscaping, and parking eiements. Each of these
elements wiil be reviewed to ensure compliance with City standards.
Policy LU-283. Require significant peciestrian elements in internal sile circulation plans. The
proposed development includes a landscaped pedestrian walkway through the center of the
parking lot, which would connect to the Fry's site located to the south, In addmon, a pedestrian
connection would be provided from the sidewalk on Garden Avenue N to the entrance of the
proposed Lowe's building.
HEX staff rpt 05-161._
CIIy of Renton P/BIPW Department
LOWE'S OF RENTON
PUBLIC HEARING DATE: July 18, 2006
Prellmlna/)' Reporl to the Hearing Ex/Jl7liner
LUA-05-161, SA-H, SA-M, ECF
Page 80113
Policy LU-2B7, Discourage parking lots between structures and street right-of-way. No parking
lots are proposed between the proposed structure and the public right-of-way.
Policy LU-30B, Support surface parking lots behind buildings, and In the cantar of blocks,
screaned from the street by structures with landscape buffers. The proposed surface parking lot
would be located in front of the proposed building; however the lot would be located at the center
of the block and would not be located between the building and the public street. A landscape
plan was submitted with the application materials. The parking lot would be screened with
Autumn Flame Maple trees and a variety of shrub species.
(B) CONFORMANCE WITH LAND USE REGULATIONS
The subject site is zoned Urban Center -North 1 (UC-Nl). The UC-N zones were established to
provide an area for pedestrian-scale mixed-use development that supports the residential and
employment goals of Renton's Urban Center -North. The UC-Nl zone is intended to attract new
retail, office, and technology-related uses that co-exist with continued airplane manufacturing in
the short run, but provide a standard of development that stimulates further investment and
transition of uses in the longer term. Large-scale retail uses are allowed as anchors, which, when
combined with smaller pedestrian-oriented development, create a quality regional retail area.
Development Standards
Lot Coverage -The maximum building lot coverage in the UC-Nl zone is 90% of the total lot
area. The building footprint of the proposed Lowe's is 129,342 sq. ft. and the garden center is
26,222 sq. ft. for a total of 155,564 sq. ft. on the 426,333 sq. ft. site results in a 36.5 percent lot
coverage. The project is in compliance with this reqUirement.
Setbacks -The UC-Nl zone requires a minimum front yard and side yard along a street setback
of 0 feet and a maximum front and side yard along a street setback of 5 feet. However, the
Director of Development Services issued a Determination, which states that the maximum front
yard and side yard along street setbacks may be altered through the Site Plan Review Process
without the need for a variance, which would be consistent with maximum setback requirements
applicable in other commercial zoned w~hin the City of Renton. Due to the 20 foot wide easement
located along Garden Avenue N and the 30 foot wide easement located along Park Avenue N, it
is not possible for the proposed Lowe's building to comply with the maximum front and side yard
along a street satback requirements. Therefore, the proposed 15 foot 8 inch front yard setback
and the minimum 30 foot side yard along a street setback as shown on the submitted site plan are
approved.
Landscaping -The UC-Nl zone requires that all setback areas from a public street be
landscaped and that truck docking and loading areas be screened from pUblic streets. The City's
parking regulations have additional landscaping requirements. The minimum amount of
landscaping required for parking lots with 100 or more stalls is 35 sq. ft. per parking space.
Where surface lots abut a public right-of-way a minimum 5-foot landscaped strip shall be installed
between the parking lot and the public street. Street trees shall be installed within the landscape
strip at a rate of 1 tree for every 30 feet of lineal frontage. Within the parking area a minimum of 1
tree shall be planted for every 6 parking spaces provided, shrubs shall be planted at a rate of 5
per 100 sq. ft. of landscape area, ground cover shall be planted in sufficient quantities to provide
90 percent coverage within the first 3 years of installation, and no more than 50 feet shall separate
a parking space from a landscape area.
The submitted conceptual landscape plan proposes to landscape all setback areas. Along
Garden Avenue N a landscape strip is proposed, which ranges in width from 11 feet along the
surface parking lot to 15 feet where the proposed building would be constructed. Street trees are
proposed within the landscape strip at a spacing of 30 feet on center and would consist of Autumn
Flame Maple. Additional shrub and ground cover speCies are proposed to further vegetate the
landscape strip along Garden Avenue N and would provide screening of the building and the
surface parking lot from Garden Avenue N. A landscape strip is also proposed along Park
Avenue N and would consist largely of Austrian Black Pine and Weeping Alaskan Cedar, which
would serve to screen the proposed loading and docking area from Park Avenue N. The parking
HEX staff rpt 05-161.000
•
. .
City of Renton PIBIPW Department
LaINE'S OF RENTON
PUBLIC HEARING DATE: July 18, 2006
Preliminary Report to the Hearing Examiner
LUA-Ofi.161, SA-H, SA-M, ECF
P"II" 9 of 13
lot would be landscaped with trees consisting of a mix of Chanticlear Flowering Pear, Columnar
Sargent Cherry, and 'Worpelsdon' American Sweetgum and a variety of shrubs and ground cover.
Staff has reviewed the submitted conceptual landscape plan. The proposed landscaping along
Park Avenue N, would adequately screen the truck docking and loading areas from Park Avenue
N. which is in compliance with the City's screening requirements for docking and loading areas.
However, staff has concerns with proposed landscaping to be installed along Garden Avenue N
due to the presence of a 72-inch stormwater discharge pipe beneath the proposed landscape
strip. Staff is unsure if the proposed landscaping would pose a threat to the stormwater pipe. In
addition, it appears that the proposed street trees have spreading low branches, which may
indicate that the species is not a suitable tree to be located adjacent to a public sidewalk.
Therefore. staff recommends as a condition of approval that the applicant provide information
regarding the proposed landscaping, which would ensure the pipe would not be damaged and that
the proposed Autumn Flame Maple is a suitable street tree or that a revised landscape plan be
submitted proposing landscaping that will not damage the stormwater pipe. This shall be
submitted to the Development Services Division project manager for review and approval prior to
the issuance of a building perm it.
Within the parking area, a total of 411 parking spaces are proposed. which would require a
minimum of 14,385 square feet of landscaping within the parking 101 (35 sq. ft. x 411 spaces =
14,385 sq. ft.) with 69 trees and 751 shrubs. The applicant's landscape analysis indicates that a
total of 15,013 square feet of landscaping is proposed within the parking lot with a total of 77
trees, which complies with the minimum landscaping and tree requirements. Staffs review of the
landscape plan indicated that approximately 641 shrubs are proposed within the parking area,
which is less than the minimum 751 required. Therefore, staff recommends as a condition of
approval that a revised landscape plan be submitted with the building permit application showing
the minimum 751 shrubs required within the parking area.
All landscaped areas must be fully irrigated. At the time of building permit submittal a detailed
landscape plan with species identified must be submitted along with an irrigation plan.
Building Height -The UC-N 1 zone allows a maximum building height of 10 stories along primary
and secondary arterials. The proposed building would have a height of 1 story with a maximum
height of 46 feet, which is well below the maximum permitted and is in compliance with this
development standard. The various sections of the building are at varied heights which helps
reduce the bulk and scale of the structure.
Parking, Loading, and Driveway Regulations -The parking regulations require a specific number
of off-street parking stalls be provided based on the amount of square footage dedicated to
certain uses. The proposed retail/big box store would be permitted a maximum of 0.4 spaces per
100 square feet of net floor area. The proposed building would include approximately 133,002
square feet of net floor area and would therefore be permitted a maximum of 532 parking spaces
(133,002 net sq. ft. 1100 sq. ft. x 0.4 spaces = 532 spaces). The proposed site plan indicates that
at total of 411 parking spaces would be provided, which is less than the maximum permitted and
is therefore complies with the parking requirements.
Of the 411 parking spaces proposed, a minimum of 9 of those are required to comply with the
Americans with Disabilities Act (ADA) requirements. The proposed site plan indicates that 10 of
the 411 parking spaces provided would be ADA compliant, which complies with this requirement.
The minimum parking stall dimensions required in the UC-Nl zone for standard stalls is 9 feet in
width by 19 feet in length and for compact stalls is 8 Y. feet in width by 16 feet in length. Compact
stalls shall not account for more than 30 percent of the total number of parking spaces. The
proposed standard spaces comply with the minimum width required of 9 feet; however the depth
of the spaces ranges from 18 feet to 20 feel. The proposed compact stalls appear to comply with
the dimensional requirements. A total of 27 compact stalls or 7 percent would be provided (27
compact stalls 1411 total stalls = 7 percent), which is less than the maximum of 30 percent
penmitted. Staff recommends as a condition of approval that either a revised site plan be
submitted showing the correct parking stall dimensions for the standard spaces or a parking
modification shall be requested addressing the criteria oullined under RMC 4-9-2500. The
HEX staff rpl 05-161.doc
· ,
City of Ronton PIBIPW Department
LOWE'S OF RENTON
PUBUC HEARtNG DATE: July 18, 200fJ
Preliminary Report to the Hearing Examiner
LUA'()5-161, SA-H, SA-Af, ECF
Page 10 of 13
applicant shall submit either the revised site plan or the modification request to the Development
Services Division project manager for review and approval with the building permit application.
Two driveways are proposed along the Garden Avenue N street frontage and one driveway is
proposed to access off of Houser Way N. According to code, the maximum number of driveways
for commercial uses is two per 330 feet of street frontage for property under unified ownership.
The northern most driveway off of Houser Way N is proposed to be 30 feet in width and would
provide access to the docking and loading area. The northern driveway off of Garden Avenue N
is proposed to be 36 feet wide and the southern driveway off of Garden Avenue N is proposed to
be 35 feet wide, both driveways off of Garden Avenue N would provide access to the Lowe's
parking lot. The maximum driveway width permitted for a commercial driveway is 30 feet. Where
practical difficulties exist in the compliance with this standard, the applicant may ask the
Development Services Division for a modification of these requirements per the criteria outlined
under RMC 4-9-2500. Therefore, staff recommends as a condition of approval that either a
revised site plan be submitted showing all of the proposed driveways at a maximum width of 30
feet, or a modification to the maximum driveway standards shall be requested. The revised site
plan or modification request shall be submitted to the Development Services Division Project
Manager for review and approval with the building permtt application.
(e) MITIGATION OF IMPACTS TO SURROUNDING PROPERTIES AND USE
Commercial and Industrially zoned properties surround the subject property. It is not anticipated
that the proposed Lowe's retail store would adversely impact the surrounding properties. Staff
anticipates the project to add value to the site and further enhance the retail opportunities in the
area. The addnional retail uses would potentially increase the amount of activity in the area.
Construction activities wculd result in short-term noise, dust and traffic impacts on surrounding
properties limited to the project's construction. The applicant has submitted a Construction
Mitigation Plan with the land use application outlining measures to be employed for minimizing
dust, noise and traffic impacts during construction, The Construction Mitigation Plan would also be
submitted prior to the issuance of any building or construction permtt to verify the truck/haul routes
and note any other provisions related to construction activities.
(D) MITIGATION OF IMPACTS OF THE PROPOSED SITE PLAN TO THE SITE
The scale, height and bulk of the proposed building is appropriate for the sHe and is anticipated to
be architecturally compatible with future development in the vicinity. The site is 9.78 acres and
the proposed building would have a building lot coverage of less than 36.5% of the sHe. In
addition, landscaping is proposed within the parking area and around the perimeter of the site
along public street frontages.
The scale of the building will be broken up through the use of vertical and horizontal modulation.
The building height ranges from a minimum of 26 feet to a maximum of 46 feet in height.
According to the building elevations, the building materials would consist primarily of split face
concrete masonry units with some smooth face concrete masonry unit accents. Customer entry
to the store would be via two entrances located along the southern fa .. ade of the building. In
addition, an entrance to the indoor lumber yard is also located on the southern building fa98de. A
26,222 square foot garden center is proposed to the southeast of the proposed building.
The heavy trucks wculd be enter the site via a driveway access off of Houser Way N, which wculd
lead them to the docking and loading area located on the north side of the proposed building. The
refuse area would also be located on the north side of the building, which would be contained
behind a concrete masonry unit wall. The applicant requested a modifICation from the refuse area
requirements. The City's refuse and recyclable standards would require a minimum of 10 square
feet per 1,000 square feet of building gross floor area for a refuse area and a minimum of 5
square feet per 1,000 square feet of recyclable area. Based on a total gross floor area of 129,342
square feet for the proposed building a minimum of 1,293 square feet would be required for a
refuse area and a minimum of 647 square feet wculd be required for a recyclable area. The
applicant has submitted a modification request to reduce the required refuse area down to a
minimum of 684 square feel. The modification requested was granted July 11, 2006.
HEX staff rpl 05-161.doc
City of Renton PIBIPW Departm6nt
LOWE'S OF RENTON
PUBUC HEARING DATE: July 18. 2008
Preliminary Report to lhe Hearing Exominor
LUA-05-161, SA-H, SA-M, ECF
Page 11 of 13
Potential erosion impacts that could occur during project construction would be adequately
mitigated by City Code requirements for approval of a Temporary Erosion and Sedimentation
Control Plan (TESCP) pursuant to the King County Surface Water Design Manual (KCSWDM)
and a Construction Mijigation Plan prior to issuance of Construction Permits. In addition, the
City's Environmental ReView Committee imposed a mitigation measure on the project requiring
compliance with the 2001 Department of Ecology Stormwater Management Manual for erosion
and sediment control.
(E) CONSERVATION OF AREA-WIDE PROPERTY VALUES
The proposal is expected to increase property values in the vicinity of the site. The development
of the site provides improvements to infrastructure, landscaping and lighting and additional
employment opportunities.
(F) SAFETY AND EFFICIENCY OF VEHICLE AND PEDESTRIAN CIRCULATION
The applicant provided a Traffic Impact Analysis prepared by Kittelson & Associates, Inc., dated
February 27, 2006. The proposed development is anticipated to generate additional traffic on the
City's street system. Approximately 3,815 new average daily trips are estimated to be generated
by the proposed development. including 320 p.m. peak hour trips. To mitigate for the increased
traffic anticipated on the City's street system, the City's Environmental Review Committee
imposed a mitigation measure on the project requiring the payment of a Traffic Mitigation Fee in
the amount of $85,834.50 prior to the issuance of a building penmit.
Primary access to the site is proposed via two driveway entrances off of Garden Avenue NE, the
southern driveway access would be a shared driveway access with Fry's located to the south of
the subject site. Both of the proposed driveways are full access driveways. A secondary access
for vehicle access to Ihe Iruck docking and loading area is proposed off of House Way N. It
appears that vehicles would be permitted 10 circulate safely throughout the subject property.
An elevated concrete pedestrian walkway is proposed internally through the cenler of the parking
101 and would extend from Ihe main Lowe's enlrance to the soulh to the Fry's parking 101. An
additional pedestrian connection is proposed 10 connect the sidewalk along Garden Avenue N 10
the Lowe's entrance.
It appears that there would be adequate separation between pedestrians and vehicles as well as a
distinct traffIC route for autos versus trucks thus providing safety and effICiency.
Construction Iruck hauling hours are limited to between 8:30 a.m. to 3:30 p.m. under the
Developmenl Guidelines Ordinance in order to avoid conflicts with peak hour traffic. The Traffic
Planning Section will review construction-related impacts prior to issuing final construction
permits.
(G) PROVISION OF ADEQUATE LIGHT AND AIR
The proposed building is designed appropriately to allow adequate light and air circulation to the
building and the site. The design of the building will not result in excessive shading of the
property. In addition, there is ample area surrounding the building to provide for normal airflow.
Exlerior onsite lighting, including security and pariking lot lighting, would be regulated by code.
Compliance with this code (RMC 4-4-075) ensures that all building lights are directed onto the
building or the ground and can not trespass beyond the property lines. According to code, parking
101 lighting fixtures are to be non-glare and mounted no more than 25 feet above the ground. This
is to help minimize the impact onto adjacent properties. Staff does nol anticipate that exterior
lighting would become an issue due to the siting of the building provided code requirements are
met. A lighting plan was not submitted with the site plan application, therefore staff recommends
as a condition of approval that a lighting plan be submitted with the building permit application for
review and approval by the Development Services Division project manager.
HEX staff rpt 05-1 51.doc
, ,
City Of Renton PIBIPW Deparlmem
LOWE'S OF RENTON
PUBLIC HEARING DATE: July 18, 2006
Pretlmlnary R6po1t to the Hearing Examiner
LUA.()6.161, SA-H, SA-M, ECF
Page 12 of 13
(H) MITIGATION OF NOISE, ODORS AND OTHER HARMFUL OR UNHEALTHY CONDITIONS
It is anticipated that the most significant noise, odor and other potentially harmful impacts would
occur during the construction phase of the project. The applicant has submitted a Construction
Mftigation Plan that provides measures to reduce construction impacts such as noise, control 01
dust, traffic controls, etc.
The proposed development is not anticipated to generate any harmful or unhealthy cond~ions.
There would be noise impacts of increased traffic and activity that are normally associated with an
office development that has truck traffic.
(I) AVAILABILITY OF PUBLIC SERVICES AND FACILITIES. TO ACCOMMODATE THE
PROPOSED USE
Fire Department and Police staff have indicated existing facilities are adequate to accommodate
the subject proposal, subject to the applicant's payment of the necessary impact fees. As
imposed by the ERC, the applicant will be required to pay the Fire Mitigation fee prior to the
issuance of building permits.
A Preliminary Storm Drainage Analysis prepared by PacLand dated December 14, 2005 was
submitted with the project application. According to the report, the existing surface water runoff
sheet flows across the property from the east into onsne catch basins on the westem side of the
property, where it is then conveyed offsite through a 24 inch pipe that outfalls into the 72 inch
public storm system in Garden Avenue N. The proposed method of drainage control is to collect
the ons~e stormwater runoff from the paved surfaces into catch basins and underground storm
drainage pipes. The water will then be routed to two separate water quality compost stormwater
filters for water quality treatment prior to discharging into the existing 72 inch stormwater
conveyance pipe located in Garden Avenue N. The slormwater runoff from the building rooftop is
collected and transported at the rear of the building and will bypass the water quality system and
be discharged into the existing 72 inch stormwater conveyance pipe located in Garden Avenue N.
Staff from the City's Plan Review Section have reviewed the report and note that the report
addresses the requirements of the 1990 King County Surface Water Design Manual. The
Environmental Review Committee imposed a mitigation measure requiring the project to comply
with the 2001 Department of Ecology Stormwater Management Manual for water qualny
improvements.
Utilities are required to be installed and extended as necessary to the building by the applicant as
required by City code.
(J) PREVENTION OF NEIGHBORHOOD DETERIORATION AND BLIGHT
The proposal would result in the development with coordinated site improvements including
landscaping, parking, signage and lighting. It is anticipated that the proposed Lowe's retail building
would contribute to the surrounding properties by developing a vacant site and providing
investment in the area. No deterioration or blight is expected to occur as a result 01 this proposal.
H. RECOMMENDATION:
Staff recommends approval of the Lowe's of Renton, Project File No. LUA-05-161, SA-H, SA-M, ECF
subject to the following condillons:
1. Information shall be provided regarding the proposed landscaping within the 20-foot stormwater
easement to the east of Garden Avenue N that would ensure the existing stormwater pipe would
not be damaged and that the proposed Autumn Flame Maple Is a suitable street tree. Or, a
revised landscape plan shall be submitted proposing appropriate landscaping that will not damage
the stormwater pipe. This shall be submitted to the Development Services Division project
manager for review and approval prior to the Issuance of a building permit.
2. A revised landscape plan shall be submitted with the building permit application shOWing the
minimum 751 shrubs required within the parking area. The revised landscape plan shall be
submitted to the Development Services Division project manager lor review and approval.
HEX .",ff 'Pt 05-161.doc
, .
City of Renton P/IlIPW Dopartmenl
LOWE'S OF RENTON
PUBUC HEARING DATE: July 18, 2QOt;
Preliminary Report 10 111& Hearing Examiner
LUA-01l-161, SA-H, SA-M ECF
Page 130(13
3. A revised site plan shall be submitted showing all of the proposed driveways at a maximum width
of 30 feet. or a modification to the maximum driveway standards shall be requested. The revised
site plan or modification request shall be submitted to the Development Services Division Project
Manager for review and approval with the building permit application.
4. Either a revised site plan shall be submitted showing the correct parking stall dimensions for the
standard spaces in the UC-Nl zone or a parking modification shall be requested addressing the
criteria outlined under RMC 4-9-2500. The applicant shall submit either the revised site plan or
the modification request to the Development Services Division project manager for review and
approval with the building permit application.
5. A lighting plan shall be submitted with the building permit application for review and approval by
the Development Services Division project manager.
EXPIRATION PERIODS:
Site Plan Approvals (SA): Two (2) years from the final approval date.
HEX staff 'Pt Q5.161.doc
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August 8; 200t)
AUG n 92006
RE6!rt!tP1J~ ~:~~~~:~R
Minutes
APPLICANT:
OWNER:
CONTACT:
LOCATION:
SUMMARY OF REQUEST:
SUMMARY OF ACTION:
DEVELOPMENT SERVICES REPORT:
PUBLIC HEARING:
Jim Manion
Lowe'smw
1530 Faraday Ave., Ste. 140
... Carlsbad, CA n008 .
Dash-80, L.P.
440 N I" Street, Ste. 200
San Jose, CA 95112
Mike Neer
PACLAND
. 11235 SE 6th St" Ste. 220
Bellevue, W A 98004
Lowe's of Renton
File No.: LUA 05-161, SA-H, SA-M, ECF
800 Garden Avenue North
Applicant reqnested Master Plan, Site Plan approval, and
Environmental Review, for a Lowe's Home hnprovement retail
store, garden area and parking spaces.
Development Services Recommendation: Approve with
conditions .
The Development Services Report was received by the
Examiner on July 11, 2006.
After reviewing the Development Services Report, examining
available information on file with the application, field
checking the property and surrounding area; the Examiner
. conducted a public hearing on the subjectas follows:
MINUTES
Thefollowing minutes are a sUllllllmy of the July 18, 2006 hearing.
The legal record is recorded on CD.
The hearing opened on Tuesday, July 18,2006, at 9:02 a.m. in the Council Chambers on the seventh floor of the
Renton City Hall. . Parties wishiiJ.g to testify were affumed by I\le ExaIlliner. ,.,. ,", c,
The following exhibits were entered into the record:
EXHIBIT~B_
Lowe's of Renton
File No.: Ll)A-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 2
. ... .... ,
Exhibit No.1: Yellow file containing the original
application, proof of posting, proof of publication and
other documentation pertinent to this request.
Exhibit No.3: Preliminary Grading and Drainage
Plan
Exhibit No.5: Preliminary Landscape Plan
.
Exhibit No.7: Floor Plan
: .. .. , .
Exhibit No.2: Neighborhood Map
Exhibit No.4: Preliminary Utilities Plan .....
Exhibit No.6: Exterior Elevations
Exhibit No.8: Zoning Map
The hearing opened with a presentation of the staff report by Jill Ding, Senior Planner, Development Services,
City of Renton, 1055 S Grady Way, Renton, Washington 98055. The subject property is located west of Houser
Way N and east of Garden Avenue N, it is north of North 8'" street. There is a short plat being processed on the
subject property and so Lowe's is actuallY directly north of the Fry's site, The property is located within the
Urban Center North -I (UC-NI) wning designation and comprehensive plan designation. The total size of the
subject property is approximately 21 acres, however, after the short plat the subject site would be approximately
9.8 acres in area. The proposal is to construct a new 129,342 square foot Lowe's building with a Garden Center
of approximately 26, 220 square feet and 411 surface parking stalls,
The Environmental Review Committee issued a Determination of Non-Significance -Mitigated with 6
mitigation measures. No appeals were filed.·
Master Pian Criteria:
The UC-NI zoning requires a Master Plan approval prior to approval of the Site Plan. The plan would
implement the vision of the UCN-) comprehensive plan designation with the construction of a Lowe's retail
building. The design is an urban concept and consistent within the site with modulation and articulation of
building design, Landscaping would be provided throughout the site in the parking area and around the
perimeter. A pedestrian connection has been provided to Garden Avenue and through the center of the parking
lot to the Fry's site to the south, The site further provides focal points through the use of prominent architectural
features to show entrances and to break up the monotony oflarge blank walls. The proposal is consistent with
the MastC>' Plan criteria.
Site Plan Criteria:
The site is consistent with the UC-Nl land use elements and policies in the plan. The project is in compliance
with the lot coverage requirements for this zoning designation. Due to a 20-foot wide easement along Garden
Avenue Nand 30-foot wide easement along Park Avenue N, it is not possible for Lowe's to comply with the
maximum front and side yard along street setback requirements. Therefore, the proposed 15 foot 8 inch front
yard setback and the minimum 30~foot side yard along a street setback are approved.
The UC-Nl zone requires that all setback areas from a public street be landscaped and that truck docking and
loading areas be screened from public streets. Parking lots with 100 ormore stalls requires 35 square feet
landscaping per parking space. Street trees would be installed within-lhe landscape strip at a rate of I treefor
every 30 feet oflineal frontage along a street. One tree for every siX parking spaces is also requiredm·the
parking area and shrubs at the rate of five per 100 square feet and ground cover needs to have a 90% coverage
after three years. . .
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 3
There is'a 72-inch stonnwater disehaTgepipebeneath the proposed;limdScape strip. Therefore the applicant .....
should proVideinfonnation regarding the landscaping which would ensure the pipeworildnotbe damaged ana
that.th~'pioposedtrees·aresuitablestr¢et trees or a revised landscape plan proposing landscaping that Will not
damage' the stonnwater pipe;
The proposed building would have a height of I story with a maximum height of 46 feet, which is well below
the maXimuinperinittooand i,Hri compliance With this developIrieIitstimdard:The Vari6ussections of the
building ate atvaried'heights, which helplHeduce the bulk and scale of the structure. .
The proposed site plan indicates that a total of 411 parking stalls would be provided and that complies With the
parking requirements. lrithe UC-Nl zone parking stalls are required to measure 9'feet in Width by 19 feet in
length for standard stalls and 8.5 feet in Width by 16 feet in length'fofcompact stalls: Some stallS are below the
19-foot requirement, however they are along the walkway with no landscaping so they would be permitted the
2-foot overhang in that location.
Two driveways are proposed along the Garden Avenue N street frontage and one driveway to access off of
Houser Way N. The northern driveway off of Garden Avenue N is proposed to be 35 feet Wide and the southern
driveway off of Garden Avenue N is proposed to be 35 feet wide, both driveways off of Garden Avenue N
would provide access to the Lowe's parl;ing lot.
It is not anticipated that the proposed Lowe's retail store would adversely impact the surrouriding properties.
The additional retail uses would potentially increase the amount of ~ctivity in the area. Thescale, height and
bulk of the proposed bUIlding are appropriate for the site and are anticipated to be architecturally compatible
With future development in the vicinity. The applicant requested a modification from the refuse area
requirements, they will be using trash comjJactors therefore, that modification was granted on July 11,2006.
The building has heen designed to allow for adequate light and air circulation through the site. Exterior onsite
lighting, including security and parking lighting is regulated by the City's Code. There should be no problems
with any lighting, however, a lighting plan should be submitted with the building permit application.
Police and Fire Departments have indicated existing facilities are adequate to accommodate the proposal subject
to the payment of a Fire Mitigation fee prior to the issuance of building permits.
A Stann Drainage report was submitted and it has been reviewed andfoung to be in compliance with the 1990
King County Surface Water De~ignManual. However, the ERC has imposed a mitigation measure requiring the
project to comply with the 2001 Department of Ecology Stormwater ManagementMafiual for water quality
improvements.
Mike Neer, PACLAND, 11235 SE 6 th Street, Ste. 220, Bellevue, wA 98004 stated that he is an engineer With
PACLAND and site development conswtant for this project. The correQt acreage for the site is 9.79.
Regarding the building setback, they would like to make it an even 15 feet rather than 15 feet 8 inches. With
reference to th~ landspaping al)qtr<:es that they are planning to use, they do have a lan<Jscape expert on staff and
they oire willing io workWith the City for the appropriate treest<)useintl)at !opation. .
The shared driveway between Lowe's aIidFry's will be shared equally by bolh cClmi>alUe;LBothsides will need
an easement for the.jointaccess.l3oth side~.Will be 35 feet or 36 feet, whi~hev~r sta~f prefers. A.ccess to
Houser Way is 20-fee(widi: aildWill be soleJyfor delivery truck access.. .. . .
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 4
Laura Orlich, 22121 17~Avenue SE, Ste. 225, Bothell, W A 98021 stl!ted thatsh~ was. aproject!,,"chitect witl1,
SSOE. The floorplanfor this site is a custonldesign with devi~tiOll~ fr'l.ll).th~ typicall~youtforLowe:s·The:;
Garden center is typically along the side of the building as oppo~ed to cOll).ingout in the front of the bJ,lildjng.
There will also be larger general contractor parking spaces in front for the larger vehicles iliatcowe to Joa<j,.
materials. .
Kavren Kittrick, Development Services sta,ted iliat regarding the trees and easement, the water d~ljl1:));l"mt is
amenable to talking about the trees or maybe using planters of some sort. Ris just a.matter of keeping the
integrity of the pipe.
'. '. '
The Examiner caHed for further testimony regarding this project. There was no one else wishing to speak, and
no further cowll).ents from staff. The hearing closed at 9:52 am. .
FINDINGS, CONCLUSIONS & RECOMMENDATION
Having reviewed the record in this matter, the Examiner now makes and enters the following:
FINDINGS:
I. The applicant, Jim Manion representing Lowe's Home Improvement, filed a request for a Master Plan
and Site Plan.
2. The yellow file containing the staff report, the State Environmelltal Policy Act (SEPA) documentation
and otherpertinent materials was entered into the record as Exhibit #1.
3. The Environmental Review Committee (ERC), the City's responsible offiCial issued a Determination of
Non-Significance -Mitigated (DNS-M).
4. The subject proposal was reviewed byall depamnents with an interest in the matter.
5. The subject site is located at 800 Garden Avenue North. The subject site is immediately south of North
Park Drive and bounded on the east by Houser Way North. Fry's Electronics shares the south end of the
block.
6.
7.
8.
9.
10.
The map element of the Comprehensive Plan designates the area in which the subject site is located as
suitable for the development of urban uses under the "Urban Center North" designation, but does not
mandate such development without consideration of other policies of the Plan.
The subject site is currently zoned UC-NI (Urban Center North -I).
The subject site was annexed to the City with the adoption of Ordinance 1793 enacted in September
1959.
The subject site now consists of the proposed Lowe's location as well as. the existing Fry's location and
is approximately 21.37 acres in size. A short plat is being reviewed and if approved would result in the
Lowe's parcel being approximately9.79 acres of 426,333 square feet. . ' .' .'
The essb~tiajly fiat parcel is "acant.
lot, which explains why it is paved.
The site was part ofthe"Bbeing complex and served as a parking . ','.' {,'.,., ' .-'" .
· Lowe's of Rcilt()n
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 5
II. The applicant proposeS lleveJriplng'15S;S64 square feet of retiiil and garden center spllce.The main
store would be 129,342 squarefeetat:d the garden center would be 26,222 square feet. Associated
parking for customers would'pro\>lde4l I surface parking silills.
12. The proposed mairi Duilding Willbealfuost square and generally take up ihe width of the north portion
oHhe approximiitely 9~a~re parCel The garden center willbdocated along the eastern edge of the lot
mefgirlg with thesoutheastc()TIlef of the main building. Tbeappticlint#Jllieated that this is a new,
custom floor plan highlighting tli~'gatden center. Thestor"'s tWoeriwc¢s Will be at the comer where
the garden center meets the store-anll'a1ong the southmcl¥lkwest ofthe:gardetl center.
~i .• ·.t'· '.
13. The zone permits 90% lot cl:lveragellIili a ten-story bUIlding. The appliclihtproposes approximately
36.5 percent lot coverage and a one-story, albeit,46 footlall building. The lOading dock for trucks
would be along the nOrth sldeof the building near the eastern c'artier while a staging aiea would be
located along the north side at the -.yestem comer of the building; The zone also requires a minimum
front yard arid side yard aJong a strecito be zero feet or a maximum of five feet. The Director of
Development Services issued a detennination allOWing larger setbacks without a variance. A 20-foot
wide easement exists along Garden (west) and a 30-foot wide easement along Park (north) for utilities,
which restricts what may be constructed within the easements. The applicant bad proposed a 15 foot 8
inch (revised to 15 feet at the hearing) front yard setback along Garden and a 30-foot side yard along
Park. Both frontages would be landscaped and the loading dock at the north end of the building will be
screened.
14. The landscaping will range from approximately 11 feet deep to IS feet deep nearer the building. Staff
raised concern about the nature of the proposed landscaping adjacent or over the easement areas. There
is a potential for roots to disrupt utility lines located in the easements and there was also a concern that
low branches could interfere with sidewalk usage. Staff will want to review the proposed materials.
The parking lot landscaping requires 35 square feet for each parking stall or a minimum of 14,385
square feet oflandscaping andlhe applicant has proposed 15,013 square feet with 77 trees and
supplemental shrubs. Sbrubsmust account for 751 and the applicant provided 641.
IS.
16.
17.
The applicant would be entitled to develop a maximum of 532 parking spaces but has proposed 411,
which is permitted. The stalls will have to meet City standards for dimensions and allotment of regular,
compact and ADA compliant stalls.
The main building will use concrete masonry units with horizontal banding; pylaster columns and the
entrances Will have additional detailing and a canopy near the lumber section; The building will be
painted or finished with Lowe's "logo" paint and trim detailing.
There will be two driveways along Garden with the south driveway being sh'ared with Fry's, There will
be a driveway along Houser to the east for access to the truck loading area along Park. The driveways
will have to meet City standards. .
18. The development will increase traffic approximately 3,815 new average daily trips with approximately
320 peak hour trips.
19. The applicant will be meeting the 1990 King CountySurface Water Ileslgn Miiimal requirements and
the 2001 Depat'tnlentofEColO,lo/Stormwater ManagemeniManual for erosionH,0ntrol standards.
CONCLUSIONS:
I
I
I
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 6
Thosecri.\eria a~egeneral1Y represented in part by the followingenumeration:
I. General Review Criteria for both Master Plan and Site. PJan,Review;
a.
b.
c.
d.
e.
f.
g.
h.
I.
J.
.Confonnan~e with tlte Comprehensive Plan, its elements, goall>, objectives, and
policie~. In determining compliance with the Compreh~nsive Plan, copfonnance
to. the objectives and policies of the specific land lISe designation shall be given
conside.ratio.n c;lver citywide objectives>m<l,po.li\lies;
Confol1l1ance with existing land use r~la!i,;ns; Mitiiati~n of impacts to surrounding proPerties and uses;
lI:iitigation (If impacts of the proposed site plan to. the site;
Conservatio.n pf area wide property values;
S~fety and efficiency of vehicle and pedestrian circ\llation;
provision of adequate light and air;
Mitigation of noise, odors and other hannful or unhealthy conditions;.
Availability of public services and facilities to accommodate the proposed use; and
Prevention of neighborhood deterioration and blight.
2. Additional Special Review Criteria for COR, UC-Nl, and UC-N2 Zones Only:
a. The plan is consistent with a Planned Action Ordinance, if applicable;
b. The plan creates a compact, urban development that includes a compatible mix o.fuses
. ,that meets the Comprehensive Plan vision and policy I'tatements for the
Commercial/Office/Residential or Urban Center North Comprehensive Plan
designations; . .
c. The plan provides an overall urban design concept that is internally consistent, and
provides quality development;
d. The plan incorporates public and private ope.n spaces to provide adequate areas for
passive and active recreation by the occupants/users of the site, and/or to protect
existing natural systems;
e. The plan provides view corridors to the shoreline area and Mt. Rainier where
applicable;
f. Public access is provided to water and/or shoreline areas;
g. The plan provides distinctive focal points such as public area plazas, prominent
architectural features, or other items;
h. Public and/or. private streets are arranged in a layout that providereasonableaccess to
property and support the land use envisioned; and
1. The plan accommodates and promotes transit, pedestrian, and other alternative modes
of transportation.
3. Additional Criteria for the UC-Nl and UC-N2 Zones Only:
a. The planconfoIpls to the approved c9nceptuaJplan required by development agreement
for the sub-area in question, if applicable. .
b. The plan conforms to the intent and the mandatory elements onhe design guidelines
.10cate(!inRMC4-3-100. The M;asterPlan cll!arl~identifies thel)fJ:>andesign concept
for each,district enunciated in the Urban Cent.erN!)rth COlTIpreh.ensive PI~ poliCies.
c. The proposed interconnected cirCUlation networkrn.ust demonstrate the function and
location of required circulation elements required in RMC 4-3-100.lntep1ll10r local.
roads shall provide adequate edges and buffers to parJdng lots. A sufficient number of
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 7
d.
e.
roads shall provideadequate edges andbufferstoparldngIots. A Sl.lfficient rtumber of
pedestrian-oriented stre~ts are designated to irftplementthi: visi(jn for each district in the
Urban Center North Comprehensive Plan designati?n~ .' . . .. '
Gateways are designated consistent with the Coml'rellensivePlan ani;! conceptual plans
for the gateway demonstrate the design concePt for gateway treatment and identity
significantgateway features to be provided.
The MaSterPlan includes a sequencing element.that explains what philses of the Master
Phmwill be builHlUt frrst, and in what otderthe philseswfil beliuilt;imd an estimated
time frame. .
4. The proposed retail cOrilplex is supported by the comprehensive plan, which calls for urban
scale uses includingh,sinessesthat cater to consumer demands.
5. The building meets the bulk standards set forth in the Zoning Code. Duetotbe easements along
both Garden and Park Avenues, the applicant has proposed a more generous setback since
buildings and certain structures cannot be located over or near large-scale utility lines.
Compliance with both specific Building and Fire Code regulations will be determined when
'Specific building plans are submitted.
6. The4eYeIopment qf the proposed use should nothaveanyuhtoward impacts oh surrounding
development although thete \vii! be increased automotive traffielJoth from patrons of the
business and from delivery trucks. The buildirtg willbe setbac~ fror,n the street due to the
easements along Garden anuPark providing rhore visual separation. '}be building's exterior
treatment should also relieve or mitigate any bulk appearance With banding andpylasters
providing breaks in the long facades of the building. While the building will be approximately
46 feet tall, buildings up to ten stories are permitted. The building should not block light and air
from entering surrounding properties. .
7. The complex will have the required landscaping although the applicant will have to increase
some aspects of the landscaping to meet code requirements in the parlGng lots and may have to
alter species or varieties to avoid interference with either the utility easements or pedestrian
sidewalks.
8. The proposed use should not generate any harmful noise. oOors or glare. Construction noise
should be short-lived and is always a consequence of new construction.
9. Public services are available to serve the proposed use.
10. Redevelopment of the abandoned parking lot should prevent urban deterioration or blight
I J. No Plarmed Action Ordinance is applicable to the proposed development.
12. The proposed use is self-sufficient although in the main, home improvement stores are large,
one-story facilities that are designed to meet the shopping needs of its clientele and are not
necessarily compl!cct urban designs.
13. The design is internally c\lw>istent andprovidesboth vehicular and pedestrian links to the
surrounding community. It will share driveways and potentially parking with it neighboring
retail store.
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 8
14.
15 ..
16.
.17.
Jh~ site is lamjs9aped.blltretail stores generally do not p,ovide much additional public space.
Its locatioll does not require view corridors to surrollIldingameniti~.s or shorelines.
ArchitectuJ:al f~atuJ:es of the design are intended to. moderate the bulk appearance but, again,
thisstcre is.notintended as a public focal point.' '.
While.publjc ~sit is located near the site mid ped"strian COllll~ctions to sidewalks are
provided, th,erniture of many of the products proVided by the.prOPos~d use are not intended for
carry-out sales. . . . . .
In conclusion, I\le proposed use fits many of the design criteria and other criteria of the Site Plan
and Master Plan requirements but clearly its products and services are utilitarian items or large-
scale items mld the design is geared to providing patrons ~th reasonable access to those
products. and service.s. . " ,-, .
DECISION:
The proposed Master Plan and Site Plan are approved subject to the following .coriditions:
1. Information shaH be provided regarding the proposed landscaping within.the storrowater
easement to the east of Om-den Avenue N that would ensure the existing stonnwater pipe would
not be damaged and that the proposed Autumn flame M"aple is.a suitable street tree. Or, a
revised landscape plan shall e submitted proposing appropriate landscaping that will not damage
the storrowater pipe. TIlls shall be submitted to the Development Services Division project
manager for re.view and approval prior to the issuance of a bullding permit.
2. A revised landscape plan shall be submitted with the bUilding permit application showing the
minimum 751 shrubs required within the parking area. The revised landscape plan shall be
submitted to the Development Services Division project manager for review and approval.
3. A revised site plan shaH be submitted showing all of the proposed driveways at a maximum
width of30-feet, or a modification of the maximllm driveway standards shall be requested. The
revised site plan or modification request shall be submitted to the Development Services
Division Project Manger for review and approval with the building permit application.
4. A lighting plan shall be submitted with the building permit application for review and approval
by the Development Services Division project manager.
ORDERED THIS 8th day of August 2006.
Lowe's of Renton
File No.: LUA-D5-161, SA-H, SA-M, ECF
August 8, 2006
Page 9
TRANSMmED 1HIS 8'" day of August 2006 to the parties of record:
Jill Ding
\055 S Grady Way
Renton, W A 98055
Laura Orlich
SSOE
22121 17"' Ave SE, Ste.225
Bothell, W A 98021
Kayren Kittrick
Development Services Div.
Renton, W A 98056
Dash-SO, LP
440 N I" Street, Ste. 200
San Jose, CA 95112
TRANSMITTED THIS 8"' day of August 2006 to the following:
Mayor Kathy Keolker
Jay Covington, Chief Administrative Officer
Julia Medzegian, Council Liaison
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Mike Neer
PACLAND
11235 SE 6'" St., Ste. 220
Bellevue, W A 98004
Jim Manion
Lowe'sHlW
1530 Faraday Ave., Ste. 140
Carlsbad, CA 92008
Gregg Zimmerman, PBPW Administrator
Alex Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King County Journal
Neil Watts, Development Services
Janet Conklin, Development Services
Pursuant toTitleN; Chapter 8, Sec,ti,?~ 100Gofthe City's Code,reguest for reconsideratio~ mnstbe med in
writing on or before 5:00 p;m., August22i.2006. Any aggrieved person feejillgthattl\ed&isionofthe
Examiner is ambiguous or based on. erroneous procedure, errors onaw or ract, error in judgment, or the·
discovery of new evidence which could not be reasonably available at the prior hearing inayJ)Jake II written
request for a review by the Examiner within fourteen (14) days from the date of the Examiner's 4~Cision. This
request shall set forth the specific alIlbiguities or errors discov~red by such appellant,and the EXanUnermay,
after review of the record, take further action as he deems proper.
An appeal to the City Counciiisgoyerned by Title IV, Chapter8,Sectitm 110, whichrequiresthatsuch~ppeal
be filed with the City Clerk,~ccOJnpauYinga filing fee of$75.00and meeting other specifiediequirements.
Copies of this mdimince are avaiJable;fm. inspection or purchase in the Finance Department, fir~tiloor of City
Hall. An appeal must bemed in· writing on or before 5:00p;n'l., Aujuist22, 2006 •.
If the ExambJer's ReCOin~~D~~ti,~;~rDecisioJl contai~sfue requir:Lenttor .~~tiibiv~·Cbvena~t~! the
executed Covenants willbeireguired prior to approval by City.Council orfiIi'iiI.proeessiugofth'<i file. You
may coutact thi~officefqi~nt~matio1\()n formatting covenants.· .
~".' ..
The Appearanceof1<:l'ifh~s~ J:).<'><i~eprovides that no ex p~(Pnv~te one,oIl'bne)bcinlln1.iD.iG*~(jri~litw.occur
concerning PClldillg laudlIS!' d~cisiQ#i;.11jis means that pllr\iC!S loa lan4;l!'ledeCislgn maynotcgnuii~~~te in
private witha"~4!lCisj~~"~<lf'c,~.~~~g the proposal.:9'eei~ioncIifu1«irsp):h~Jan<iuse p~ocess.iiiol*q¢both
the HearingExam!Jle-r'lind,n(im,oeii\.ofihe.City Council....', < ..., . . .•.
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the.contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
Lowe's of Renton
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 10
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration ali well as
Appeals to the City Council. .
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3. ERCMITIGATION MEASURES
Based o~iari:anaIYSiS of probable impacls from the proposeq project. the following mitigation measures
were iSSlltl<ffor the Determination of Non-Significance -Mmgjited:
1. The IJroi~t shall be designed to comply with the D~partment of. Ecology's (DOE) ErOSion and
Sedim~fJJ'Control Requirements. outlined in Volume /I ofllle2001 Stormwater Management Manual.
Eroslc>ri;'a~d sediment control measures shall be Installed and maintained to Ille satisfaction of the
representatiVe of the Development Services Division fOr the duration of the project's construction;
2. The appfiCaflt,'shall comply with the recommendations ofthegeotechnical engineering report prepared
by GS!iEngineers. Inc., dated January 26, 2006. regarding earthwork and soil compaction. design of
foundations,floor slabs and retaining walls, structural fill. drainage, paving. and utilities.
3. The pilings to! be located along Garden Avenue N shall be augercast piles or driven steel pipe piles
that extend Ill'r0ugh the liquefiable/compressible upper allUvialdeposils and bear on the lower alluvial
deposits to protect the stormwater pipe.
4. The project shall be designed to comply with the 2001 Department of Ecology Stormwater
Management Manual for water quality,
5. The applicant shall pay a Transportation Mitigation Fee of $85.837.50 for the proposed 3,815 new
average daily trips that will be generated by the proposed development. Fees are subjecl to change
and are payable prior to the issuance of a building penn it.
. 6. The appliCant shall pay a Fire Miligation Fee of $0.52 per square foot, for a current estimated total of
$75,420.80. Fees are subject to change and are payable prior to the isSU<l/1C6 of building pannUs.
I
!
I
Excerpt of Bylaws for ASE
BYLAWS
OF
ALLIANCE FOR SOUTH END
ARTICLE!
MEMBERSHIP
Section 1.1 Election of Members. The members of the
corporation ("Members") shall consist of individuals, domestic or foreign
profit or nonprofit corporations, general or limited partnerships,
associations or other entities (each, a "Person") that have each of the
following qualifications, as detennined by the board of directors in its
sole discretion:
(a) The Person will support the purposes of the corporation and
will not have a conflict with supporting the purposes of the corporation.
(b) The Person has paid dues to the corporation in such amounts
and at such times as the board of directors may establish by resolution.
(c) The Person has made such applications or entered into such
agreements as the board of directors may require.
(d) The Person has been elected as a Member by the board of
directors at any meeting thereof.
Section 1.2 Rights of Members. The rights of the Members
shall be exclusively as follows, and none of the Member shall have any
other rights whatsoever:
(a) The Members shall have voting rights with regard to the
question of whether to approve a plan of merger or consolidation,
pursuant to RCW 24.03.195(\).
(b) The Members shall have voting rights with regard to the
question of whether to approve a sale, lease, exchange, or other
disposition of all, or substantially aI!, the property and assets of the
corporation not in the ordinary course of business, pursuant to RCW
24.03.215(1).
(c) The Members shall have voting rights with regard to the
question of whether to approve the voluntary dissolution and winding up
of the corporation, pursuant to RCW 24.03.220(1).
1 of2 pages
EXHIBIT C-
(d) The Members shall have voting rights with regard to the
question of whether to approve a plan of distribution, pursuant to RCW
24.03.230(1).
Section 1.3 Certificates of Membership. Certificates of
membership in the corporation may be issued. If issued, they shall be
numbered, and the respective Members' names shall be entered in the
membership register of the corporation as the certificates are issued.
Certificates, if any are issued, shall bear the Member's name and shall be
signed by the president or the secretary.
Section 1.4 Status of Membership. Membership in the
corporation shall be personal, shall not survive the death of any individual
Member, and may not be transferred by operation of law or by any other
means.
Section 1.5 Termination of Membership. Membership in the
corporation may be terminated (a) for any action by a Member that is
detrimental to the best interests of the corporation, (b) or for failure to
actively support corporate purposes, or to actively participate in corporate
activities, or (c) for failure continually to meet the qualifications of a
Member pursuant to Section 1.1 of these Bylaws. Removal shall require
the affirmative vote of the board of directors. In the event that any such
termination is contemplated, the board of directors shall notify the
Member in a record of the reasons for the proposed action, and of the
time and place of the meeting of the board of directors at which
termination is to be considered, not later than ten (10) days prior thereto.
Prior to the meeting, the subject Member shall be entitled submit written
responses to the stated reasons for termination. At the option of the
Board, the termination may be immediate, without prior notice, but with
full post termination appeal proceedings.
2 of2 pages
.. September 5, 2006
DECISION OF THE HEARING EXAMINER ON
MATTERS OF STANDING AND JURISDICTION BROUGHT BY
ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND
PROGRESSIVE ALLIANCE FOR A SUSTAINABLE SOUTHEND (PASS)
While some background may help frame this decision, elaborate details and history need not be
provided at this time as the only issues currently are wheth.er the parties have standing to bring
challenges of the City's actions and whether the Hearing Examiner has jurisdiction to hear the
challenges if the parties do have standing.
This matter concerns City decisions regarding The Landing, a land use project proposed for
approximately 47 acres in north Renton. The land, in the main, was property used by the Boeing
Company for its airplane business and vacated as the company consolidated its operations toward
the north and west With the potential for the land to be developed or redeveloped the City of
Renton conducted an environmental review of proposed changes to its Comprehensive Plan and
Zoning Code and potcntialland use changes for the property. The City issued an Environmental
Impact Statement (ELS). The adequacy of the EIS was appealed and after a public hearing on the
appeal, the appeal was denied. The appellant in that matter is a member of one of two groups
challenging current decisions regarding the current proposal.
Subsequently, Boeing sold off some of the acreage and a dcveloper offered a development plan.
The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. That
ordinance designated as Planned Actions uses and activities descnbed in the FEIS and subject to
mitigation measures that had been separately proposed as part of a Development Agreement
originally agreed to hy Boeing and the City .. That ordinance further allowed changes to that or
other proposals that fell within the scope and character of the original plan. The original developer
abandoned their original plans and the property changed hands to the current applicant. New plans
were SUbmitted and found by the Director of Development Services (Director) to be in
conformance with the original Planned Action. The proposal was approved as a Planned Action
and the Master Site Plan was approved. These actions by the director apparently removed any need
for subsequent public hearings or environmental analysis ofthe new proposal. An appeal of the
City's proposed infrastructure improvements in the area where the subject proposal would be
developed had been initially filed but was withdrawn.
Two separate citizen groups filed appeals ofthe City's action or actions. No individual filed an
appeal on his or her own behalf.
The City and the underlying applicant, Harvest Partners (Applicant), challenged the standing of the
two groups that brought the appeals. At a Pre-hearing Conference the issue of standing as well as
the Examiner's jurisdiction to hear the appeals were defmed as issues to be resolved prior to any
public hearing on the merits of the appeal or appeals. The various parties submitted motions and
responses and oral argument was heard on the motions.
EXHIBIT .D ---
Hearing Examiner -clslon
. , September 5, 2006
Page 2
The parties to the proceeding are the City, the applicant and the two citizen groups.
Standing to Bring tbe Appeals:
The Hearing Examiner Ordinance in part provides the following language on appeals:
RMC 4-8-11 0(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827,1-24-2000)
1. Applicability and Authority:
a. Administrative Determinations: AIly administrative decisions made may be
appealed to the Hearing Examiner, in writing, with thc Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Detenninations: Except for pennits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, whcn any
proposal or action is granted, conditioned, or denied on the basis of SE? A by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisions of this Section.
e. Authority: To that end, the Examiner shall have aU of the powers of the
officc from Whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City'S Environmental Detenninations:
Appeals from environmental determinations as set forth in subsection El b of
this Section or RMC 4·9-070N may be taken to lhe Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance ofa Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that perSOll
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Deteiminations other than
Environmental: Appeals from administrative determinations of the City's
land use regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, department, board or
bureau of the City affected by such detennination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appcals of Administrative
Detenninations Relative to the Tree Cutting and Land Clearing Regulations:
Hearing Examiner:
September 5,2006
Page 3
d.
slOn
Any individual or party of record who is adversely affected by such a
1lecision may appeal the decision to the City's Hearing Examiner pursuant to
t1).e procedures established in this Section. (Ord. 4351,5-4-1992)
lpecial Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
One citizen group is identified as the "Alliance for South End" (hereinafter, ASE). They
challenged two actions:
The Director's decision designating "The Landing" as a planned action;
The Director's decision approving the Master Plan for "The Lan.ding."
The only member of ASE identified was Brad Nicholson. He lives northeast of the project area.
He drives through the area where the project is proposed. He also uses the nearby Coulon Park.
He has identified traffic as an issue that would affect him. He also identified impacts to the waler
quality of Lake Washington as an issue that concerns him. He also identifies himself as someone
who might shop, work or live in the area that would be developed if The Landing were approved.
It was Mr. Nicholson, as an individual, who challenged the original EIS prepared for the City's
Comprehensive Plan amendments and Zoning Code amendments.
The second group is identified as "Progressive Alliance for a Sustainable Southend" (hereinafter,
PASS). TItis sccond group appealed three actions:
The Director's decision on the Master Site Plan
The Planned Action decision on the roadwork and utility improvements
The Planned Action decision on "The Landing."
Two PASS members specifically identified are Patrick Kik and Sheila Pratt. Mr. Kik is a member
of United Food and Construction Workers Local 21, which is a member of PASS. He lives at 530
Burnett Avenue North in Renton, Washington, a few blocks south of the proposed development.
He has resided there since May 1997. He maimained that he wanted to be involvcd in the review
process. He noted traffic and construction would affect him. Ms Pratt, according to her signed
Declaration, lives at 300 Vennon! (sic: Most likely Vuernont) Place Northeast in Renton,
Washington, also a few blocks from the proposed developmenL She wants to be involved because
anything that occurs on that site would affect her due to her proximity to Ihe proposed
development. Traffic was identified as one area that concerns and would affect her. Her use of
Coulon Memorial Park would be affected by more users, parking dynamics and pollution to Lake
Washington adjacent to the park.
" .. Hearing Examiner .ll&.cision
September 5, 200~
Page 4 •
Since neither appeal was filed by any of the named individuals, the associations or groups they
belong to can only have standing if some member of the association would have standing. Int'l
Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn,2d 207, 213, 4S P.3d 186 (Z002),
The first group to be considered would be ASE, the group in which Mr. Nicholson is a member.
The attorney representing ASE also represents Westfield, WEA Southcenter LLC, a business which
owns and operates a large shopping center, South center, located in Tukwila, Washington, a few
miles southwest of the current proposal's location. The business, the attorney admitted is involved
in providing at least some flll1ding for this litigation and is on record (press releases and
announcements -citations omitted) as opposing this development. Both Ihe City and applicant
challenged the standing of ASE based on the association of Westfield with this litigation and its
funding. They challenged ASE as a shell corporation intending to directly impede the subject
proposal by indirect means that Westfield could not do directly. Westfield, as an economic
competitor has no standing to bring an appeal. Evidence presented at the hearing was the
membership application of Mr. Nicholson and the bylaws of ASE.
The membership application contains the following footer text:
"C:\DOCUMENTS AND SETTINGIPETERJMY
DOCUMENTSIDATAlDOClWESTFIELDINON PROFITIMEMBERSHIP FORM.DOC"
(Exhibit A, Membership Application -Alliance for South End that Mr. Nicholson submitted for
membership in ASE)
The Bylaws of ASE provide the voting rights of members of ASE:
Section 1.2 Rights of Members. The rights of the Members shall be exclusively as follows. and
none ofthe Member (sic) shall have any other rights whatsoever:
(a) The Members shall have voting rights with regard to the question of whether to
approve a plan of merger or conSOlidation, pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the question of whether to
approve a sale. lease, exchange, or other disposition of all, or substantially all, the
property and assets of the corporation not in the ordinary course of business.
pursuant to RCW 24.03.215(1).
(c) The Members shan have voting rights with regard to the question of whether to
approve the voluntary dissolution and winding up of the co!poration, pursuant to
RCW 24.03.220(1).
(d) The Members shall have voting rights with regard to the question of whether to
approve a plan of distribution, pursuant to RCW 24.03.230(1). (Exhibit B)
At the hearing this office in trying to understand the relationship of ASE's members and
specifically Mr. Nicholson'S relationship to the litigation and also guided the litigation asked: "Wbo
is driving the car?"
.' .. • Hearing Examiner
September S, 2006
PageS
1510n
Staying with the "who is driving the car" analogy:
Mr. Nicholson has no official say in the course or direction that this litigation will take. He cannot
steer the litigation with any vote he can take. ASE's attomey noted Mr. Nicholson has a say in the
litigation. It is easy to say that he can provide input but there is nothing he can do to control where
it goes. He has no vote in the organization that controls or governs or even gently directs rhe
appeal. ASE merely uses his "stature" as an affected person to give it standing.
Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice.
The other members could outnumber and outvote him. Except, clearly, those others cannot out
vote him since none of[hem has a vote.
Steering ahead with this "who is driving" analogy, one has to detennine what is being driven.
Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they
have a say. On a public bus they do noL In some cases they can get off (bus) and at other times,
they are on for the ride until it reaches a predetermined destination (airplane). With a bus, the
conveyance may still be driven but no one is onboard any longer. A bus goes to the last stop even
if there is no longer anyone on board. The course of the bus was clear from the start and that's
where the bus goes. Can this litigation continue if there are no riders?
ASE only has standing while there are members and while there are members with standing, that is.
persons with the potential to be injured if they don't get a reasonable resolution of their appeal.
Which itself brings up an interesting point -what if the membership dissolves, that is fades away,
without dissolving ASE officially? Does ASE have any standing if there were no members any
longer even if they or he did exist when the appeal was filed?
The appellants labeled Mr. Nicholson a "poster child" (ASE's response to applicant's motions to
dismiss for lack of standing, Page 1) for the type of person within the zone of interest of SEPA. He
could actually be a "poster child" of a "straw man" for an organization which has no meaningful
substance.
The definition of a "straw man" is: A third party used in
some transactions as a temporary transferee to allow the
principal parties to accomplish somethin g that is otherwise
impennissible." (Black's Law Dictionary, Seventh Edition)
We have a litigant or litigants, if one accepts that there are other members of ASE (although there
was no proof of their existence or their individual attributes of standing), who have no control of
the litigation.
The Bylaws of ASE specifically limit the participation, at least, in any voting that might control or
influence the aetions of the corporation. An interesting side note is that variously ASE's Attorney
noted that: (I) there were "no members" in its initial filing with the Secretary of State; (2) then in
pleadings indicated that was a mistake and it should have said "no voting members"; (3) but the
• Hearing Examiner' cis ion
September 5, 200t.
Page 6
bylaws provide a vote. Allhough as seen above, the vote is very limited and provides no control of
this litigation. A series of mistakes was identified by the parties in some of the various filings in
this matter. They do cast a bit of a shadow over some of the evidence.
So as noted above, if there are a number of other members of ASE, Mr. Nicholson would not
necessarily get to call the shots or "drive" the bus or steer the litigation. But there is no evidence
that even a real majority of ASE's members can do anything to conlrol the course of this appeal.
The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the
members any right to control the appeal. Since ASE filed an appeal and irs attorney continues to
make appearances one has to presume someone or some entity, somewhere is in charge, calls the
shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no vote
on litigation matters nor do any of ASE's "members."
That footer shown above could be somewhat telling in determining who is directing the litigation
on behalf of ASE. Mr. Nicholson's Memhership Application has a footer that identifies,
presumably, that document's computer storage origins. The footer line contains the following text:
"C:\DOCUMENTS AND SETTING/PETERIMY
DOCUMENTSIDAT AlDOCIWESTFIELDINON
PROFIT !MEMBERSHIP FORM.DOC"
That footer line would seem to indicate that Westfield's legal business and the ASE association's
litigation might be handled or originate together. It would merge the potential interests ofthc two.
Again, recall that Westfield is a competitor of the underlying applicant for the land use decisions
being challenged. Or the "footer" could be just one more mistake in the way this matter was
, handled by Westfield's and ASE's attorney. It might have been a mistake in how lhe document was
initially created in whatever word processing software was used.. But ASE's attorneys have been
frank. There have been no real attempts to hide the fact that Westfield employs them and aClually
pays some of the bills for ASE. But this blending, merging or blW'ring of the lines of control all
lead to the inevitable qucstion of who conlrols the litigation and whose interest is being served by
the litigation. The conclusion would appear to be inescapable -Westfield is paying some ofthe
bills and no one else, neither Mr. Nicholson nor any other individual or majority of ASE has been
identified as being a principle litigant who can direct the litigation of this appeal.
So even if this office were to acknowledge that Mr. Nieholson might have standing under this
office's normal inclination to liberally grant standing to an individual who can show some interest
in a matter, Mr. Nicholson did not file the appeal in his own right. Sticking with our transportation
analogy just a bit longer -Mr. Nicholson hitched his cart to the wrong horse and now has no
control or say in this litigation. Mr. Nicholson has no ability to do much in his "non-voting','
capacity as a mere member. Bul Me. Nicholson is not alone (ifthere are other members of ASE) as
no member of ASE or the combined membership of ASE can do anything with this litigation. It
may be unfortunate to preclude Mr. Nicholson's right to have his standing asccrtained or appeal
heard but he tied his rights, if any, to an association that granted him no rights to direct litigation.
He chose that course rather than file an appeal in his own right.
Hearing Examiner D~cision
'. " • September 5, 2006
Page?
While one generally "pierces the corporate veil" to get at underlying persons or assets, it is
generally done so that justice can prevail. Discard the cOIporate veil in this case and what we find
is a competitor, Westfield COIporation. They own the nearby Southcenter Shopping Center. They
appear to be paying a good portion of the litigation, employ the attorney who is representing ASE
and may havc control over the litigation. Although, this office finds no evidence that Westfield ..
controls the litigation, this office finds that no one really seems to control ASE and the attorneys in
this mailer. ASE, again. has no voting members controlling the appeal. Tbe bylaws provide the
ASE membership with a limited range of power and none that go to the heart of who controls this
litigation.
In SODERBERG AnV. v. KENT-MOORE CORP. 11 Wn. App. 721, 734, 524 P.2d 1355 (1974)
the court found:
" The court could conclude from the evidence here and reasonable inferences
therefrom that KM used its undue domination and control. through KM personnel
with a primary loyalty to KM, to obtain artd then avoid payment for essential
services from which KM expected to receive great benefit. The domination was
so complete that "the controlled coIporation [had). so to speak, no separate mind,
will or existence of its own and [was] but a business conduit for its principal." 1
W. Fletcher, Private Corporations § 43, at 205 (perm. ed.. rev. 1963). In Seattle
Ass'nofCredit Men v. Daniels, 15 Wn.2d 393, 396,130 P.2d 892 (1942), the court
in discussing the doctrine of disregard quoted the following with approval from
Pittsburgh RefiectOT Co. v. Dwyer & Rhodes Co., 173 Wash. 552, 555,23 P.2d 1114
(1933):
"In order to justify the judicial disregard of corporate identities, one, at least, of two
things must clearly appear. Either the dominant cOIporatioo must control and use the
other as a mere tool or instrument in Carrying out its own plans and pUIposes so lhat
justice requires that it be held liable for the results, or there must be such a confusion
of identities and acts as to work a fraud upon third persons." Even ifboth things must
be shown as suggested in Sommer v. Yakima Motor Coach Co., 174 Wash. 638,26
P.2d 92 (1933) (decided prior to Seattle Ass'o of Credit Men v. Daniels, supra), the
court could and did conclude from the evidence that both things had been proved.
Footnote 1, supra. See J.I. Case Credit Corp. v. Stark, supra al475, See also Foresl
Hill Corp. v. Latter & Blum. Inc., 249 Ala. 23,29 So. 2d 298 (1947); Linco Servs., Inc.
v. DuPont, 239 Cal. App. 2d 841, 49 Cal. Rptr. 196 (1966); Dillard & Coffm Co. v.
Richmond Cotton Oil Co., 140 Tenn. 290, 204 S.W. 758 (1918). KM in good conscience
can scarcely comPlain if the trial court determined that to recognize the separate entity
ofPK under th.e peculiar circumstances here would in effect place the court in the untenable
position of assisting in the accomplishment of a breach of duty owing to plaintiff.'
As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization
without standing have found that no individual member had sufficient standing on their own right.
Or the claims made on behalf of the association were too personal to the members and could not be
• -.., "
Hearing Examiner -CISlon
September 5, 2000
Page 8
attached to an association. But those cases that fotUld a lack of standing can still be elucidating.
Here we have an organization in which no member can call the shots.
See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 866-67, 576
P.2d 401 (1978); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119
L.Ed.2d 351 (1992). International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146
Wn.2d207, 213-14, 45 P.3d 186 (2002); Des Moines Marina Ass'n v. City of Des Moines, 124 Wn.
App. 282, TIMBERLANE v. BRAME 309 79 Wn. App. 303, 901 P.ld 1074.
This office finds that ASE does not have standing. It is a mere shell created by the applicant's
potential competitor, SouthcenterlWestfield for the purpose of thwarting a competitor's proposed
development.
This brings us to the standing of PASS. Since the underlying nature of the association was never
challenged nor evidence produced to make it suspect as to its aims, it would appear that PASS has
members who individually could have standing and as such, PASS has standing to bring its appeal
or appeals. The two identified members both live close to the proposed project. They could be
affected by the traffic generated by the proposed development. They could be affected by the
construction of the project itself. One of them uses a park that could further be affected by
additional residents that would occupy proposed residences. Those interests appear to be within
the zone of interests the appeal provisions were intended to protect. The increased traffic could
slow down their respective commutes, increasc roadway congestion and possibly lead to increased
risk of accidents. They could suffer injury in fact. It will be up to the appellants to prove their case
to prevail in obtaining the remedy they seek but they have the right to present a case for review.
Jurisdiction to Hearing the Appeal:
Repeating again for clarity, the Hearing Examiner Ordinance in part provides the following
language on appeals:
RMC 4-8-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVlRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
1. Applicability and Authority:
a. Administrative Determinations: Any administrative decisions made may bc
appealed to the Hearing Examiner, in writing, with the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations: Except for pennits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Progranl Regulations, when any
proposal or action is granted, conditioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under thc provisions of this Section.
, . ••
Hearing Examiner -1510n
September 5, 2006
Page 9
c. Authority: To that end, the Examiner shall have all oftlle powers of tile
office from w,hom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmental Determinations:
Appeals from environmental detenninations as set forth in subsection Elb of
this Section or RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer. department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City'S compliance with chapter 197-11 WAC for issuance of a Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891.2-25-\985; Oed. 5153. 9-26-2005)
b. Standing for Appeals of Administrative Determinations other than
Environmental: Appeals from administrative determinations of the City's
land usc regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, department. board or
bureau of the City affected by such determination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Any individual or party of record who is adversely affected by such a
decision may appeal the decision to the City's Hearing Examiner pursuant to
the procedures established in this Section. (Ord. 4351. 5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551.9-18-1995)
It appears on the face ofthe appeal that the action or actions challenged were those of the Director.
Those appear to be the type of decisions that fall within thc jurisdiction of the Hearing Examiner.
The appeal of PASS may proceed with the following guidance: The party may not challenge the
underlying ordinance (Ordinance 5107) since this office cannot review decisions ofthe City
Council. The Planned Action and Master Plan decisiolls oCthe Director can be challenged.
Hearing Examiner -:ision
September 5, 2006
Page 10
Decision:
The appeal of ASE is dismissed, as they have no standing.
The appeal of PASS may proceed to arguments on the merits.
ORDERED THIS 51h day of September 2006.
W\~·
FRED J. KAGFMAN '~N.--
HEARlNG EXAMINER
TRANSMITTED THIS 5 th day of September 2006 to the parties of record:
Zanetta Fontes Peter Buck Jerome L. Hillis
Warren Barber & Fontes, P.S.
PO Box 626
Renton, WA 98057
Buck & Gordon LLP
2025 First Ave, Suite 500
Seattle, WA 98121
Hillis Clark Martin & Peterson, P.S.
500 Galland Buildiri.g
1221 Second Avenue
Seattle, WA 98101
Brad Nicholson Claudia M. Newman
Bricklin Newman Dold LLP
1001 Fourth Ave., Ste. 3303
Seattle, WA 98154
2811 Dayton Avenue
Renton, WA 98056
King County Journal Newspaper
Attn: Dean Radford
600 Washington Ave S
Renton Reporter
Attn: Oscar Halpert
POBox 130
Kent, W A 98032
Kent, WA 98032
TRANSMITTED THIS 51h day of September 2006 to the following:
Mayor Kathy Kcolkcr
Jay Covington, CAO
Julia Medzegian, Council Liaison
Gregg Zimmerman, PBPW Administrator
Alcx Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King COWlty Journal
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Neil Walts, Development Services
Janet Conklin, Development Services
-, t
< , Hearing Examiner
September 5, 2006
Page 11
ision
Pursuant to Title IV, Chapter 8, Section lOOGof the City's Code, request for recoDsideratioll
must be filed in writing on or before 5:00 p.m., September 19. 2006. Any aggrieved person
feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of
law or fact, error in judgment, or the discovery of new evidence which could not be reasonably
available at the prior hearing may make a written request for a review by the Examiner within
fourteen (14) days from the date of the Examiner's decision. This request shall set forth the specific
ambiguities or errors discovered by such appellant, and the Examiner may, after review of the
record, take further action as he deems proper.
An appeal to the City Council is govcrned by Title IV, Chapter 8, Section 110, which requires that
such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other
specified requirements. Copies oflhis ordinance are available for inspection or purchase in the
Finance Department, first floor of City Hall. An appeal must be filed in writing on or before
5:00 p.m., September 19, 2006.
If the Examiner's Recommelldatioll or Decision contains the requirement for Restrictive
Covenants, the executed Covenallts will be required prior to approval by City Coullcil or
final processing oUhe rIle. You may contact this office for information on formatting
covenants.
The Appearance of Faimess Doctrine provides that no ex parte (private one-on-one)
communications may occur concerning pending land use decisions. This means that parties to a
land use decision may nOI communicate in private with any decision-maker concerning the
proposal. Decision-makers in the land use process include both the Hearing Examiner and
members of the City Council.
All communications concerning the proposal must be made in public. This public communication
pennits all interested parties to know the contents of the coTTullunication and would allow them to
openly rebut the evidence. Any violation ofrhis doctrine would result in the invalidation ofthe
request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests [or Reconsideration as
well as Appeals to the City Council.
•
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5 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
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II
In the Matter of the Appeal of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval.
No. LUA-06-071, SA-A
CERTIFICATE OF SERVICE
12 I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson,
13 P .S., 500 Galland Building, 1221 Second Avenue, Seattle, W A 9810 I. I hereby certify that
14 on the 12th day of January 2007, I caused to be delivered via legal messenger a true and
15 correct copy of Applicant Harvest Partners (J) Motion to Dismiss ASE and Nicholson
16 Appeals Of The Director's Interpretation/Policy Decisionfor Lack of Jurisdiction;
17 (2) Motion to Dismiss ASE And Nicholson Appeals From The Landing Administrative Site
18 Plan Approvalfor Lack of Standing; and (3) this Certificate of Service to the following:
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Mr. Fred Kaufman, Hearing Examiner
City of Renton
1055 South Grady Way
Renton, WA 98055
Lawrence J. Warren, City Attorney
Warren Barber & Fontes, P.S.
100 South Second Street
Renton, W A 98057
Brad Nicholson
c/o Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
Office of the Clerk
City of Renton
1055 South Grady Way
Renton, W A 98055
Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
HILLIS CLARK MARTIN &
PETERSON, P. S.
Certificate of Service -Page 1 of 2
ORIGINAL 500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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DATED this \2. --In. day of January, 2007,
#345401 18449·004 7#$hOI Ldoc 1112107
Certificate of Service -Page 2 of 2
HILLIS CLARK MARTIN &
PETERSON, P,S.
GinaC. Pan
Legal Assistant to T. Ryan Durkan
HILLIS CLARK MARTIN &
PETERSON, P,S,
500 Galland Building, 1221 Second Ave
Sea1tle WA 98101-2925
206.623.1745; fax 206.623,7789
CITY OF RENTON
JAN 12 Z007
RECEIVED
CITY CLERK'S OFFICE
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for the South End (ASE) and Brad
9 Nicholson re:
10 The Director's Administrative Plan Approval
11 And
12 The Director's Administrative Interpretation!
Policy Decision
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14 I, PETER BUCK, do hereby declare:
No. LUA-06-071, SA-A
DECLARATION OF PETER
BUCK
15 1. I am an attorney for the Alliance for the South End (ASE) and Brad
16 Nicholson in this matter. The following is based on my personal knowledge.
17 2. Attached hereto as Exhibit I is a true and correct copy of the Seattle Times
18 article entitled "Chelan Wal-Mart Built, But Will It Ever Open?".
19 3. Attached hereto as Exhibit J is a true and correct copy ofthe court's
20 Memorandum Decision in Defenders afSmall Tawn Chelan v. City afChelan, et. al.,
21 Chelan County Cause No. 06-2-00437-4.
22 4. Attached hereto as Exhibit K is a true and correct copy of Petitioner' s
23 Proposed Order Granting Petition in Defenders afSmall Tawn Chelan v. City afChelan,
24 et. aI., Chelan County Cause No. 06-2-00437-4.
25
DECLARATION OF PETE BUCK - I
Y:W,rP\ASE\SLTE PLAN APPEAL\DECLARATION FOR MOTION TO RH.1A:"ID.Oll J07.DOC
Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
ORIGINAL
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I declare under penalty of petjury under th~ taw~ of the State of Washington that
the foregoing is true and correct. ~ ~
Executed at Seattle, Washington this --/2J.daY Of~ 2007.
Peter Buck
DECLARATION OF PETE BUCK - 2
Y:\WP\ASEISlTE PLAN APPEALillECLARATION FORMOTlOl\ TO REMAND.OIII07.DOC
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
The, Seattle Times: Chel "/al-Mart built, but will it ever open? Page 1 of 3
Friday, January 5, 2007 -12:00 AM
Permission to reprint or copy this article or photo, other than personal use, must be obtained/rom
The Seattle Times, Call 206-464-3113 or e-mail resale@seatlietimes,com with your request,
\"Chelan Wal-Mart built, but will it
ever open? '-
By Lynda V. Mapes
Seattle Times staff reporter
CHELAN -About two weeks from now, Wal-Mart was
supposed to celebrate a grand opening here, ushering in a
new era in retail shopping -and big changes for this scenic
tourist town on the lake.
The shelves are still being stocked. Construction workers are
gluing up trim and decking the food court in plastic plants.
And some 200 new employees are ready to go to work.
But it's quite possible the big celebration is off. A county
judge last week delivered a giant legal victory to a small
group oflocal opponents of the 162,000-square-foot big-box
behemoth, agreeing that the project violated the city's zoning
rules.
Now they aren't just talking about stopping the grand
opening. Some people are talking about tearing the whole
thing down.
The dispute has also ignited a vigorous, sometimes bitter
debate among neighbors in scenic Chelan, population 3,600,
over the future of its character amid a changing economy.
While the opponents are celebrating their rare victory as a
David-vs.-Goliath battle to protect their way of life, a lot of
people have been looking forward to all the amenities and
low prices the world's largest retailer would offer.
"I have very mixed feelings on it," says Cindy Aston, who
runs a greeting-card and gift shop downtown in what used to
be her father's pharmacy,
"Is it going to hurt us? Yes, it will, businesswise, If I didn't
think so, I'd be crazy. On the other hand, I think we could
use a Wal-Mart,"
MARK HARRISON I THE SEATTLE TIMES
A I 62,000-square-foot Wal-Mart
store is scheduled to open Jan, 22 in
Chelan, but a lawsuit by a group of
residents from the town 00,500
may change that. A county judge
agreed with the group that the
project violated the city's zoning
rules.
MARK HARRISON I THE SEATTLE TIMES
Gene Kelly, owner of Kelly's
hardware store, worries about Wal-
Mart opening, but thinks his
customers will keep coming,
MARK HARRISON f THE SEATTLE TIMES
Cindy Aston owns Aston's Cards
and Etc, on Main Street in Chelan.
She prides herself on small-town
service but said the community
could use the products Wal-Mart
would sell.
EXHIBIT I
http://seattletimes.nwsource.comlcgi-binIPrintStory. pI ?documenUd=2003 51 0388&zsection,., 118/2007
The. Seattle Times: Chel --{ai-Mart built, but will it ever open? Page 2 of3
Bait and switch?
Only a single blue tarp flapping on the exterior wall reveals that the Wal-Mart building on the
outskirts of Chelan, where acres of apple orchards have been ripped up for subdivisions, isn't yet
complete.
Opening day had been set for Jan. 22 when Chelan County Superior Court Judge Lesley A. Allan on
Dec. 29 ruled that the project's building permits are invalid.
The judge sided with Defenders of Small Town Chelan, a group of locals and well-heeled Seattleites
with second homes in town, in ruling that the store was inconsistent with the plan as originally
approved by the city. The legal dispute revolves around whether the city's zoning for the IS-acre lot
intended to limit construction to 50,000 square feet per acre, as Wal-Mart contends, or 50,000 for the
entire project, as the opponents maintain.
"This was a bait-and-switch on the part ofthe city and Wal-Mart," said Kathy George, a Seattle
lawyer who represents the opponents. "The city told the public this was going to be a nice business
park with buildings up to 50,000 square feet, and that it would be good for jobs. It skated through the
process with hardly any public concern. Years later, we get a I62,000-square-foot store."
For Laurel Jamtgaard, who heads the group that has managed to raise all of $15,000 for the cause, the
issue is fundamentally about protecting the town's charm.
"It is just so out of scale for a small community," Jamtgaard said. "I'm totally empathetic to people
trying to buy goods at lower prices and tired of driving to Wenatchee or Omak. But every small town
doesn't have to have one of these stores. Part of living in a place like this is being further from that
kind of convenience."
Now the group plans to ask the judge to send the permits back to the city, and yank the temporary
occupancy permit Wal-Mart has been using to stock the store, hire employees and get ready for
opening day.
No one here thinks it's likely the building will be tom down, but no one can say it won't, either. That
wouldn't just cost the company millions. Near as anyone can tell, it would be a first in the long history
of fights between communities and the Arkansas-based retailer.
Weighing options
Wal-Mart admits the judge's decision caught it by surprise, to say the least. The company had been
continuing to work toward the big opening, with workers stocking shelves since early December
under a temporary permit. It had assumed it would win the case, assured that the project was legal
because the permits had been issued.
"We've never had anything like this happen before," said Jennifer Holder, a Wal-Mart public-affairs
manager based in Seattle. "We are weighing our options. We'll be talking to the city and to our
attorneys to figure out what we need to do to make the situation right."
Meanwhile, city officials are bristling at the ruling -and the assertions from Jamtgaard and others
that the public was left out of the decision to allow Wal-Mart to come to town.
http://seattletimes.nwsource.comlcgi -binlPrintStory .pl ?documenUd=2003 51 03 SS&zsection... IIS/2007
The, Seattle Times: Chel "Tal-Mart built, but will it ever open? Page 3 of3
"The city's position is we have not erred, and we followed the city's laws and procedures to a T," said
Dave Fonfara, the city administrator. The city is weighing whether to appeal, he said, but the next
chapter in this story is "a matter of speculation."
A sore subject
The Wal-Mart issue clearly is about much more than zoning codes.
"I think it is going to divide the town," says Gene Kelly, owner of Kelly's, a hardware store that sells
everything from shotguns to tricycles. It's the oldest business in town, family-run since 1958, and
currently employs 20 people.
"There are some benefits to having it. But Wal-Mart is kind ofa sore subject. Big is trying to swallow
little. We have a lot of small shops that aren't going to survive."
A few doors down, at Cindy Aston's store, Aston's Cards and Etc., the stuffed head of a bull elk gazes
down at the froufrou where her father's pharmacy counter used to be. Now it's a pink wall to
complement an inventory oflacy, scented girlie things.
Aston, who serves on the local chamber of commerce, said she prides herself on small-town service
that includes personally delivering cards to customers in the local nursing home so they may make
their selections bedside, and even mailing the cards. But she also knows people can use the products
Wal-Mart will offer. And the city can certainly use the jobs and the tax revenue.
"But those are the only things I can come up with that are good."
Amid all the debating and the legal wrangling, another group of locals has been hard at work, too.
Kevin Huff of Wenatchee was hired to work in the garden center, and has been busy helping to get the
store ready for a grand opening he is certain will come.
If not in two weeks, he figures, then eventually.
"I'm not worried about it," Huff said.
"These things have a way of working out. Most people want the store."
Lynda V Mapes: 206-464-2736 or {m.iJJ!.es@seallietimlJ/i.I;.Q/ll.
http://seattletimes.nwsource.comlcgi-biniPrintStory.pl ?documenUd=2003 51 03 88&zsection... 1/8/2007
... _. _v, _ .......... u... ... .........
•
Superior Court of the State of Washington
For Chelan County
I(6JUU~/U.1~
Lesler A. Allan, Judge
nq, ..... Cl1\ 1
Jolm E. Bridges, Judge
Dcplllmeot3
T. W. Small, Jadge
Deplltm<nl 2
Bart Vandegrift
Court Commissioner
,; .....
! ..
. ',
401 Washington Street
P.O. Bo* 880.
W .... tch ... Wa,hlngton 98807.Q880
Phone:.(SO'> 667-6210 Fa. (SO!I) 667-6588
· December 29,2006
Mr. David S. tvlann
Gendler & Mann .
1424 Fourth Avenue, Suite 1015
· Seattle; WA 98101'
· Mr. KCI\I1eth W. Harper
Menke Jackson et. aI •
. 807 North 391h Avenue
Yakima, W A 98902
Mr. John C. McCuliough
McCullough Hill . .
701 Fifth Avenue, Suite 7220 .
Seattle, WA 98104-7042
Re: Defenders of Small Town Chelan v. Ciu> Of Chelan, eL iii.
Chelan County CalISe No.' 06-2-00437-4
Dear Counsel:
This matter came before the court on October 2, 2006 for .argwnent on the LUPA
. petition filed by petitioner Defenders of Small Town Chelan. Petitioner was rePresented
· by attorneys David Mann and Kathy George. The respondent City of Chelan was
represented by Kenneth Harper. Respondents Pacland Inc., Wal-Mart Stores and CSI
Construction were represented by Jack McCullough and Jessica Clawson. the court has
considered all pleadings submitted in connection with this action, the administrative
record, arguments of counsel and the file and records herein. This. letter constitutes the .
court's memorandum decision.
EXHIBIT J
December 29,· 2006
e. Page 2
Initially, the court notes that the record in this case is comprised of the 102
docwnents i in the administrative record from the city. In addition, the court grants the
city's motion to supplement the recor.d with a complete copy of the generai binding site
plan, as attached to the declaration of Kenneth Harper. The court also grants Wal-Mart's
. unopposed motion to suppl~ent the record pursuant to RCW 36.70C.120(2)(c) with
three newspaper articles related to this matter. ;
The procedural and factual background of this case is somewhat complex,
involving a variety of actions taken by the city in connection with a proposal to develop a
parcel ofland near downtown Chelan. In the court's view, the salient facts are as
follows:
1. September 2000 andfor May 2002: The city received an application and
associated docwnents for a planned development district and general binding site'
plan for the Apple Blossom Center, a I 98-acre proposed development near
downtown Chelan. AR 2,3.3 .
2. May 23. 2002: The city issued public notice of a determination of mitigated
nonsignificance for the proposal with a comment period pursuant to WAC 197-
11-340(2). AR4.
. 3. May 23, 2002: The city issued a notice of application and public hearing for the
proposal and planned development, setting a hearing for June 19, 2002 with the
city planning commission. The notice further indicated that the city expected to .
issue a mitigated determination of [nonjsignificance (MDNS). AR 5.
4. June 19, 2002: The planning commission voted to'recommend approval of the
planned development and preliminary binding site plan with conditions, as
. reflected in the action sheet of June 20, 2002. AR 13. .
5. July ll, 2002: The city coUncil approved the planned development district and
preliminary (or general) binding site plan with conditions, as reflected in the
action sheet ofJuly 24, 2002. AR 16.
6. March 25, 2003: The development agreement was filed (presumably by the
applicant) with the Chelan County auditor's office. AR 19. .
·7. April 24, 2003: The city council adopted ordinance no:2003-1266, which
amended the city's official zoning map to rezone the Naumes property to a
planned development district, The ordinance also adoP.ted several documents by
I Many of the documents are comprised of multiple pages,. .
• The application was submitted by Naumes, Inc, and the property may periodically be referenced as the
Naumes properly.
, "AR" followed by a numberrefe" to documents contained in the administrati.ve record filed herein.
lEI UU.3/ U1Z
.... ' .................. ,. ........ 01 • ..,... ... .......... U"V"OI '-1"01"0 .... n..;.A...n.J.~ .... l.L .,urcJ\,olUJ\ vol
December 29, 2006
• Page3
reference, including'a legal description of the property, the development
agreement for the property, covenants related to the property, the conditions,
findings and conclusions of the ,community development department, and the
proposed preliminary binding site plan, AR 18,
8. January 25, 2005: John Clarke submitted an ownerShip certification on behalf of
Wal-Mart certifying ownership of property described in the "attached
application." AR 23.
9: February I, 2005: Robert Boggess submitted an ownership certification on behalf
ofNaumes Properties, LLC, certifying ownership of property described in the
"attached application," AR 22,
10. February 11,2005: Pacland' submitted an environmental checklist for a proposed
retail project at the Naumes property. The scope of the proposed project included
25 acres of grading with 18 'acres to be used for construction and a new retail
'building ofapproximately 162,000 square feet. AR 24.
11. February 14, 2005: Pacland fiied applications for a fill and grade permit and for a
building permit. AR 25, 26. '
12. February 18,2005: The city issued a notice of application ofWal-Mart's
application for the fill and grade and building permits ,and of the filing of the
environmental checklist. AR 34. A public comment period was initially open
through March 4, 2005. However, by 'second notice of March 7, 2005, the
comment period was extended through March 21,2005. AR 42. These notices
were published, posted and mailed, AR 35-38, 43-45.
13. July 15,2005: The city issued a final mitigated determination of non significance
for the fill and grading of the 25 acres with 18 acres'to be used for construction of
the 162,000 retail building and associated parking. The MDNS was mailed the
same date to a variety of persons and entities, including at least one member of
.petitioner. AR47. '
14. October 27,2005: The' city council approved the "Wal-Mart Project
, Improvement Ap:ement" and "Agreement for Extension of Chelan
, Infrastructure." AR 49.
• Pacland and Wal-Mart are at various times referenced as the applicant and owner, rospeclively, ofthe
, proposed development. The court is not clear as to why each entity (or sometimes both) is named at
particular times in particular documents or of the precise legalrolationship between these two panies,
However, the coun has attempled to reference Iltose panies consisten{ with the manner in which they have
submitted or signed off on the various documeJIts,
, The coun h .. been unable to locate any document in the administrative record tilled .. set forth in the
notice of action. .
I(&!UU4/UJ.~
December 29, 2006
• Page4
15. October 28,2005: The city issued public notice of an action taken on October 27,
2005. Ho~ver, the notice Ij.id not mention the "Wal-Mart Project Improvement .
Agreemenf'. and "Agreement for Extension ofChelari Infr.lIStructure." Rather, the
notice of action referenced approval ofthe 4-lot specific binding site plan by the
city's planning director and the issuance of the fmal MDNS on July 15,2005.
The city's notice of its action was made via mail, pUblication and posting. AR
50-56.
16. October 28, 2005: The specific binding site plan was filed with the county
auditor's office. AR 59.
17. April 20, 2006: The city issued an excavating and grading permit for the Wal-
Mart project. AR 100.
18. May 1, 2006: The city issued a building pennit for the Wal-Mart project. AR
102 .
.19. May ro,2006: Petitioner filed its land use petition, challenging the issuance of
the excavating and ~ing permit and the building permit.
The parties have advanced a variety of arguments in support of their respective
positions. However, the primary positions taken by eaCh can be distilled to the following:
The petitioner alleges essentially a "bait and switch" by the city and Wal-Mart.
!.>etitioner contends that the initial plan submitted to and approved by the city did' not
contemplate any sort of development resembling a Wal-Mart store. Accordingly, the
citizenry of Chelan did not oppose the general binding site plan and planned development
district. When the excavating and grading permit and building permit were ultimately
issued, they were inconsistent with the original pl!l.ll approved by the city and, therefore,
improper and unlawful.
The respondents, in contrast, argue principally that the petitioners are too late to
challenge or appeal the approval of the Wal-Mart project. The respondents assert that the
. original plan provided only a general set of guidelines for future development, but did not
incorpOrate any particular limitation on building or lot size. Rather, the subsequent
specific binding site plan is the controlling document and petitioners did not appeal from
its adoption. The subsequent permits were entirely consistent with the specific plan and
. were, therefore, validly issued.
In light of the central dispute in this case, it is first critical for this court to '.
determine the precise parameters of the planned development district, g~neral binding site
. plan, and the development agreement. More specifically, when the city approved any of
December 29, 2006
• Page 5
these documents, did it incorporate or include a building size limit of 50,000 square feet?
Chelan Municipal Code ("CMC',) 17.52 authorizes the city to adopt planned development
districts ("PDD"). A PDD is a separate zoning district and the uses within the dimrict are
limited to those specifically approved in the PDD development plan. CMC 17.52.020.
The application for a PDD is required to contain a variety of detailed information,
including a scaled map showing proposed buildings with the square footage of each
commercial type building. CMC 17.52.060(B)(7).
Upon receipt of an application, it is first reviewed by the city planning
department, which is required to make comments and recommendations to the city's
planning commission. CMC 17.52.070. The planning commission considers the PDD
application at a duly noticed public hearing. CMC 11.52.080. Following that hearing,
the planning commission may reconunend approval of the PDD as proposed, reconunend
approval with changes andlor conditions, or recommend disapprOVal .. ld The
. commission is required to provide written findings, conclusions and its recommendation'
to the city council.
The city council is also required to consider the PDD at a public meeting CMC
. 17.52.100. The council shall either 1) adopt the findings, conclusions and
. recommendations of the planning cO!lUnission, 2) modifY the fIDdings and conclusions
Without changing the commission's recommendation and adopt the same, 3) reject the
findings, conclusions and' recommendation of the commission and adopt its own findings,
'<Dllclusions and recommendation, or 4) remand the matter to the planning commission
fOT further consideration. Id If the proposal is approved, the applicant is required to file
a final development plan with the city, containing a variety of information. This includes
a general binding site plan, where applicable (as in this case).
Here, as set forth in the timeline above, the city council approved the PDD for the
'Naumes property and a preliminary (or general) binding site plan with conditions on July
11. 2002. The specific language used by the city was as follows: .
On July 11th, 2002 the City of Chelan City Council (x) Granted approval of the
Planned DeVelopment (rezone) and of the preliminary Binding Site Plan (BSP)
with the following conditions: ...
This latiguage was followed by eight conditions, eight supplemental conditions;
ten findings offact arid six conclusions oflaw. The total length of the document Willi .
three.pages. However, per condition #1, approval was not to be effective until a
development agreement was signed by the city and applicant and recorded at the county
auditor's office. AR 16. .
The "Application: General Binding Site Plan," upon which the approval was
based is approximately 166 pages in length and describes the proposed development in
extensive detail. AR 2. Section 2.0 of the application is titled "Planned Development
II!:IVUO/UJ."
...................... .-................. ~ ... ~ .................... ...
December 29, 2006
• Page 6
District Proposal and Development Scenarios." This section includes paragraph 2.2,
"Proposed Building Types & Square Footage." That paragraph includes the following
language:
Sites could range from one acre up to five acres in size. lbe average lot size is
arOlmd 2.5 acres: The smallest is one acre. The largest lot is 18 acres. Buildings
will vary in size up to 50,000 s quare feet depending on use. Market factors will
greatly affect actual square fool&ge ofbuildlngs. (Court's emphasis).
In March 2003, the development agreement for the project was ,filed with the
county auditor. AR 19. This document contains the following relevant language,
, excerpted herein:
Recital E. Based upon the proposal ofNaumes set forth herein, the City desires to
facilitate development adaptations in an effort to meet anticipated market
; demands and consistent with its authority in that regard the City, by approvi'og
Naumes Planned Development District ("PDD',) application accompanying
the Agreement, has ~ned certain real property ... pursuant to Chapter 17.52
CMC.-(Court's emphasis). '
, , Paragraph 1.1 Naumes; contemporanecus with'the execution of this Agreement,
has submitted an application for the approval of a proposed Planned Development
District ... pursuant to CMC 17.52.060,
Paragraph 4 Development of the Property shall be consistent with a Binding Site
Plan which has been considered by the City in conjunction with this Agreement
imd a Binding Site Plan Map in the form attached hereto as Exhibit "B"; which
, shall confirm lot sizes and configuration ....
Paragraph 5 Use of the Property shall be eonsistent with tbe Planned
Developm~t District Rezone which has been considered by the City in
conjunction with this Agreement.. .. (Court's emphasis).
The development agreement did not make any mention of building size
independent of the language in the application. It did reference lot size by attachmertt of
two lot maps titled "Naumes Property General Binding Site Plan." These two maps show
the proposed lot lines , and lots sizes as well as the'proposed uses, distinguishing among
such things as open spaces, ball fields, water quality facility, exempt property, proposed
developable lots, etc. The two lot maps do not show any proposed buildings of any size.
AR 19 at exhibit B, C.
Based on this set of circumstances, petitioner argues -and the court is compelled
to agree -that the city, through the approval of the PDD and the development agreement,
adopted a 50,000 square foot limit on the commercial properties in the Naurnes
~UUtIU~"
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· December 29, 2006
• Page?
development. First, the city approved the proposed PDD. The PDD was based on an
application which states that buildings will vary in size np to 50,000 square feet. None
of the conditions of the city's approval varied that description. This language is plain and
clear. Although some variation in building size was anticipated, the maximum size
· would be 50,000 square feet.
Secondly, the conclusion that the city adopted the various conditions of the
· application is strengthened by the language of the development agreement in Recital E
(" ... the City, by approving Nailmes Planned Development District ("PDD")
application ... ). Frirther, as noted, paragraph 5 requires that use ofthe property be
consistent with the PDD rezone. Again, the document which describes tbe parameters of
the POD is the application.
. Respondents' Contention that the city did not.adopt any of the details for the POD
set forth in the application strains common sense, If this argument were accepted, the·
city's approval of the POD in July 2002 would be relatively meaningless, as its approval
would be defined only by the 16 conditions specifically set forth in its action sheet CAR
16). These conditions are far from any kind of comprehensive description of the PDD;
rather they simply refine and change particular, specific aspects of the plan. Further,
although the development agreement contains some detail of the plan, it is also not a
··complete description of the PDD and, in fact, references tbe PDD application as·having
been approved by the city ..
Respondents also argue that the fact that a general binding site plan contemplates
flexibility and adjustment via a subsequent specific binding site plan means that the
50,000 square foot limit was not adopted or was intended to be modified. However, there
is no legal or factual support for lhiii contention. In this reg!U'd, it is important to note that
the general site plan is reflected in the form of a legal description of the Nawnes
property, together with a map Showing the property divided into anticipated lots. No
buildings (other than existing structures) are shown on the plan and it contains no
reference to building sizes. Further, the language in the general site plan regarding
possible future deviations refers only to different lot configurations than in the general
plan, not to different building sizes than had been described in the PDD application: See
complete copy of general binding site plan in supplemental exhibit.
Thus, the court first finds that the city adopted a 50,000 square foot limit on
. commercial buildings in the proposed Naumes development when it approved the PDD
application and development agreement. The next question then is whether the city's
subsequent action in.approving the Wal-Mart building permit and grading and excavation
permit was improper and unlawful. In the alternative, did any subsequent action by the
city modifY the building size limit so as to render the permit IIpprovallawful?
In this regll1'd, the court understands respondents' argument to be that approval of
the Wal-Mart project occurred when the city approved the 4-lot specific binding site plan
~VUD/UJ.'"
Decembe,. 29, 2006
• Page8
on or about October 28, 2005. Because petitioner never appealed from this action, it
. could not later challenge the two permits at issue. An evaluation .of the merits of this
argwnent necessarily requires examination of the details of the 4-lot specific binding site
plan and the events surrounding its approval.
As previously noted, an environmental checklist for the Wal-Mart project was
filed on February 11, 2005 and an MDNS subsequently issued on July 15,2005. AR24,
47. As far as the court can determine, the only effect of these two documents is to .
establish that the proposed Wal-Mart construction will not have a prubable significant
. adverse effect on the environment (with three mitigwon measures). There has been no
authority provided to suggest that the MONS modifies the POO as described in the
application and development agreement. Thus, although petitioner did not appeal from or
otherwise challenge the MDNS, that failure is not crucial to the outcome oftliis case.
During the same approximate time frame, the city also received applications for
the two permits at issue here (both received on February 14, 2005). AR 25, 26. The city·
Subsequently issued two notices of application (February 18,2005 and March 7, 2005)
·.advising of the. permit applications and the filing of the environmental checklist
(referenced above), and describing the size and -scope of the Wal-Mart proposal (162,000
square feet on 25 acres). AR 34, 42. Both of these notices stated that the two permits
and a specific binding site plan were among the permits/approvals needed for the project.
On October 27, 2005, the city council apparently took some kind of action with
regard to the Wal-Mart project. Specifically, the city issued a notice of action on October
28,2005 regarding a meeting on October 27,2005. The subject yvas listed as: "Wal-
Mart Project -Agreement fa,. Extension of Infrastructure and Improvement Agreement."
AR 49. However, as noted "in the timeIineabove, the administrative record does not.
appear to contain any documents titled as such. .
The city dulypubJished, posted and mailed notice of this. action. Each of these
notices was identical and advised that the action taken was approval of "the 4-lot specific
binding site plan"· for the Apple Blossom Center. The notices did not mention the two
permits at issue nor the proposed size of the Wal-Mart building. The notices stated that
any challenge the city's action was required to be filed in Chelan County Superior Court
by November 30, 2005.
The specific binding site plan referenced in the October 28,2005 notice of action
.is found in the administrative record as AR 59. An examination of that document reveals
that it does not inclUde a depiction or description of the size of the propoSed Wal-Mart
building. It does, on the other hand, show the new proposed lot lines for four lots within
the Naumes property, minimum building setback lines on at least three of the four lots
(unclear regarding lot 2) and proposed easements of various sorts. According to this site
plan, the largest of the four lots is slightly less than 18 acres, with all four totaling
approximately 22.5 acres.
December 29, 2006
• PIlge9
No challenge to the specific binding site plan was timely filed by any party,
including petitioner. Thus, under well established Washington precedent regarding land
. use actions, that decision became final on November 30, 2005. Specifically, RCW
36.70C.040 provides that "[a] land use petition is barred, and the court may not grant
review, unless the petition is timely filed with the court' and timely served ... " within 2J
days of the issuance of chAllenged decision. In Skagit Surveyors 11. Friends, 135 Wn.2d
5.42, SS5 (1998), the court noted that "all statutory procedural requirements [in a land use
. appeal) musrbe met before jurisdiction is properly invoked." In Conom \I. Snohomuh
County, 155 Wn.2d 154, 159 (2005), the court observed" ... we have repeatedly required
parties to strictly adhere to the statutory procedures provided under LUPA for filing and
serv.irig a land use petition." This strict approach has been consistently applied, even
when it is arguable that the unchallenged land use decision waS improper at its inception.
See, e,g., Wenatchee Sportsmen Assn. v. Chelan County, 141 Wn.2d 169(2000).
. Under these principles, the specific binding site plan became final and this court is
without authority to review that decision. Thus, the 4-lot configuration set forth in that
plan became a permissible aspect of the Nawnes property development, including lot J,
at 17.985 acres.6 However, as previously noted~ the specific binding site plan did not
mention or incorporate the 162,000 square foot building size. Th)lS, although the 4-10t
plan became final, it did not change the previously adopted 50,000 square foot'
commercial building limit.
In connection with the MDNS and the specific binding site plan, petitioner also
argues that the city failed to provide proper notice of its decisions. This failure, petitioner
contends, resulted in petitioner being unable to timely appeal from these determinations.
The court is not persuaded by these arguments for the following reasons. First, with
respect to the MDNS, at least one member of petitioner (Laurel Jamtgaard) was mailed
notice of the July IS, 2005 decision. It is unclear to the court what further notice
petitioner contends was necessary.
Similarly, with respect to the specific binding site plan, the city complied with all
statutory methods of notice, including mailing, publication and posting. See AR 50-56;
RCW 43.21 C.080. Petitioner has failed to establish that it was entitled to persortal notice
pursuant to RCW 36.70B.130, in that it has failed to present evidence that any member of'
petitioner commentedon the MONS or the specific binding site plan. Although Ms.
Jamtgaard did submit'a comment, it was specifically referenced as "coinment on' the
building pennit application ...... Although a "best practice" by the city may have been.to
'It should be noted that an 18 acr. parcel within the Naumes development was within the realm ofthe
'POD application. Specifically, as noted by respondents, the application described at least one lot of 18 _,
acres, although it described "sites" ranging from I·) acres in size. AR 2. Further, under CMC 17.52.290,
an increase in lot size within Ihe planned development district is not prohibited in tho fmal development
plan. .
~ U~U/U~Z
December 29, 2006
.' Page 10
_____ ~_ ~""""''''''''''','''''''''' .............. n ............ VoL
providepersonaJ notice directly to Ms. Jamtgaard in light of the substance of her
comments, this court is unwilling to impose such an obligation.
Several·months later -on April 20 and May I, 2006 .:.. the city issued the two
pennits in dispute here. The excavating and grading permit was described as a "permit
for fill It wade of approximately 155,000 cubic yards per approved plans and
specifications." AR 100. The building permit was described as a "penilit to construct
]62,000 square foot retail store." AR 102. Petitioner timely filed a 18./ld use petition,
challenging both of these actions.
Thus, the \)eIlultimate question before this court is whether, against this backdrop,
the issuance of the two permits provides a basis for petitioner's requ.est for relief under
RCW 36.70C.130. Petitioner specifically argues that the city's actions constitute a
clearly erroneous application of the law to the facts pursuant to RCW 36. 70C. 130(1 )Cd).
In considering a land use petition, this court is required to review the record and
any supplemental evidence as maybe allowed. RCW 36.70C.l30(1). Here, the court has
reviewed the entire record as described above, together with the supplemental evidence.
Under the "clearly erroneous" standard of review, the court does not substitute its
. judgment for that of the administrative body. Cougar Mf. Assocs. 11. King County, III
Wn.2d 742, 747 (1988). The court may reverse the. decision "only when it is left with the
definite and fum conviction that a mistake has been committed." Id
Here, this court is left with the definite and fum conviction that the city erred in
· granting the two permits at issue. As previously noted, the city adopted a 50,000 square
foot limit on commercial buildings when it approved the PDD and development
agreement: That limit was not changed by any subsequent action of the city. In
particular, CMC 17.52'.290 allows minor modifications and amendments in the final
· development plan. However, a minor modification can not increase the square footage of
nonresidential structures. CMC 17.S2.290(B)(3). Because the· permits here have the
effect of more than tripling the allowable square foomge of a commercial building, the
permits can not be considered as a permissible minor modification. Rather, pursuant to
the city's own code, such a modification would require application and approval pursuant
· to the procedures set forth in CMC 17.52.080-160 (including public hearings before both
the planning commission and the city council).
The city's failure to recognize that it had adopted a 50,000 square foot limit and
failure to then enforce that condition when it granted the two permits constituted a
decision that was clearly erroneous pursuant to RCW '36. 70C.130(1 )(d). This analysis
applies to both permits, despite that the excavating and grading permit itself docs not
specifical.lY mention the 162,000 square foot Wal-Mart building. Rather, this permit
approves "fill & grade •.. per approved plans & specifications." AR 100. The application
for the permit, in turn, does specify the proposed Wal-Mart building. Thus, the .
excavating and grading.permit approved work for what this court has concluded is an . .
December 29, 2006
• Page 11
impermissible use under the prior limits established by the city. As such, it is also Clearly
erroneous.
Because the city's decisions were clearly erroneous pursuant to RCW
36.70C.130; petitioner is entitled to its requested relief: an order reversing the city's
granting of the building permit and the excavating and grading permit. In light of this
decision, it is unnecessary to reach the additional issues raised by the parties. Mr. Mann
should prepare and present an appropriate order. Thank you. .
c: Superior Court File
Sincerely,
Lesley A. "Allan
Superior Court Judge
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The Honorable Lesley A. Allan
Presentation date: Ianuary 16, 2007
Presentation time: 8:30 a.m.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR CHELAN COUNTY
DEFENDERS OF SMALL TOWN
CHELAN,
Petitioner,
v.
NO. 06-2-00437-4
CITY OF CHELAN, a Washington
municipal corporation; PACLAND,
INC.; WAL-MART STORES, INC.;
and CSI CONSTRUCTION
COMPANY,
[PROPOSED] ORDER GRANTING
PETITION
Res ondents.
This matter came before the Court on a petition brought by Defenders of Small Town
Chelan under the Land Use Petition Act, RCW 36.70C.070. Having reviewed the
administrative record and the briefing of the parties, and having heard oral argument, this
Court on December 29, 2006, iSSUed the attached memorandum decision. The memorandum
decision is incorporated herein as the Court's findings and conclusions.
IT IS HEREBY ORDERED:
1. The Petitioner's land use petition is granted;
[PROPOSED] ORDER GRANTING PETITION - 1
EXHIBITK
GENOLE~ & MANN. LLP
1424 Fourth Avenu&. Suile 1015
Suttle, WA 98101
Phone: 12061 621·8868
Fax: f2061621·0~12
1 2. The City ofCheIan's decisions issuing a building permit and an excavation permit
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to PACLAND, Inc., WaI-Mart Stores, and CSI Construction Co. are reversed;
3. The building and excavation permit applications submitted by PACLAND, Inc.,
Wal-Mart Stores, and CSI Construction Co., are remanded to the City of Chelan for further
proceedings consistent with this order, including denial of the applications and revocation
of all licenses, licensing privileges, occupancy permits or other permits that have been
issued based on the City's erroneous building and excavating permit decisions; and
4. Upon remand, the City of Chelan shall order any building or structure constructed,
II improved, equipped or used based on the invalid building permit and/or the excavating and
12 grading permit to be promptly removed.
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Dated this ~ day Of_----"':::f<""q'-'~"'\.g""_"'v_y4---, 2007.
THE HONORABLE LESLEY A. ALLEN
CHELAN COUNTY SUPERIOR COURT JUDGE
Presented by;
GENDLER & MANN, LLP
~~ ~ S. Mann', SBANo:il068
Katherine George, WSBA No. 36288
Attorneys for Petitioner
[PROPOSED] ORDER GRANTING PETITION -2
GENDlER & MANN. LLP
1424 fourtb Avtnue, Sui1e 1015
S.attls, WA 98101
Phon.: (20il! 621 ·8868
FIX: {20BI621·0512
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval; and The Director's Administrative
Interpretation/Policy Decision
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LUA-06-071, SA-A
APPELLANTS' MOTION FOR
DECLARATORY RULING
REGARDING STANDING
I. INTRODUCTION
Appellants Brad Nicholson and the Alliance for South End (ASE) have filed two
appeals relating to the site plan for The Landing. These are appeals of the Administrative
Site Plan Approval for The Landing issued by the City's Development Services Director
on August 17, 2006 (the "Director's Site Plan Decision") and the Interpretation/Policy
Decision issued by the City's Development Services Director on July 17, 2006 (the
"Director's Setback Decision"). The appeals were filed on August 31, 2006.
The issue of standing has been used by the City and the Applicant as a reason to
delay a hearing on the merits in these appeals until March 27, 2007 -nearly seven months
after the filing date. To avert further delay, Appellants file this motion and request that the
APPELLANTS' MOTION FOR DECLARATORY RULING Buck~Gordon LLP
REGARDING STANDING - I 2025 Fle>tA,eoue. 5,Ite 500
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1206) 382-9540
ORIGINAL
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Hearing Examiner issue a declaratory ruling confirming that the Appellants have standing
in these appeals.
II. STATEMENT OF FACTS
A. Brad Nicholson
Brad Nicholson ("Nicholson") is a lifelong resident of the City of Renton.
Declaration of Brad Nicholson at '1[1. Nicholson lives near the site, owns property near the
site, commutes through the site, and uses Gene Coulon Park and the waters of Lake
Washington adjoining the site. Nicholson Dec!. at '1l'1l 2-3, 19. He has participated
extensively in public hearings and proceedings regarding The Landing site. Nicholson
Dec!. at '1[ 4.
Nicholson also participated in discussions in the spring of 2006 regarding the
formation of a nonprofit to represent citizens concerned about The Landing and
encouraged that approach, which resulted in the incorporation of the Alliance for South
End (AS E). Nicholson Dec!. at '1[ 6. He is contributing funds to ASE, has been elected to
the offices of Vice President and Secretary of ASE, and keeps corporate records for ASE,
including minutes of meetings of ASE's board of directors. Nicholson Dec!. at'1l'1l7-8.
B. ASE
ASE was established to advance its members' interest in the environment, land use
planning, and governmental fiscal integrity of the City of Renton. Nicholson Dec!. at '1[9.
Pursuant to this purpose, the Director of ASE has made a practice of consulting members
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in advance of decisions concerning appeals or litigation. !d. ASE has memorialized this
historic practice by adopting the following policy:
The members shall be consulted by the director(s) in
advance of all major decisions concerning appeals or
litigation, including whether or not to appeal, whether to
dismiss appeals, whether to settle, etc. The corporation shall
carry out the directions of the members.
Nicholson Dec!. at 'If 10.
ASE has amended its bylaws to formalize its members' control over the direction
of the corporation. !d. ASE's members exercise such control by expressing their views in
consultations with the board of directors in advance of all major decisions concerning
appeals, litigation or settlement of claims, as required by ASE's bylaws, and by voting on
matters set forth in ASE's bylaws, including but not limited to the election of directors
and any increases or decreases in the number of directors, pursuant to RCW 24.03.100;
the removal of directors at any time with or without cause or notice, pursuant to RCW
24.03.103; all amendments to ASE's bylaws, pursuant to RCW 24.03.070; and all
amendments to ASE's Articles of Incorporation, pursuant to RCW 24.03.165(1). [d.; see
also excerpt from ASE's amended bylaws, attached as Exhibit D to Nicholson Dec!.
In accordance with ASE policy and bylaws, ASE's director consulted members in
advance of ASE's decision to appeal the Director's Site Plan Decision and ASE's decision
to appeal the Director's Setback Decision. Nicholson Dec!. at 'If 11.
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APPELLANTS' MOTION FOR DECLARATORY RULING Buck~Gordon LLP
REGARDING STANDING - 3 2025 FiGtA,eooe, 50ite 500
Y:IWPIASEISITE PLAN APPEALIMOTION FOR DECLARATORY RULING
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Seattle, WA 98121
(206) 382-9540
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III. ARGUMENT
Brad Nicholson and ASE have standing and a legal right to proceed with these
challenges of the City's decisions regarding a project that significantly impacts Nicholson
and ASE's other members. The Hearing Examiner should therefore issue a declaratory
ruling confirming that Nicholson and ASE have standing in these appeals.
7 A. Legal Requirements for Standing.
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1. Individual Standing.
The Renton Municipal Code (RMC) sets forth the legal requirements for standing
relevant to appeals of administrative detenninations:
Standing for Appeals of Administrative Determinations
other than Environmental: Appeals from administrative
detenninations of the City's land use regulation codes and
from environmental detenninations required by the Renton
environmental review regulations may be taken to the
Hearing Examiner by any person aggrieved, or by any
officer, department, board or bureau of the City affected by
such detennination.
RMC 4-8-11 0.E(3)(b). The RMC contains additional standing provisions for appeals
relating to the City's Site Development Plan Review Ordinance, which is at issue in these
appeals:
Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or
regulated by this Section, must allege an injury in fact, and
that injury must be real and present rather than speculative.
RMC 4-9-200N. The RMC contains no other standing requirements relevant to this
appeal.
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These provisions of the RMC mirror Washington case law regarding standing. To
show an injury in fact, the plaintiff must allege specific and perceptible harm. Kucera v.
Dept. o/Transportation, 140 Wn.2d 200, 213,995 P.2d 63 (2000). If the plaintiff alleges a
threatened rather than an existing injury, "he or she must show an immediate, concrete,
and specific injury." Trepanier v. City o/Everett, 64 Wn.App. 380, 383, 824 P.2d 524
(1992). The zone of interest test "serves as an additional filter limiting the group which
can obtain judicial review of an agency decision" but "is not meant to be especially
demanding." Chelan County v. Nykreim, 146 Wn.2d 904, 937,52 P3d 1 (2002), citing
Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d
787,797,920 P.2d 581 (1996) (internal quotation marks omitted).
2. Associational Standing.
Under the doctrine of associational standing, an organization has standing to bring
suit on behalf of members when the following criteria are satisfied:
(1) the members of the organization would otherwise have
standing to sue in their own right; (2) the interests that the
organization seeks to protect are germane to its purpose;
and (3) neither claim asserted nor relief requested requires
the participation of the organization's individual members.
International Ass'n 0/ Firefighters, Local 1789 v. Spokane, 146 Wn.2d 207, 2l3-214, 45
P 3d 186 (2002).
Under the RMC and Washington case law, no particular structure is required of an
organization before it can have associational standing. Accordingly, the courts have
consistently held that a citizens' group or other organization has standing to challenge
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land use decisions "as long as one member has standing to do so." East Gig Harbor Imp.
Ass'n v. Pierce County, 106 Wn.2d 707, 701, 724 P.2d 1009 (1986) (emphasis added),
citing Save a Valuable Environment (SAVE) v. Bothell, 89 Wn.2d 862, 867, 576 P.2d 401
(1978); see also Suquamish Indian Tribe, 92 Wn.App. 816, 830, 965 P.2d 636 (citing East
Gig Harbor Imp. Ass'n and SAVE for proposition that "an organization has standing only
when at least one of its members has standing as an individual").
8 B.
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Brad Nicholson Has Standing to Challenge the Director's Decisions.
The instant appeals and the Declaration of Brad Nicholson conclusively establish
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that Mr. Nicholson has standing to appeal the Director's decisions. They confirm that
Nicholson is aggrieved by the Director's decisions; they allege multiple immediate,
concrete, and specific harms, each of which is sufficient to establish injury in fact to
Nicholson; and they demonstrate that Nicholson is seeking to protect an interest that is
within the zone of interest to be protected or regulated by RMC 4-9-200N.
1. Nicholson is aggrieved by the Director's decisions.
Nicholson is aggrieved by the Director's Site Plan Decision and the Director's
Setback Decision. For the reasons discussed below, these decisions have already
prejudiced Nicholson and are likely to harm his interests in the future.
2. Nicholson alleges both existing and threatened injury in fact.
Nicholson owns property and lives at 2811 Dayton Avenue Northeast in Renton,
Washington, less than two miles from the site of The Landing project and within the "3
Mile Radius" demographic area discussed in project documents for The Landing.
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Nicholson Decl. at '\[ 2, 5. His route of travel between home and work often takes him
along streets directly adjacent to and through The Landing site. Id. He is already hanned
by commuting delays caused by construction relating to infrastructure work for The
Landing. Id. at'\[ 3. As a result of the unanalyzed and unmitigated traffic impacts caused
by the project, he will also suffer hann in the future from increased traffic and from delays
and increased risk in traveling along the roads he depends upon to commute and travel
generally in the community. An allegation of this sort of traffic-related hann is sufficient
to establish injury in fact. Suquamish Indian Tribe, 92 Wn. App. at 831.
Nicholson has a longstanding interest in the land use decisions of the City of
Renton. Nicholson Decl. at '\[ 4. He has participated extensively in public hearings and
proceedings regarding The Landing site, including filing a Petition for Review before the
Growth Management Hearings Board of the City'S decision to rezone this property (filed
on September 6, 2003) and appealing the City'S approval for the Boeing Renton
Comprehensive Plan Amendment Environmental Impact Statement (HBRCPA EIS"). Id.
As a result of the City's failure to hold a public hearing on any decision approving The
Landing project, Nicholson is already suffering hann from an inability to participate and
voice objections to the City Hearing Examiner and the City Council. Id. at '\[13.
Nicholson will also be injured by the City's illegal approvals for The Landing,
which reflect a bait-and-switch by the City from the promised and adopted urban village
concept to a suburban, auto-oriented, big box shopping center. Id. As a result, he will
suffer hann from inappropriate presence of a big-box, suburban-style development in an
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urban zone; decreased property values; damage to the appearance of the City, and failure
to achieve the required employment base. Id. at '\[14. Each of these harms is sufficient to
establish an injury in fact.
Nicholson uses the shores and waters of Lake Washington, Gene Coulon Park, the
Cedar River, and Johns Creek, and specifically the shoreline and offshore areas
immediately adjacent to The Landing project, for recreational activities including fishing.
Nicholson Dec\. at '\[19. As a result of the stormwater impacts caused by the project,
Nicholson will suffer harm from decreased water quality in Lake Washington, the Cedar
River, and Johns Creek and from harm to Chinook salmon and other salmonids that use
these water bodies. !d. at '\[ 20. As many cases have recognized, use of a specific natural
environment, and use of an animal species (like fishing) or even observation of species in
that location, "is undeniably a cognizable interest for purpose of standing." See Allan v.
University of Washington, 140 Wn.2d 323, 328, 997 P.2d 360 (2000) (Court's italics),
quoting Lujan v. Defenders of Wildlife, 504 u.s. 555, 562-63, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361,31
L.Ed.2d 636 (1972».
3. Appellants seek to protect interests that are within the zone of interest to be
protected by the City's Site Development Plan Review Ordinance.
These appeals seek to protect interests that are plainly protected by the provisions
of Renton's Site Development Plan Review Ordinance, RMC 4-9-200. The allegations in
the appeals that the procedural and substantive requirements of the City's development
APPELLANTS' MOTION FOR DECLARATORY RULING Buck0Gordon LLP
REGARDING STANDING - 8 2025 Ficot A"e,ue, Suite SOD
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REGARDING STANDING OIOI207.DOC
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regulations and Comprehensive Plan have been violated are squarely within the zone of
interests regulated and protected by that Ordinance.
The purpose of Site Development Plan Review is to ensure that the proposed
development is compatible with the City's plans and policies set forth in the
Comprehensive Plan. RMC 4-9-200.A. The appeals challenge The Landing's lack of
compliance with the mandatory review criteria in RMC 4.9.200.E, including violation of
Comprehensive Plan policies governing character of development and employment levels,
which are precisely the types of interests regulated by these regulations. The numerous
procedural violations alleged in the appeals are also within the express zone of interests
stated as the purpose of the Site Development Plan Review Ordinance. RMC 4-9-200.A.
In addition to a broad statement of purpose, the Site Development Plan Review ordinance
also includes intent statements that encompass an even wider range of interests to be
regulated and protected by the ordinance, such as the following:
16 • "[ t]o promote the orderliness of community growth, protect and enhance property
values and minimize discord and undesirable impacts of development both on-and
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18 • "[t]o promote high-quality design meeting criteria set forth in the City's Urban
Center Design Overlay";
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• "[ t]o protect and enhance the desirable aspects of the natural landscape and
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21 • "[t]o ensure convenience and safety of vehicular and pedestrian movement within
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the site and in relation to adjacent areas."
RMC 4-9-200.A. These statements of intent and purpose are virtually identical to a
number of the interests of ASE members like Brad Nicholson. As a resident of Renton
who cares about his own property and the appearance of the City, Nicholson has an active
APPELLANTS' MOTION FOR DECLARATORY RULING Buck0Gordon LLP
REGARDING STANDING - 9 2025 Fi"tA,eoce, 5cite 500
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interest in the integrity of the City of Renton's land use and environmental reVlew
processes and is seeking to ensure that the City abides by its own policies and procedures.
See Nicholson Dec!. at ~ 4.
In short, Nicholson has plainly met the zone of interest test for standing because
the appeals allege damages to the interests protected and regulated by the City's Site
Development Plan Review Ordinance and caused by the City'S failure to follow its own
laws.
9 C.
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ASE Has Associational Standing to Challenge the Director's Decisions.
ASE has standing to bring these appeals on behalf of its members because all three
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prongs of Washington's associational standing test are easily satisfied: Brad Nicholson
and other ASE members have standing to sue in their own right; ASE is seeking to protect
interests germane to its purpose; and the claims and requested relief do not require the
participation of ASE members. See International Ass'n of Firefighters, 146 Wn.2d at 213-
214.
I. ASE's members have standing to sue in their own right.
As discussed above, Brad Nicholson has standing to bring these appeals. ASE has
other members who are Renton residents, are similarly situated to Nicholson, and are
aggrieved by the Director's decisions. Nicholson Dec!. at ~7. These other members have
standing for the same reasons that Nicholson has standing. However, they have chosen to
remain anonymous because they fear reprisals from the City. See Nicholson Dec!. at ~ 12.
APPELLANTS' MOTION FOR DECLARATORY RULING Buck0Gordon LLP
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Washington law requires only that "one member" of an organization have standing
in order to confer associational standing on the organization. East Gig Harbor Imp. Ass'n,
106 Wn.2d at 701. Here, because Brad Nicholson and other ASE members have standing
to sue in their own right, ASE has associational standing to sue on their behalf.
2. ASE is seeking to protect interests germane to its purpose.
ASE's purpose is to "advance its members' interest in the environment, land use
planning, and governmental fiscal integrity of the City of Renton." See Nicholson Dec!. at
'1]9. ASE is seeking to protect interests that are not only "germane to" but are identical to
this purpose. See Section IILB.3, supra. These appeals are a direct manifestation of ASE's
corporate purpose.
3. The claims and requested relief do not require the participation of ASE
members.
The ultimate question m the third prong of the associational standing test is
"whether the circumstances of the case and the relief requested make individual
participation of the association's members indispensable." International Ass'n of
Firefighters, 146 Wn.2d at 213-214 (internal citations and quotation marks omitted). The
claims asserted and the relief requested in these appeals require no participation by ASE
members whatsoever. The appeals seek only to have the Director's decisions remanded
and do not seek monetary damages. Compare International Ass'n of Firefighters, 146
Wn.2d at 213-214 (finding that third prong was established despite the fact that the
organization was "seeking monetary damages and not injunctive relief').
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APPELLANTS' MOTION FOR DECLARATORY RULING Buck0Gordon LLP
REGARDING STANDING -11 2025 F:cotA,eooe, 50ite 500
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IV. RELIEF REQUESTED
Appellants respectfully request that the Hearing Examiner issue a declaratory
ruling confirming that Brad Nicholson and ASE have standing to proceed with their
appeals of the Director's Site Plan Decision and the Director's Setback Decision.
Dated this 12.1\ay ofJanuary, 2007.
BUCK & ~?tD;:Q:I LLP
BY:=Tl~jd~~~~;=== Peter L. uc, BA #05060
Attorneys for Alliance for the South End
APPELLANTS' MOTION FOR DECLARATORY RULING Buck~Gordon LLP
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
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The Director's Administrative Site Plan Approval)
and
The Director's Administrative
Interpretation/Policy Decision
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LUA-06-071, SA-A
DECLARATION OF BRAD
NICHOLSON
I, Brad Nicholson, do hereby declare as follows:
I. I was born in Renton 47 years ago and have lived in Renton my whole life.
2. I currently reside in and own my home at 2811 Dayton Avenue Northeast in
Renton, Washington, less than two miles from the site of The Landing project. I am
employed by Boeing as a machinist and work at Boeing's facility located at 7755 East
Marginal Way South. My route of travel between home and work often takes me along
streets directly adjacent to and through The Landing site.
3. The Applicant for The Landing has questioned this route, arguing that "it is not
credible to believe that he would drive out of his way to take this route from his home to
work in Seattle." See excerpt from Applicant's Reply Memorandum, a true and correct
copy of which is attached hereto as Exhibit A. In response, I have prepared a map
showing my exact routes of travel between home and work. See Route Map, a true and
correct copy of which is attached hereto as Exhibit B. Like most commuters, I use several
different routes depending on traffic conditions, daily errands, and other factors that vary
from day to day. I have learned from experience that these are the quickest routes from my
home to work. I prefer to avoid 1-405, but circumstances sometimes force me to use the
freeway. The route that takes me along Park Avenue, which runs through The Landing
site, seems to be the shortest route. That route is currently inaccessible due to construction
relating to infrastructure work for The Landing. I have used this route in the past and hope
to do so in the future. In the meantime, I am suffering commuting delays due to my
ECLARATION OF BRAD NICHOLSON - 1
:IWPIASElSITE PLAN APPEAL\NICHOLSON DECLARATION 011206.DOC
Buck ~ Gordon LLP
2025 First Avenue, Suite 500
Seattle. WA 98121
(206) 382-9540
ORIG\NAL
1 inability to use this route. If there is any doubt about the accuracy or wisdom of these
routes, the Applicant is welcome to ride along with me before or after work. I would also
2 welcome any informed suggestions from the Applicant about how I might save time
commuting to and from work. Navigating the traffic problems in Renton can be extremely
3 challenging, especially anywhere near the on-ramps and off-ramps to SR-900 and 1-405 -
even without The Landing.
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4. I have a longstanding interest in the land use decisions of the City of Renton
and have participated extensively in public hearings and proceedings regarding The
Landing site, including filing a Petition for Review before the Growth Management
Hearings Board of the City'S decision to rezone this property (filed on September 6,2003)
and appealing the City's approval for the Boeing Renton Comprehensive Plan
Amendment Environmental Impact Statement ("BRCPA ErS").
5. The Landing proponents have identified their market area. My house is 2 miles
away from The Landing, within their 3-mile radius -clearly a proximity where their own
documents show a strong connection between the project and residents.
6. I participated in discussions in the spring of 2006 regarding the formation of a
nonprofit to represent citizens concerned about The Landing and encouraged that
approach, which resulted in the incorporation of the Alliance for South End (AS E).
7. I am contributing funds to ASE and expect to continue to do so in the future.
ASE has other members who I expect will similarly help with funding. I personally know
the other members of ASE. They are Renton residents who are similarly situated to me
and are aggrieved by the Director's Administrative Site Plan Approval and the Director's
Administrative Interpretation/Policy Decision. All of these members were duly elected as
members long before the appeals of these decisions were filed. All of them were consulted
regarding these appeals before they were filed. All who responded to the consultation
were in favor of filing the appeals.
8. I have been elected to the offices of Vice President and Secretary of ASE. I
17 keep corporate records for ASE, including minutes of meetings of ASE's board of
directors.
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9. ASE was established to advance its members' interest in the environment, land
use planning, and governmental fiscal integrity of the City of Renton. See excerpt from
Articles of Amendment, a true and correct copy of which is attached hereto as Exhibit C.
Pursuant to this purpose, the Director of ASE has made a practice of consulting members
in advance of decisions concerning appeals or litigation. ASE has memorialized this
historic practice by adopting the following policy:
The members shall be consulted by the director( s) in
advance of all major decisions concerning appeals or
litigation, including whether or not to appeal, whether to
dismiss appeals, whether to settle, etc. The corporation shall
carry out the directions of the members.
ECLARATION OF BRAD NICHOLSON - 2
,\WPIASElSITE PLAN APPEALIN[CHOLSON DECLARATION O1l206.DOC
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2025 First Avenue, Suite 500
Seattle, WA 98121
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10. ASE has amended its bylaws to formalize its members' control over the
direction of the corporation. ASE's members exercise such control by expressing their
views in consultations with the board of directors in advance of all major decisions
concerning appeals, litigation or settlement of claims, as required by ASE's bylaws, and
by voting on matters set forth in ASE' s bylaws, including but not limited to the election of
directors and any increases or decreases in the number of directors, pursuant to RCW
24.03.100; the removal of directors at any time with or without cause or notice, pursuant
to RCW 24.03.103; all amendments to ASE's bylaws, pursuant to RCW 24.03.070; and
all amendments to ASE's Articles of Incorporation, pursuant to RCW 24.03.165(1).
Attached hereto as Exhibit D is a true and correct copy of an excerpt from ASE's
amended bylaws.
11. Accordingly, ASE's members were consulted in advance of ASE's decision to
appeal the Director's Administrative Site Plan Approval and ASE's decision to appeal the
Director's Administrative Interpretation/Policy Decision.
12. I and other ASE members have observed great anger, retaliation, and
intimidation in Renton City Hall toward people who oppose The Landing and the Mayor's
wishes in general. In particular, the fact that The Landing's opponents are now
represented by an attorney is a source of resentment. When I fought my previous battles
on The Landing the City and the property owner had platoons of attorneys against me. I
know they like that, but I like having an attorney and do not approve of their anger. As a
result of this anger, there is a desire to protect the identity of other ASE members who fear
that this anger will be taken out on them in their various dealings with the City and City
Hall. People are frightened of retaliation. Being able to shield the identities of members is
important.
13. As a result of the City'S failure to hold a public hearing on any decisions
approving The Landing project, I am suffering harm from an inability to participate and
voice objections to the City Hearing Examiner and the City Council. I am an active, vocal
citizen. I am injured by the denial of my rights to hearings. The bottom line is a classic
bait-and-switch without a single public hearing. The City promised and adopted an urban
village concept. It has switched to a suburban, auto-oriented, big box shopping center and
aggressively avoided any hearing while switching.
14. The adopted City laws require a compact, urban development with a
compatible mix of uses, orientation of buildings to streets to emphasize urban character,
creativity in building and site design, and no parking lots between structures and streets.
They also require a significant employment base, with at least 50 employees per acre. The
Applicant estimates only 350 new employees (or 8 employees per acre) would work on
site. I will suffer harm from the inappropriate presence of a suburban-style development in
an urban zone, decreased propcrty values, damage to the appearance of the City, and
failure to achieve the required employment base.
15. I was a participant in the earlier proceedings leading to the development
regulations and Comprehensive Plan designations and requirements that called for these
ECLARATION OF BRAD NICHOLSON - 3
:IWPIASE\SITE PLAN APPEALINICHOLSON DECLARATION 011206.DOC
Buck ~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
1 designations. Compliance with the law with regard to these designations would lead to the
quality of development, shopping and employment that I was promised as a nearby
2 resident. Failure to comply with the law will lead to a much inferior experience and injure
me and my property values. Without an appeal, that is what will happen.
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16. I own my home and additional adjacent residentially zoned properties. All of
my properties will have lesser value if the Landing property is developed at a lesser
standard than mandated by the City of Renton's Comprehensive Plan and development
regulations. The Landing as approved in the Director's Administrative Site Plan Approval
is at a lesser standard and will result in less value for my property than if the law was
followed.
17. The Landing is the largest available tract of land in the City to create an urban
village. If it develops, as required by the law, including the development regulations and
Comprehensive Plan, I will visit there often as a shopper, cinema viewer, and, when I
retire from Boeing, likely an employee. As I get older, The Landing's residential
component is a place I might take advantage of for living. I am injured by the failure to
follow the law in the Site Plan approval. The development regulations and Comprehensive
Plan are being abandoned and I will not get the benefit of those laws without this appeal.
There is a vast difference between the Urban Center allowed in the development
regulations and Comprehensive Plan and the big box retail development without an
appropriate employment base proposed by The Landing Site Plan. I am injured by the
City's non-compliance with the law.
18. As a result of the unanalyzed and unmitigated traffic impacts caused by the
project, I will suffer harm from increased traffic and from delays and increased risk in
traveling along the roads I depend upon to commute and travel generally in the
community. All of the planning underlying The Landing assumed ramp improvements to
1-405. To date these ramps are unplanned and unfunded. The traffic from The Landing
will be much worse for me.
19. I use the shores and waters of Lake Washington, Gene Coulon Park, the Cedar
River, and Johns Creek, and specifically the shoreline and offshore areas immediately
adjacent to The Landing project, for recreational activities including fishing. I have a
small canoe and boat from which I fish these waters.
20. The BRCP A required all future development to build storm water systems in
compliance with the 2001 Department of Ecology standards. The Landing's proponents
now appear to rely, at least in part, on the 1990 King County Surface Water Design
Manual, an outdated set of storm water standards that does not provide the same level of
protection as the 2001 Department of Ecology standards. In a recent hearing proceeding,
the Applicant's attorney refused to stipulate that the Applicant would adopt Ecology's
2001 standards without seeking variances or exceptions.
21. As a result of the stormwater impacts caused by the project, I will suffer harm
from decreased water quality in Lake Washington, the Cedar River, and Johns Creek and
from harm to Chinook salmon and other salmonids that use these water bodies.
22. I have personal knowledge of the facts stated in this declaration.
ECLARATION OF BRAD NICHOLSON - 4
:IWPIASEISITE PLAN APPEALINICHOLSON DECLARATION 011206.DOC
Buck~Gordon LLP
2025 First Avenue, SUite 500
Seattle, WA 98121
(206) 382·9540
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I declare under the penalty of perjury under the laws of the State of Washington
that the foregoing is true and correct.
DATED this f 2. day of Jammry, 2007.
BRAD NICHOLSON
DECLAAA TION OF BRAD NICHOLSON -5
,\WPIASE'5ITE PLAN Ai'PEALINICHOLSON DECLARATION OII206.DOC
Buck~Gordon lLP
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Here, ASE relies on a declaration of one alleged non-voting member to establish -
2 injury in fact and standing. Upon examination of the Declaration, it contains only general
3 assertions of injury; it does not contain supporting evidentiary facts to establish a specific,
4 real, present and concrete injury .38
5 1. Trame
6 Mr. Nicholson alleges that his commute takes him along streets "adjacent to and
7 through The Landing site," and he will be harmed by the "unanalyzed and unmitigated traffic
8 . impacts caused by the project. ,,39 Mr. Nicholson does not have standing to raise this issue.
9, First, Mr. Nicholson's home is approximately two miles away from the project site,
10 ! and is separated by SR-900 and 1-405, the major freeways in the area. Standing doctrine
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1 I ! requires that a plaintiflhave "a sufficient geographical nexus to the site of the challenged ,
12 I project."'o In this populated urban community, a distance of two miles from the site,
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1 3 ! separated by numerous roads and thoroughfares, is clearly inadequate to demonstrate a
14 I specific injury to Mr. Nicholson. Moreover, it is not credible to believe that he would drive
15 lout of his way to take this route from his home to work in Seattle.
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16 I Second, Mr. Nicholson's alleged injury is generalized, not specific. Just as
17 I Mr. Nicholson may choose to shop, recreate or drive out of his way to take this particular
18 I route to work each day, so too may many other Renton and non-Renton citizens. Such a
19 generalized claim, however, is not sufficient to grant him standing.
20 Third, the alleged injury is also speculative. Mr. Nicholson states that he will "suffer
21 harm from increased traffic and from delays and increased risk in traveling along the roads.,,41
22 However, Mr. Nicholson provides no evidentiary basis for any of these assertions. Where a
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n The appeals should be dismissed on (he basis of the pleadings and undisputed facts; however, movant
hereby reserves the right to inquire into these matters at hearing since the Examiner does not allow discovery.
19 Nicholson Dec!.1[~ 8,9.
40 Tilden Park, 806 A.2d at 1208, quoting Sabine River Aulh. v. Texas Water Conservation Assoc" 951 F.2d
669,674 (5th Cir. 1992).
41 Nicholson Dec!. 1[9.
Applicant's Reply 10
ASE Lack of Standing -Page 13 of 19
EXHIBIT A
HIL{.IS CLARK MARTIN &
PETERSON, P.S.
500 GaHand Building, 1221 Second Ave
Seattle WA 98101-292,
206.623.1745; fax 206.623.7789
EXHIBITB
::0 o
C
-I m
3: »
"tI
1\
EXlllBIT A
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
AL~CEFORSOUTHEND
The undersigned, in order to fonn a nonprofit corporation under Chapter 24.03 of the
Revised Code ofWashingtoll, hereby signs and verifies the fonowing Articles oflncorporation:
ARTICLE I
NAME
The name of the corporation is Alliance for South End.
ARTICLE II
MEMBERSffiP
Qualification for membership in the corporation shall he set out in the corporation's
Bylaws.
ARTICLEll
DURATION
The duration of the corporation shall be perpetual.
ARTICLE IV
PURPOSES AND POWERS
Section 4.1 Purposes. To advance its members' interests in the environment, land use
planning, and govermneotal and fiscal integrity.
Section 4.2 Powen. In geoeral, iUld subject to such liwitations and couditions as are
or may be prescribed by law, or in the corporation's Articles ofincorpomtion or Bylaws, the
cOlporation shall have all powers which now or hereafter are conferred by law upon a
corporation organized for the purpose set forth above, or are necessary or incidental to the.-
powers so conferred, or are conducive to the attainment of the corporation's purpose.
ARTICLE V
DIRECTORS
The management of the corporation will be vested in a board of at least one director. The
numher, qualifications, terms of office, manner of election, time iUld place of meeting, and
powers and duties of directors shall be prescribed by the Bylaws of the corporation.
Sl!A 1813242\'288-&&
EXHIBITC
AMENDED BYLAWS OF ALLIANCE FOR SOUTH END (excerpt)
Section 1.2 Rights of Members. The Members shall have the right to vote on matters
as set forth in these Bylaws, including:
(a) the election of directors, pursuant to RCW 24.03.100;
(b) any increases or decreases in the number of directors, provided that no
decrease in number shall have the effect of shortening the tenn of any incumbent, pursuant to
RCW 24.03.100;
(c) the removal of directors at any time with or without cause or notice,
pursuant to RCW 24.03.103;
(d) all amendments to these Bylaws, pursuant to RCW 24.03.070;
(e) all amendments to the corporation's Articles ofIncorporation, pursuant to
RCW 24.03.165(1);
(f) any sale, lease, exchange, or other disposition of all or substantially all, of
the corporation's property and assets, ifnot in the ordinary course of business, pursuant to RCW
24.03.215(1 );
(g) any plan of merger or consolidation of the corporation, pursuant to RCW
24.03.195(1 );
(h) any voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03.220(1);
(i) any plan providing for the distribution of assets in dissolution, pursuant to
RCW 24.03.230(1); and
U) any other matters that may properly be presented to the Members for a
vote, pursuant to the corporation's Articles of Incorporation, Bylaws, or action of the board of
directors, or by operation oflaw.
[ .. ·1
Section 2.7 Consultation with Members Regarding Major Decisions. The board of
directors shall advise and seek input from the Members in advance of all major decisions
concerning appeals, litigation or settlement of claims.
£XHIBIT D
Y'\WP\ASEIBYLAWS\BYLAWS EXCERPT DOC
II
CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
I
2
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6
7 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
8 In the Matter of the Appeals of )
)
9 Alliance for South End (ASE) re: )
)
10 The Director's Administrative Decision )
Designating The Landing Master Plan )
II Application a Planned Action )
)
12 The Director's Master Site Plan Approval )
) 13 -------------)
Alliance for South End (AS E) and )
14 Brad Nicholson re: )
)
15 The Director's Administrative Site Plan Approval)
and Interpretation/Policy Decision )
16 )
17
NO. LUA-06-071, SA-A
CERTIFICATE OF SERVICE
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I hereby certify that, on January 12,2007, I served the foregoing MOTION TO REMAND SITE
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APPROVAL, DECLARATION OF PETER BUCK, MOTION FOR DECLARATORY
RULING REGARDING STANDING and DECLARATION OF BRAD NICHOLSON and this
CERTIFICATE OF SERVICE by delivering, where indicated, via email, hand delivery and U.S.
Mail, copies of each thereof to:
IIII
IIII
II!! ORIGINAL
CERTIFICATE OF SERVICE -I Bucke Gordon LLP
Y:\WPIASElSITE PLAN APPEALICERTIFICATE OF SERVICE.2007.DOC 2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382·9540
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Ms. Zanetta Fontes
13 Renton City Attorney
Warren, Barber, & Fontes
14 100 S. Second Street
Renton, W A 98057
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o
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I2l
Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
Mr. Jerome Hillis
Hillis Clark Martin & Peterson
1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
o Via Facsimile
IIIl Via Email o Via Hand Delivery
I!!:l Via U.S. Mail
Mr. Lawrence J. Warren
Renton City Attorney
Warren, Barber, & Fontes
100 S. Second Street
Renton, W A 98057
o Via Facsimile
III Via Email o Via Hand Delivery
II!! Via U.S. Mail
18 Subscribed to under penalty of perjury under the laws of the State of Washington this 11TH
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CERTIFICATE OF SERVICE - 2
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LeM.Ovedie
Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
EXIllBlT A
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
ALLUNCE FOR SOUTH END
The undersigned, in order to fonn a nonprofit corporation under Chapter 24.03 of the
Revised Code of Washington, hereby signs and verifies the following Articles of Incorporation:
ARTICLE I
NAME
The name of the corporation is Alliance for South End.
ARTICLED
MEMBERSHIP
Qualification for membership in the corporation shllll be set out in the corporation's
Bylaws.
ARTlCLEm
DURATION
The duration of the corporation shall be perpetual.
ARTICLE IV
PURPOSES AND POWERS
Section 4.1 Purposes. To advance its members' interests in the environment, land use
plamJing, and governmental and fiscal integrity.
Section 4.2. Powers. In genera!, and subject to such limitatiOIIB and conditions as are
or n:my be prescribed by law, or in the corporation's Articles of Incorporation or Bylaws, the
corporation shall have all powers which now or hereafter are conferred by law upon a
corporation organized for the purpose set forth above, or are necessary or incidental to the.-
poWers so conferred, or are conducive to tbe attainment of the cmporation's purpose.
ARTICLE V
DIRECTORS
The management of the corporation will be vested in a board of at least one director. The
number, qualifications, tezms of office, manner of election, time and place of meeting, and
powers and duties of directors shall be prescribed by the Bylaws oftha corporation.
SEA 1B13lA2v2 88·88
ARTICLE VI
LIMITATION OF DIRECTORS' LIABll..ITY
A director shall have no liability to the corporation for monetary damages for conduct as
R director, except for acts or omissions that involve intentional misconduct by the director, or a
knowing violation of law by the director, or for any transaction from which the director will
personally receive a benefit in money, property or services to which the director is not legally
entitled. If the Washington Nonprofit Corporation Act is hereafter amended to authorize
corporate action further eliminating or limiting the persona1liability of directors, then the
liability of a director shall be eliminaied or limited to the full extent permitted by the Washington
Nonprofit Corporation Act, as so amended. Any repeal or modification of this Article shall not
adversely affect any right or protection of a director of the corporation existing ai the time of
such repeal or modification for or with respect to an act or ODlission of such director occnrring
prior to such repeal or modification.
ARTiCLEVll
INDEMNIFICATION
Section 7.1 Right to Indemnification of Directors and Officers. Each person who
was, or is threatened to be made a party to or.is otherwise involved (,lllCluding, without
1imi1ation, as a witness) in my actual or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact thai he or she is or was a director
or officer of the corporation or, while a director or officer, he or she is or was serving ai the
request of the corporation as a director, trustee, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including sen'ice with respect to
employee benefit plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, trustee, officer. employee or agent or in any other capacity ~e serving
as a director, trustee, officer, employee or agent, shall be indemnified and held haJ:m1ess by the
corpora'tion, to the full extent pmmitted by applicable Jaw as then in effect, against all expense,
liability and loss (including aitomeys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts to be paid in settlement) actually and reasonably incurred or suffered by such
person in connection therewith, and such indemnification shall continue as to a person who has
ceased to be a director, trustee, officer, employee or agent and sball inure to the benefit of his or
her ~eirs, ClXccutors and administrators; provided, however, thai except as provided in
Section 7.2 of this Article with respect to proceedings seeking solely to enforce rights to
indemnification, the corporatipn shall indenuUfy any such person seeking indemnification !n
coonection with a proceeding (or part thereof) initiated by such persall only if such proceeding
(or part thereof) was authorized by the board of directors of the COrporatiOIL The right to
indemt,jfication conferred in this Section 7.1 shall be a contract right and shall include the right
to be paid by the corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it
sball ultimately be determined thai sucb director or officer is not entitled to be indemnified under
this Section 7.1 or otherwise.
SEA 18132.41v2 S!-BS
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Section 7.2 Right of Claimant to Bring Suit. If a claim for which indemnification is
required under Section 7. J oUlis Article is not paid in full by the corporation within sixty (60)
days after a written claim has been received by the corporation, except in the case of a claim for
expenses incurred in defending a proceeding in advance of its final disposition, in which case the
applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amoWl! of the claim and, to the extent f!\Iccessfui in
whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such
claim. The claimant shl1l1 be presumed to be entitled to indemnification under this Article upon
submission oca written claim (and, in an action brought to enforce a claim for expenses inmrrred
in defending any proceeding in advance of its final disposition, where the required undertaking
has been tendered to the corporation), and thereafter the corporation shl1ll'have the burden of
proof to overcome the presumption that the claimant is so entitled. Neither the failure of the
corporation (mcluding its board of directors or independent legal counsel) to have made a
detenninati.on prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the circumstances nor an
actual determination by the corporation (including its board of directors or independent legal
counsel) that the claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses shl1l1 be a defense to the action or create a presumption that the
claimant is not so entitled.
Section 7.3 Nonexclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final disposition conferred in
this Article shall not be exclusive of any other right which any person may have or hereafter
acquire tmder any statute, provision of the Articles of Incorporation, Bylaws, agreement, or vote
of disinterested directors or otherwise. .,
Section 7.4 Insunnce, Contract9 and Funding. The corporation may maintain
insurance at iU expense, to protect itself and any director, trustee, officer, employee or agent of
the corporation or another corporation, partoership, joint venlure, trust or other enterprise against
any expense, liability or loss, whether or not the corporation would have the power to indemnifY
sucb person against such expense, liability or loss under F£W 24.03.043 of the Washington
Nonprofit Corporation Act and RCW 23B.08.51 0 of the Washington Bushtess Corporation Act,
or any successor provisions. The corporation may enter into contracts with any director or
offu;er of the corporation in furtherance of the provisions of this Article and may create a trust
~ grunt a security interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect indemnification as _
provided in this Article. '
SectiDn 75 Indemnification of Employee9 and Agents oftbe Corporation. The
corporation may, by action of its board of directors from time to time, provide indemnification
and pay exp~ses in advance of the final disposition of a proceeding to employees and agents of
the corporation with the same scope and effect as the provisions of this Article with respect to
the indemnification and advancement of expenses of directors and officers of the corporation or
pursuantto rights granted pursuant to, or provided by, the Washington Business Corporation Act,
as applied to nonprofit corporations, or ptherwise.
SEA. 181J242v2 aWl
ARTICLE VIII
AMENDMENT OF BYLAWS
. The authority to make, alter, amend or repeal Bylaws is vested in the board of directors,
and may be exercised at any annnal or special meeting of the board.
ARTICLE IX
DISSOLUTION
Upon dissolution or winding up, all the corporation's remaining assets shall be
distnbuted by the board of directors to any othe~ organization or to any of the members as the
" board of directors may determine in its scile discretion.
'.
"
SEA 18\32421'288-88
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for the South End (ASE) and Brad
Nicholson re:
The Director's Administrative Plan Approval
And
The Director's Administrative Interpretation!
Policy Decision
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No. LUA-06-071, SA-A
APPELLANTS' MOTION TO
REMAND SITE PLAN
APPROVAL
I. INTRODUCTION
Renton has adopted a Comprehensive Plan and development regulations for
former Boeing property that call for a new urbanist development. This is the adopted law
of the City of Renton.
The Landing's proposed Site Plan does not reflect the design and use elements
required by the Comprehensive Plan and development regulations. Instead, the plan calls
for a suburban, auto-oriented shopping center. It is not surprising that the Site Plan does
not comply with the laws of the City.
The Applicant could have designed its project in compliance with the law. It has
not. The Applicant could have proposed that the law be changed to accommodate its
APPELLANTS' MOTION TO REMAND - 1
Bucke Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121~3140
(206) 382-9540 Y:\WP\ASE\Site Plan Appeal\motion _tQJemand.OI1207d.doc
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plans. It has not. The Renton City Council, on its own initiative, could have changed its
laws. It has not.
What is planned and permitted is illegal. The City Council can change local laws.
But the Hearing Examiner is charged with applying Renton's laws as they exist. That
should be done.
Appellants herein have appealed two decisions relating to The Landing: (I) the
Administrative Site Plan Approval (hereinafter the "Site Plan Decision"); and (2) the
Administrative Interpretation/Policy Decision (hereinafter the "Setback Decision"). This
motion addresses only the Site Plan decision. J
II. RELIEF REQUESTED
The Hearing Examiner should rule that the Site Plan does not comply with the
City's development regulations and Comprehensive Plan (which has real regulatory effect
in Renton under RMC 4-9-200.E.I(a)). The Examiner should remand the Director's Site
Plan Decision for further proceedings consistent with such ruling.2
III. STATEMENT OF FACTS
On August 17, 2006, the Director issued a decision that approved the Site Plan for
The Landing. The project is described as a 38.22 acre site located within the Urban Center
-North I (UC-Nl) zoning designation and includes a four-level parking garage with 675
J If this matter proceeds to hearing, Appellants reserve the right to address the Setback Plan Decision and
any other issues not specifically argued in this motion.
2 The Director's Site Plan Decision should also be remanded for a public hearing in accordance with RMC
4-9-200.G(13) and consequently for Hearing Examiner action pursuant to 4-8-110.E(7)(b). This is discussed
in Section IV.C.
APPELLANTS' MOTION TO REMAND - 2
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2025 First Avenue, Suite 500
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parking stalls in addition to 1,955 surface parking stalls. The City has held no public
hearing on The Landing's Master Plan or Site Plan.
IV. ARGUMENT
A. The Site Plan Does Not Comply With the City's Land Use Regulations.
The City's Site Plan Development Review Ordinance (RMC 4-9-200), which
governs review of Site Plans, requires "conformance with existing land use regulations."
RMC 4-9-200.E.l (b). The Landing's proposed Site Plan contains numerous violations of
the City's land use regulations, the most egregious of which include the following:
• Parking between buildings and pedestrian-oriented streets. North 8th Street
and Park Avenue North are both pedestrian-oriented streets. RMC 4-3-
1 00.E.2(b) prohibits parking between buildings and pedestrian-oriented streets.
Three obvious violations are shown on Exhibit A.
• Off-street parking and vehicular access on pedestrian-oriented street. Over
900 feet ofthe Park Avenue North street frontage and over 300 feet of North
10th street are dedicated to ofl~street parking and vehicular access. RMC 4-3-
1 OO.F.I (b )(i) requires that no more than 60 feet of street frontage along a
pedestrian-oriented be occupied by off-street parking and vehicular access. See
Exhibit B.
• Surface parking driveways on pedestrian-oriented streets. The Site Plan
shows nine surface parking access driveways from North 10th Street and Park
Avenue North, both pedestrian-oriented streets. RMC 4-3-100.F.4(b) prohibits
such driveways on pedestrian-oriented streets. See Exhibit C.
• Entrances facing pedestrian-oriented streets. The Site Plan locates primary
entrances for several buildings on fa9ades facing parking lots. For example, the
buildings 202 and 407 are oriented to the north toward a surface parking lot
rather than toward Park Avenue North. RMC 4-3-1 OO.E.3(b) requires that, on
pedestrian-oriented streets, the primary entrance of eaeh building be located on
the fa9ade facing the street. See Exhibit D.
24 • Buildings on designated pedestrian-oriented streets to be located adjacent
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to the sidewalk. The Site Plan fails to locate buildings adjacent to sidewalks.
APPELLANTS' MOTION TO REMAND - 3
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Seattle, WA 98121-3140
(206) 382-9540
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For example, buildings 202 and 407 are not located adjacent to sidewalks along
Park Avenue North. RMC 4-3-1 00.E.2(b) requires buildings on designated
pedestrian-oriented streets to be located adjacent to the sidewalk. See Exhibit E.
• Unscreened Loading Docks. The Site Plan fails to screen at least seven truck
loading docks from view of abutting public streets. RMC 4-2-120.E requires the
parking, docking, and loading areas for truck traffic to be both off-street and
screened from view of abutting public streets. See Exhibit F.
• Parking in front of bUilding. The Site Plan includes a large surface parking lot
between building 200 and North lOth Street. RMC 4-3-1 OO.F(b )(i) requires
parking on designated pedestrian-oriented streets to be at the side and/or rear of
a building. See Exhibit G.
• Setbacks. The Site Plan shows numerous buildings whose front yards and side
yards are greater than five feet in width from the street. For example, the
setback between Park Avenue North and building 202 is approximately 90 feet
in width. RMC 4-2-120.E requires a maximum setback of five feet for both
front yards and side yards along a street. See Exhibit H.
B. The Landing's Proposed Site Plan Fails to Conform to the City's
Comprehensive Plan, which in Renton has regulatory effect.
The Site Plan Development Review Ordinance also requires that Site Plans
conform to "the Comprehensive Plan and its elements, goals, objectives, and policies."
RMC 4-9-200.E.l(a); see also RMC 4-9-200.A. The Landing site is within the Urban
Center North Comprehensive Plan land use designation. The Proposed Site Plan fails to
comply with many of the Urban Center North policies found in the City's Comprehensive
Plan, including the following:
• Policy LU-265: Support more urban intensity of development (e.g. building
height, bulk, landscaping, parking standards) than with land uses in the suburban
areas ofthe City outside the Urban Center.
• Policy LU-267: Support a range and variety of commercial and office uses.
• Policy LU-269: Co-locate uses within a site and/or building in order to promote
urban style, mixed-use development.
APPELLANTS' MOTION TO REMAND - 4
Y;\WP\ASE\Site Plan Appeal\motion_to Jemand_Ol1207d.doc
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121,3140
(206) 382-9540
I • Policy LU-287: Discourage parking lots between structures and street right-of-
way.
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• Policy LU-288: Orient buildings to streets to emphasize urban character,
3 maximize pedestrian activity and minimize automobile use within the District.
4 • Policy LU-266: Achieve a mix of uses that improves the City's tax and
employment base.
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• Policy LU-271: Support uses that sustain minimum Urban Center employment
6 levels of 50 employees per gross acre and residential levels of 15 households per
gross acre within the entire Urban Center.'
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While one might argue that individual criteria are general, nebulous statements, it is self-
evident that the Site Plan as a whole is a typical suburban, auto-oriented shopping center:
It is simply not what the City'S Comprehensive Plan calls for. Additionally, Policies LU-
266 and LU-271 use the directive verbs "achieve" and "support." The Landing has not
achieved a mix of uses and does not support such required employment levels. The
proposed Site Plan is a retail and a residential plan.
The City may want to approve a suburban, auto-oriented oriented shopping center.
If so, it needs to change its Comprehensive Plan and development regulations. Neither the
City nor Applicant can simply ignore them.
IIII
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, The potential elimination of office uses significantly impacts the range and quantity of employment
opportunities that will be available on the site. As proposed, the project fails to create the concentrated
employment area originally proposed for the site. Center Oak's Conceptual Plan, reviewed by the City
Council and designated as a Planned Action, estimated 2,646 direct jobs and 622 indirect jobs would be
created by the development of the site. The SEP A checklist submitted by Harvest Partners for The Landing
estimates only 350 new employees would work on the site. This amounts to less than eight (8) per acre.
4 The Director's Site Plan Decision failed to consider any of these Comprehensive Plan policies. This error
constitutes independent grounds for remand.
APPELLANTS' MOTION TO REMAND - 5
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Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
1 C. The Site Plan Decision Violated Procedural Requirements of the City's Site
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Development Plan Ordinance.
The Director's Site Plan Decision failed to comply with the procedures prescribed
in RMC 4-9-200 for site plan approvals. A public hearing before the Hearing Examiner is
required by RMC 4-9-200.0 because the project exceeds the thresholds for "Large Project
Scale" in RMC 4-9-200.D(2)(b). 5 Moreover, because a public hearing was required, the
Hearing Examiner was the appropriate official to take action on this project, not the
Director. RMC 4-9-200.G(12).
1. The Director Illegally Bypassed the Code-Required Public Hearing.
The City'S Site Development Plan Review ordinance, RMC 4-9-200, provides the
following criteria to determine whether a public hearing is required as part of the site plan
review process:
A public hearing before the Hearing Examiner shall be
required in the following cases: ...
2. Site Plan Review:
b. Large Project Scale: The proposed project is more
than: ...
v. Three hundred (300) parking stalls; or
vi. Ten (10) acres in size of project area.
RMC 4-9-200.D (emphasis added). Therefore, if a project includes more than 300 parking
stalls or encompasses an area greater than 10 acres, a public hearing is required.
Here, as stated in the Director's Site Plan Decision, the plan calls for 675 garage
parking stalls and 1,955 surface parking stalls, for a total of 2,630 parking stalls.
5 A public hearing is also required because there are significant unresolved concerns about the proposal.
RMC 4-9-200.D(2)(a).
APPELLANTS' MOTION TO REMAND - 6
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2025 First Avenue, Suite 500
Seattle, WA 98121-3140
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Similarly, as proposed The Landing's site consists of 38.22 acres, an area that exceeds the
project area threshold for a public hearing by a factor of four.
Thus, both The Landing's number of parking stalls and project area exceed the
"Large Project Scale" parameters that trigger the public hearing requirement.
2. The Director Illegally Usurped the Hearing Examiner's Decision Making
Authority.
Pursuant to the Renton's Municipal Code, the Hearing Examiner is the proper
authority to approve the Landing's Proposed Site Plan. RMC 4-9-200.0(12} provides:
[t]or projects requiring a public hearing pursuant to subsection D of this
Section, the Hearing Examiner shall take action on the proposed site
development plan following the hearing process in subsection 013 of this
Section.
See also RMC 4-8-070.H(1 )(n) (providing for Hearing Examiner review of and action on
"[ s lite plan approvals requiring a public hearing"). By ignoring the requirement for a
public hearing, the Director's decision also usurped the Hearing Examiner's authority to
review and make decisions on the Site Plan for The Landing.
D. The Recent Wal-Mart Decision Shows Why it is Risky to Rush Ahead
Ignoring Land Use Regulations.
It is obvious that the Landing does not comply with the City's Comprehensive
Plan and development regulations. To date, the City'S Development Services Division and
the Applicant have avoided their day of reckoning through victory in a standing motion
and then the delay of a hearing on this matter. The appeals were filed on August 31, 2006,
and the first hearing for oral argument is scheduled for March 27,2007. Meanwhile, the
Applicant speeds ahead pulling building permits.
APPELLANTS' MOTION TO REMAND - 7
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It is time for the Hearing Examiner to apply the laws of the City of Renton. Further
temporizing could result in disastrous consequences for the City. If the Applicant proceeds
with construction in reliance on these illegal approvals, the City could end up with a
building that is not allowed to open or must be tom down.
The danger of ignoring land use regulations was just illustrated in the City of
Chelan. See Lynda V. Mapes, "Chelan Wal-Mart built, but will it ever open?," SEATTLE
TIMES, January 5,2007, attached hereto as Exhibit I. A Wal-Mart developer built a store,
stocked it, hired 200 people, and prepared a grand opening. A trial court judge has just
ruled that the Wal-Mart building is illegal. See Court's Memorandum Decision attached
hereto as Exhibit J. The successful plaintiffs are asking for abatement. See Proposed Order
Granting Petition attached hereto as Exhibit K.
The Applicant is not the only party at risk. The City could also be liable to the
Applicant for significant financial damages resulting from failure to enforce its
development regulations. See Radach v. Gunderson, 39 Wn.App. 392, 695 P .2d 128
(1985) (holding plaintiffs were entitled to equitable relief at the expense of the city where
builders of house innocently violated zoning code because of city's negligence in failing
to enforce a setback ordinance); see also Haslund v. City a/Seattle, 86 Wn.2d 607, 547
P .2d 1221 (1976) (holding City of Seattle liable for damages to holders of invalidly issued
city permit).
IIII
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APPELLANTS' MOTION TO REMAND - 8
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V. CONCLUSION
The City's Comprehensive Plan and development regulations are clear. The Site
Plan is not in confonnance with the law as currently enacted. If Renton's City Council
wishes to change the law, it can. The Hearing Examiner's only option, however, is to
uphold the current law. He cannot be expected to misconstrue or ignore City ordinances.
For all the reasons set for above, Appellants respectfully request that the Hearing
Examiner find that the Site Plan does not comply with the City's development regulations
and remand the Site Plan Decision for further proceedings consistent with the provisions
of Renton's MUniCi~~.
Dated this day of January, 2007.
BUCK
By: ~ Pe--;t-er'L'."B~u---'ck\","'""""S"'B'7A---;#-';;O"'5""06"'0----
APPELLANTS' MOTION TO REMAND - 9
Y:\WP\ASEISitc Plan Appeal\motion_to Jemand.OlJ207d.doc
Attorneys for ASE and Brad Nicholson
Buck e Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
THE LANDING
Code Violation Exhibit A
RMC 4-3~100.E.2.b
prohibits parking between the building
and pedestria n-oriented streets.
, parking between building and T pedestrian-oriented street
This is also a violation of RMC 4-9-200.E.1 (a),
which requires Site Plans to conform to the
Comprehensive Plan.
o Policy LU-287 of the Comprehensive
Plan states:
"Discourage parking lots between
structures and street right-of-way,"
... ...... ...
.ll:. ....
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THE LANDING
Code Violation Exhibit B
RMC 4-3-100.F.1.b.i
requires that no more than 60 feet
of street frontage along a
pedestrian-oriented street be
occupied by off-street parking
and vehicular access.
I more than 60 feet of street
frontage occupied by
off-street parking
... .....
""
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A
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THE LANDING
Code Violation Exhibit C
RMC 4-3-100.F.4.b
prohibits surface parking driveways
on pedestrian-oriented streets.
* surface parking driveway on
designated pedestrian-
oriented street
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•
= .. ." ... .... .... -""" ..... ..... ... "" ,..,.
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THE LANDING
Code Violation Exhibit D
RMC 4-3-100.E.3.b
requires that on pedestrian-oriented
streets, the primary entrance of each
building be located on the facade
facing the street.
* primary entrance of building
not oriented toward
pedestrian-oriented street
This IS also a violation of RMC 4-9-200.E.1(a).
which requires Site Plans to conform to the
Comprehensive Plan .
• Policy LU-288 of the Comprehensive
Plan states:
"Orient buildings to streets to
emphasize urban character, maximize
pedestrian activity and minimize
automobile use within the District:
.:.. .,.
.ll:. ... = = .... , ... t
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THE LANDING
Code Violation Exhibit E
RMC 4-3-100.E.2.b
requires buildings on designated
pedestrian-oriented streets to be
located adjacent to the sidewalk,
except where pedestrian-oriented
space is located between the
building and the sidewalk.
* buildings on deSignated
pedestrian-oriented street not
located adjacent to the sidewalk
This is also a violation of RMC 4-9-200.E.1 (a),
which requires Site Plans to conform to the
Comprehensive Plan .
• Policy LU-288 of the Comprehensive
Plan states:
'Orient buildings to streets to
emphasize urban character, maximize
pedestrian activity and minimize
automobile use within the District." ,~
"l'li"
.m. ..'" =. ... ...
~
~
THE LANDING
Code Violation Exhibit F
RMC 4-2-120.E
requires parking, docking, and
loading areas for truck traffic
to be off-street and screened
from view of abutting public streets.
* unscreened docking & loading
area for truck traffic abutting
public street.
.:"
'"
() o
.l:. "' .
~
THE LANDING
Code Violation Exhibit G
RMC 4-3-100.F.1.b.i
requires parking on designated
pedestrian-oriented streets
to be at the side and/or rear
of a building
+
parking lots located between
front of building and
pedestrian-oriented street
This is also a violation of RMC 4-9-200E 1 (a).
which requires Site Plans to conform to the
Comprehensive Plan .
• Policy LU-287 of the Comprehensive
Plan states:
"Discourage parking lots between
structures and street right-of-way."
...
""'" ... :: ... '" -'::'
.. =.
JU
'" ..... ...
~
THE LANDING
Code Violation Exhibit H
RMC 4-2-120.E
requires a maximum setback of five
feet for front yards and side yards
along a street.
... setback exceeding five feet T maximum
This is also a violation of RMC 4-9-200.E.1 (a),
which requires Site Plans to conform to the
Comprehensive Plan.
o Policy LU-288 of the Comprehensive
Plan states
"Orient buildings to streets to emphasize
urban character, maximize pedestrian
activity and minimize automobile use
within the District."
20'
". ......
'"
.:. ....
""
70' 50'
... ... ..... ... .. ...
W
/fO/IfH 8tH 5F11££T
75'
..:. " ..
90' 70'
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING ~XAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of:
Alliance of South End (ASE) and
Brad Nicholson re:
The Director's Administrative
Site Plan Approval
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LUA -06-071,SA-A
City of Renton's Joinder in Applicant's
Motion to Dismiss ASE and Nicholson
Appeals from the Landing Administrative
Site Plan Approval for Lack of Standing.
l. RELIEF REQUESTED
COMES NOW the City of Renton and hereby fully joins in and incorporates by
reference, as though fully set forth herein, the Applicant's Motion to Dismiss ASE and
Nicholson Appeals from the Landing Administrative Site Plan Approval for Lack of
Standing .. In addition to adopting by reference the factual and legal analysis and
arguments of Applicant's above-referenced motion, the City of Renton joins the
Applicant in requesting that the Hcaring Examiner dismiss the aforesaid appeals.
II. CONCLUSION
The Hearing Examiner should dismiss the appeals of ASE and Nicholson from the
Landing Administrative Site Plan Approval for Lack of Standing.
Dated this 12'h day of January, 2007.
WARREN BARBER & FONTES, P.S.
~e~~ . ark Barber, WS o. 8379
Zanetta L. Fontes, WSBA No. 9604
Lawrence J. Warren, WSBA No. 5853
Attorneys for City of Renton
OR! Gi l\lAL WARREN BARBER er FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STREET • POST OFFICE BOX 62.6
RENTON, WASHINGTON 98057
PHONE (,,25) l55..&>711 • FAX ("H) 25S.H74
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
II
5
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
6 In the Matter of the Appeal of
7
Alliance for South End (ASE) and
8 Brad Nicholson re:
9 The Director's Administrative
10 Interpretation/Policy Decision
1' ____________________________ ~
12
DECLARATION OF STACY TUCKER
13 STACY TUCKER, hereby declares under penalty of perjury pursuant to the laws
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of the State of Washington that the following is true and correct:
15
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1. I am a citizen of the United States of America, a resident of the State of
17 Washington, over the age of eighteen (18) years, not a party to the above-entitled
18 action, competent to testify to the facts set forth herein, and I make this declaration
19 based upon my personal knowledge.
20 2. I am currently employed by the City of Renton in the Development Services
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Division. My job title is Secretary I. I have held this position since April, 2004.
22
3. Attached hereto is a true and correct copy of the Affidavit of Service by
23
211 Mailing that I signed on July 11, 2006, stating that I sent to the listed parties of record,
25 in a sealed envelope via the mails of the United States, a copy of the Preliminary
26 Declaration of Stacy Tucker -1
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WARREN BARBER f'y FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STREET • POST OFFICE BOX 616
flE:>iTON, WASHINGTON 9&157
PHONE (f2S) 2i'i_8078 • FAX ('I2S) Z$S,SiH
.. .
1 Report to the Hearing Examiner in the project known as Lowe's of Renton, Project No.
2
LUA-05-161,SA-H, SA-M, ECF,
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EXECUTED at Renton, Washington, this 11th day of January, 2007.
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cker, Declarant
WARREN BARBER EJ FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOr-oO STREET • POST OFFICE BOX 626
RENTO:-O, Wi\SIiINGTOl'J 9&lS7
PHONE ("H) H'H\67f'1 • fAX (·US) 255-.... 14
'-'
CITY OF RENTON
CURRENT PLANNING DJVJSION
AFFIDAVIT OF SERVICE BY MAILING
On the 11th day of July, 2006, I deposited in the mails of the United States, a sealed envelope
containing Preliminary Report to the Hearing Examiner documents. This information was sent to:
Name
Mike Neer, PACLAND
Jim Manion, Lowe's HIW
Dash -80, L.P.
(Signature of Sender)~'Cf -At~
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
Contact
Applicant
Owner
I certify that I know or have satisfactory evidence that Stacy Tucker
Representing
signed this instrument and acknowledged it to be his/hedtheir free and voluntary act for the uses and
purposes mentioned in the instrument.
Dated: 7-ll-6{e
Notary (Print): 1f\~10",.. L V h n
My appointment expires: ~ -, q -\ 0
Lowe's of Renton
LUA05-161, SA-H, SA-M, ECF
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CITY OF RENTON
JAN 12 2007
RECEIVED
CITY CLERK'S OFFICE
7 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
8
9 In the Matter of the Appeal of
10
Alliance for South End (ASE) and
11 Brad Nicholson re:
12 The Director's Administrative
1 3 Interpretation/Policy Decision
CITY OF RENTON'S JOINDER
IN APPLICANT'S MOTION TO
DISMISS ASE AND NICHOLSON
APPEALS OF THE DIRECTOR'S
INTERPRETATION/POLICY
DECISION FOR LACK OF
JURISDICTION
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I. RELIEF REQUESTED
COMES NOW the City of Renton and hereby fully joins in and incorporates
18 by reference, as though fully set forth herein, the Applicant's Motion to Dismiss
19 ASE and Nicholson Appeals of the Director's Interpretation/Policy Decision for
20
Lack of Jurisdiction. In addition to adopting by reference the factual and legal
21
analysis and arguments of Applicant's above-referenced motion, the City of
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23 Renton joins the Applicant in requesting that the Hearing Examiner dismiss the
211 aforesaid appeals.
25 /I
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City of Renton's Joinder in Applicant's Motion
27 to Dismiss ASE and Nicholson Appeals of
the Directors Interpretation/Policy Decision
28 for Lack of Jurisdiction - 1
WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
100 soUTH SECOND STREET • POST OFFlCE 80X 1'12ft
RENTON, WASHINGTON 98057
PHONE (<12'>1 25;.11678 • fAX I<loZ5) 2.;5-,..74
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II. CONCLUSION
The Hearing Examiner should dismiss the appeals of ASE and Nicholson
of the Director's Interpretation/Policy Decision for lack of jurisdiction.
DATED this 12th day of January, 2007.
City of Renton's Joinder in Applicant's Motion
to Dismiss ASE and Nicholson Appeals of
the Director's Interpretation/Policy Decision
for Lack of Jurisdiction - 2
WARREN BARBER & FONTES, P.S.
7t&uL~
Mark Barber, WSBA No. 8379
Zanetta L. Fontes, WSBA No. 9604
Lawrence J. Warren, WSBA No. 5853
Attorneys for City of Renton
WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH ~ECOND STREET • POST omCE BOX 616
RENTON, WASHINGTON 980$7
['HONE 14l~) 2'>5·8678 • FAX (4lill5S-SiH
,
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CITY OF RENTON
JAN 1 2 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's InterpretationIPolicy Decision
CITY OF RENTON'S MOTION TO
DISMISS APPEAL OF BRAD
NICHOLSON OF THE DIRECTOR'S
INTERPRETATIONIPOLICY
DECISION FOR LACK OF
JURISDICTION DUE TO
NICHOLSON'S FAILURE TO
PERFECT HIS APPEAL
L RELIEF REQUESTED
13 COMES NOW the city of Renton and asks the Hearing Examiner to dismiss Brad
14 Nicholson's Appeal of the Director's InterpretationIPolicy Decision for lack of
15 jurisdiction, as Mr. Nicholson has failed to perfect his appeal.
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II. FACTS
On July 17, 2006, the City of Renton Development Services Division issued an
"InterpretationIPolicy Decision" (hereinafter the "Interpretation Decision") related to the
setback standards in the Urban Center-North I (UC-Nl) zone. Approximately six weeks
later, on August 31, 2006, attorney Peter Buck filed an appeal document entitled ''Notice
of Appeal of Administrative InterpretationIPolicy Decision." The signature block on this
I Appellant's Notice of Appeal of the Director's Interpretation/Policy Decision did not have an WA
number. Therefore, the city of Renton bas not identified an LUA number on this pleading.
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF DIRECTOR'S
INTERPRETATIONIPOLICY DECISION FOR
LACK OF JURISDICTION 1
OR!GINAL
WARREN BARBER & FONTES, p.s.
A TTORNE'I'S AT LAW
100 soum SI!COND STRI!ET -p.o. BOX G}b
RENTOf'tl.. WA 911057
PHONE: (425) 2$.8611. FAX: (42!) 2lIM474
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document indicates it is filed by "BUCK & GORDON LLP By: Peter L. Buck, WSBA
#05060, Attorneys jor Alliance jor the South End." (Emphasis added.)
The Notice of Appeal purports to include Brad Nicholson as an Appellant, as an
individual separate from ASE. Also, the Notice of Appeal alleges that Nicholson has
standing. That notwithstanding, the document does not say that the BUCK & GORDON,
LLP firm represents Mr. Nicholson, as an individual. Further, in the Conclusion, at page
9 of the Notice of Appeal, the request for relief is made only by ASE.
Not only is there no appeal document signed on Mr. Nicholson's behalf; neither
was there any $75 fee paid by him or on his behalf. On August 31, 2006, the City Clerk's
Office received a check from the law office of Buck & Gordon, LLP in the amount of
$75 and wrote a receipt reflecting the payment of $75 for the appeal filed by ASE relating
to the InterpretationIPolicy Decision. There was no check submitted to the clerk's office
on behalf of Brad Nicholson.
m. Evidence Relied Upon
A. Declaration of Bonnie Walton and exhibits thereto:
1. Receipt of$75 from Buck & Gordon re: InterpretationIPolicy
Decision;
2. Receipt of$75 from Misty Cove;
3. Receipt of$75 from Steve Jansen;
B. Notice of Appeal of Administrative InterpretationIPolicy Decision
c. Notice of Appeal; Appeal of DNSM (by Misty Cove Association)
D. Appeal letter of Steve Jansen
E. Stipulation and Order (relating to Target)
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF DIRECTOR'S
lNTERPRETATIONIPOLICY DECISION FOR
LACK OF JURISDICTION 2
WARREN BARBER &< FON1W, P.S.
ATIOKNFiS AT LAW
100 sourn SIlCOND SI1U!eT -P.o. BOX 626
RENTON,. W A 9ll6'1
PHONE: (42S) 255-B67II FAX: (425) 25S-.5t74
,
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IV. Argumenr
As the salient facts of Nicholson ' s Appeal of Administrative InterpretationIPolicy
Decision are identical to those facts of Nicholson's Appeal of Director's Administrative
Site Plan Approval, Renton will adopt by reference for purposes of this motion the
arguments and authorities cited in "City of Renton's Motion to Dismiss Appeal of Brad
Nicholson of the Director's Administrative Site Plan Approval for Lack of Jurisdiction
Due to Nicholson's Failure to Perfect His Appeal." Said Motion to Dismiss is submitted
contemporaneously herewith.
V. Conclusion
Nicholson's purported appeal of the Director's Administrative Site Plan Approval
should be dismissed as Mr. Nicholson failed to perfect his appeal. 3
DATED this /:2 ffi: day of January, 2007.
WARREN BARBER & FONTES, PS
2 The issue of ASE's standing to appeal, based on Brad Nicholson's membersbip in ASE is being addressed
by separate briefby the Applicant The city joins in the Applicant's motion to dismiss ASE for lack of
Standing based on Bmd Nicholson's Jack of authority to direct the appeal by ASE. The city incorporates
by this reference, as if fully set forth herein, the arguments made in Applicant's Motion to Dismiss ASE
and Nicholson Appeals of the Director's Interpretation/Policy Decision for Lack of Jurisdiction.
3 Renton does not concede that Nicholson has an appeal. Renton has made reference to "Nicholson's
Appeal" in an effort to distinguish it from ASE' s Appeal.
RENTON'S MOTION TO DISMISS
NICHOLSON'S APPEAL OF DIRECTOR'S
INTERPRETATIONIPOUCY DECISION FOR
LACK OF JURISDICTION 3
WARREN BARBER'" FQNTFS, P.5.
ATIORNEYS AT LAW
100 SOUTH 5IlCOND 5I'REET • P.O. BOX 626
RENTON, W A !11057
PHONE; (425) 25S-36'18 FAX, (425) 255.5474
EXHIBIT A
DECLARATION OF BONNIE WALTON
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's InterpretationIPolicy Decision
NO.
DECLARATION OF BONNIE
WALTON IN SUPPORT OF RENTON'S
MOTION TO DISMISS BRAD
NICHOLSON'S APPEAL OF THE
DIRECTOR'S
INTERPRETATIONIPOLICY
DECISION FOR FAILURE TO
PERFECT HIS APPEAL
I, Bonnie l Walton, declare under penalty of pe!jury under the laws of the State of
Washington that the following is true and correct to the best of my knowledge, and that I
have fusi-hand knowledge of the facts presented herein:
1. I am over 18 years of age and am competent to testify in this matter
2. I am the City Clerk for the city of Renton.
3. I have held this position since January, 2002.
4. My office is responsible for receiving notices relating to land use appeals
and receiving the fees paid for said appeals.
S. My office did not receive from Mr. Nicholson, or anyone on his behalf, a
written notice of appeal relating to the Director's InterpretationIPolicy Decision as
required by RMC 4-8-1 IOC(3).
DECLARATION OF BONNIE WALTON
IN SUPPORT OF RENTON'S MOTION
TO DISMISS BRAD NICHOLSON
(InterpretationIPolicy Decision) - 1
WARREN BARBER & FONlfS, p.s.
PD. BOX 626, R.8'ff'0N, WI!. 98057
JOO SO.SECOND 5lRfET
PH (425) 255-8678 FAX(425) 255-5474
1 6. Neither did my office receive $75 from Mr. Nicholson, or anyone on his
2 behalf, for the appeal fee.
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7. My office did receive from Mr. Buck's law firm a Notice of Appeal of the
Director's InterpretationIPolicy Decision as well as a check in the amount 0[$75. The
receipt indicates the appeal is by ASE, not Brad Nicholson. Attached hereto as Exhibit
#1 is a copy of the receipt for the $75, indicating the fee was paid by ASE.
8. Earlier this year, Misty Cove appealed the SEPA decision related to the
proposal made by Football Northwest, Inc.
9. One of the residents of Misty Cove, Steve Jansen, appealed as well.
10. In the Football Northwest, Inc. proposal, there were two separate appeal
notices filed with my office and two separate appeal fees were paid to the city.
II. A Notice of Appeal was received from Misty Cove accompanied by a $75
fee. Attached hereto as Exhibit #2 is a copy of the receipt for the $75, indicating the fee
paid by Misty Cove.
12. Similarly, a Notice of Appeal was received from Steve Jansen,
accompanied by a $75 fee. Attached hereto as Exhibit #3 is a copy of the receipt for the
$75, indicating the fee paid by Steve Jansen.
+"
DATEDthis /J. dayofJanuary,2007.
By:
DECLARATION OF BONNIE WALTON
IN SUPPORT OF RENTON'S MOTION
TO DISMISS BRAD NICHOLSON
(InterpretationIPolicy Decision) -2
Bonnie I. Walton
WARREN IlARllER & roNIES. p.s.
PD. BOX 626, R.ENTON, WA 98057
100 SO . .5ECO'oID Slllf£T
PH. (425) 255-8678 FAX(425) 255-5474
EXHIBIT #1 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
BUCK & GORDON
FOR THE APPEAL OF THE
DIRECTOR'S INTERPRET A TIONIPOLICY DECISION
CITY OF RENTON
City Clerk Division
1055 Sonth Grady Way
Renton, W A 98055
425-430-6510
D Cash ~heck No. 31 7 YO
Description:
Funds Received From:
D Copy Fee
~AppealFee
Name 7$uc k 1 I&ic>-t , i, ~ ,
Address
City/Zip
"
<;i'C' ....... c·
C0 , *_ .
Receipt N, 0638
Date __ '6-+I_s"-!-1 1_24:/-'----"'&'----" _ I I
D Notary Service D _________ _
IAmount $ 7 ' Soc I
EXHIBIT #2 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
MISTY COVE ASSN. OF HOMEOWNERS
FOR THE APPEAL OF THE
MITIGATED DNS FOR FOOTBALL NORTHWEST
CITY OF RENTON
City Clerk Division
1055 Sonth Grady Way
Renton, W A 98055
425·430-6510
CERTIFICATE
I, the undersigned City Clerk of the
City of Renton, Washington, certify
that this is a true and correct copy of
f{~ce;pf No. %83 . Subscribed
and sealed this 17 day of Nov. , 200b
&;n.~ft,yirtt#4~, 0,., " ' .... '"
Receipt N_ 0683
Date ---'--,f II-~--.t h,-Z=-D...,:O:....-& __
"
o Cash 0 Copy Fee 0 Notary Service ~heck No. ~ C 50 Q1\ppeal Fee 0 ________ _
Description: A PI'" I f~ (itt? ?!f:; Ejq~N/ '''r': e-t; -
ivA-pr... -07 :3' j ~'CF/ S4~ 1!1, 5M
Funds Received From:
Name 50c 1 U S" lc" J 61 (v) /Vt lC
Address J~ •. p tll1 h·~f 562 t/(lvC
City/Zip &C I tJriftJi'"'fl Sf;. )!~, ¥ 750
S('{! tilt'. Lv'A itt cr. I {: I
, {
I Amount $ 1~ 00
City
EXJUBIT #3 TO
DECLARATION OF BONNIE WALTON
RECEIPT FOR APPEAL FEE PAID BY
STEVE JANSEN
FOR THE APPEAL OF THE
MITIGATED DNS FOR FOOTBALL NORTHWEST
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, W A 98055
425-430-6510
o Ca§h
lQ-d"ieck NO"_..L7L,3-"!f.e"'-'1-1--
.0 <;ppyFee
t1"AppeaJ Fee
CERTIFICATE
I, the undersigned City Clerk of the
City of Renton, Washington, certify
that this i~ a true a!)d c9rrect copy of
li'utll'1tll", 'tljKk. Subscribed
and seared this.LZ..day. of N4V, ,200{' &rwu..t.." Ltlaf4c-'
, tit)' Clerk ,<, ,. ., ,
Receipt N. 0682
o Notary Service 0 ________________ _
~ f ;
Funds Received From:
Name 51 ( vr /I tYl, 1.,( Sf 11
Amount $ 7 -s: () ()
Address f. /), ~ Or 2 if:;' (/
City/Zip K/ t tlrol d f iliA '1 f 08.,5
I
!
EXHIBITB
Notice of Appeal of Director's InterpretationIPolicy Decision
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative
IntetpretationIPolicy Decision
)
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NOTICE OF APPEAL OF
ADMINISTRATIVE
INTERPRETATIONIPOLICY
DECISION
Additional Party: Harvest Partners
------------)
I. INTRODUCTION
The AlIiance for South End (ASE) and Brad Nicholson hereby file this Notice of
Appeal of the IntetpretationIPolicy Decision issued by the City's Development Services
Director on July 17, 2006 ("Director's decision," Exhibit A). The Director's decision was
based on substantial errors in law, including violations of RMC 4-1-080, RMC 4-8-070,
RMC 4-9-025, RCW 35A.63.100, and RCW 36.70A.035, as set forth in further detail
below.
/
/
NOTICE OF APPEAL OF ADMINISTRATIVE
INTERPRETATIONIPOLICYDECISION -1
Y:IWP\ASE\7·17INTERPRETATION-POLICY DECISION APPEALINOTICEOF
INTERPRETATlON·POLICY DECISION APPEAL083106.DOC
Buck~Gordon LLP
2025 First Avenue, Suite 500
Seatrle, WA 98121
12(6) 382-9540
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'I
II. THIRD PARTY
Harvest Partners, the applicant for The Landing, has an interest in this appeal.
Accordingly, Harvest Partners is named as a party to obviate the need for intervention.
III. TIMELINESS -
The Director's decision appears to have been issued on July 17, 2006. Appellants
ASE and Nicholson did not have actual notice of the decision until August 21, 2006, when
they received a copy of that decision attached to the Director's Administrative Site Plan
Approval for The Landing, issued under file number LUA06-071, SA-A, dated August 17,
2006.
Appellant ASE is a party of record for The Landing. ASE has been reviewing the
files for that project on a regular basis, including reviews on Ju1y 18, 2006, August I,
2006, and August 11,2006. Although the Director's Administrative Site Plan Approval
for The Landing purports to rely on the Director's InterpretationIPolicy Decision, the City
did not notify ASE of the Director's InterpretationIPolicy Decision. The Director's
InterpretationIPolicy Decision was not included in the files for The Landing prior to its
inclusion as Exhibit 15 to the Site Plan Approval.
To our knowledge, the City did not provide notice of any kind that this decision
was made. Constitutional due process requires "notice reasonably calculated under all the
circumstances to apprise affected parties of the pending action and afford them an
opportunity to present their objections." Barrie v. Kitsap County, 84 Wn.2d 579, 585, 527
NOTICE OF APPEAL OF ADMINISTRATIVE
INTERPRETATIONIPOLICY DECISION· 2
Y;IWPIASEl7·17INTERPRETATlON·POLlCY DECISION APPEALINOTICE OF
INTERPRETATlON·POLlCY DECISION APPEAL083106.DOC
Buck0Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382·9S4O
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P.2d 1377 (1975). Thus, any appeal period for the Director's decision would run from
August 21, 2006, the date of actual notice.
The Director's decision references a 14-day appeal period for appeals to the
Hearing Examiner, citing RMC 4-8-110. Presumably, this is a reference to RMC 4-8-
11 0.E(b), "Appeals to Examiner of Administrative Determinations Other Than
Environmental." By filing this appeal within 14 days of receipt of actual notice of the
Director's decision, ASE and Nicholson have complied with the 14-day appeal period
under RMC 4-8-110.E(b). I
IV. STANDING
A, ASE Standing
Appellant ASE is a Washington nonprofit corporation established to advance its
members' interests in Renton's environment, land use planning, and governmental and
fiscal integrity. ASE's membership is made up of Renton citizens who are directly
impacted by The Landing project in their daily activities.
ASE has standing to file this appeal, under the standards in RMC 4-8-110.E(3)(b)
because its members are aggrieved by the Director's decision for reasons that include the
following:
• ASE has one or more members who are residents of Renton with an active interest
22 in the integrity of City of Renton's land use and environmental review processes,
23 who have actively participated in past land use decisions associated with
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I Although appellants ASE and Nicholson have complied with the 14-dayappeal period under RMC 4-8-
110.E(b), they reserve the right to assert that such an appeal period does not apply to the Director's decision.
NOTICE OF APPEAL OF ADMINISTRATIVE Bucke. Gordon LLP
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redevelopment of The Landing property, who seek to ensure that the City abides
by its policies and procedures and conducts all project reviews in an open, proper
and ethical manner, and who are negatively impacted by the improper processing
in connection with this project and the Urban Center-North 1 (UC-Nl) zone. As a -
result of the Director's decision, these members have been aggrieved by their
inability to comment, participate, and voice objections to the City Hearing
Examiner and/or the City Council on what is, in effect, an amendment of the
City's development regulations and the integrity of setbacks in the UC-Nl zone.
• ASE has one or more members who wish to have their community planned and
development consistent with the provisions of the Renton Comprehensive Plan and
development regulations, including the UC-Nl regulations. ASE's members are
aggrieved by the City's denial of their rights to such a community due to the fact
that this decision attempts to administratively eliminate the protection of
maximum setbacks designed to implement an urban village concept.
B. Nicholson Standing
Appellant Brad Nicholson is a lifelong resident of the City of Renton and member
of ASE who lives near The Landing site, owns property near the site, and commutes
through the site. Nicholson also has a longstanding inter:est in the land use decisions of the
City of Renton and has participated extensively in public hearings and proceedings
regarding The Landing site.
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Nicholson has standing to file this appeal, under the standards in RMC 4-8-
11O.E(3)(b), because he is aggrieved by the Director's decision for reasons that include
the following:
A.
• As a result of the Director's decision, Nicholson is aggrieved by his inability to -
comment, participate, and voice objections to the City Hearing Examiner and/or
the City Council on what is, in effect, an amendment of the City's development
regulations and the integrity 0 f setbacks in the U C-N 1 zone.
• Nicholson wishes to have his community planned and development consistent with
the provisions of the Renton Comprehensive Plan and development regulations,
including the UC-Nl regulations. He is aggrieved by the City's denial of his rights
to such a community due to the fact that this decision attempts to administratively
eliminate the protection of maximum setbacks desigued to implement an urban
village concept. 2
V. GROUNDS FOR APPEAL
The Director's Decision Violated RMC 4-1-080.
RMC 4-1-080.A(I) authorizes the Director "to make interpretations regarding the
implementation of unclear or contradictory regulations contained in this Title." The
Director's decision violated this provision by purporting to interpret regulations that are
neither unclear nor contradictory.
RMC 4-1-080.A(I) also provides that U[a]ny interpretation of the Renton Title IV
Development Regulations shall be made in accordance with the intent or purpose
2 In addition, as a member of ASE, Nicholson is injured in the manner set forth in section lILA above.
NOTICE OF APPEAL OF ADMINISTRATIVE Buck0Gordon LLP
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statement of the specific regulation and the Comprehensive Plan." The Landing site is
within the Urban Center North Comprehensive Plan land use designation. The Director's
decision violated RMC 4-1-080.A(I) by issuing an interpretation that conflicts with many
of the Urban Center North policies found in the Comprehensive Plan. -B. The Director's Decision Violated RMC 4-8-070 and RMC 4-9-025.
RMC 4-8-070.1 provides that "[t]he City Council shall review and act on the
following: ... 6. Development and zoning regulations text amendment." The Director's
decision violated this provision by attempting to amend the development regulations in
RMC 4-2-120E. The Director's decision goes beyond mere interpretation of RMC 4-2-
120E and proposes substantive changes to the Code by adding the setback modification
criteria that appear in RMC 4-2-120C.15, which apply only to the Commercial
Neighborhood (CN) and Center Village (CV) zones, to the provisions ofRMC 4-2-120E,
which apply to the UC-Nl zone. Only the Renton City Council can amend the City's
development regulations.
An agency may not legislate under the guise of its rule-making power. Juanita Bay
Valley Community Ass'n v. City of Kirkland, 9 Wn.App. 59, 79, 510 P.2d 1140 (1973).
The Director's decision reveals that this is precisely what he was attempting to do:
This development standard to allow for the modification of
the maximum setback requirement in the UC-Nl zone
subject to the above listed criteria should be included in the
annual docket procedure for addition into Title N.
Director's decision, p. 2 (emphasis added).
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NOTICE OF APPEAL OF ADMINISTRATIVE
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•
This portion of the Director's decision suggests the proper procedure for effecting
the change that the Director has purported to make: enactment of an ordinance by the City
Council to amend RMC 4-2-120E. That procedure is set forth in RMC 4-9-025, which
provides as follows:
The text revision process is the means either to suggest a
change or to identify a deficiency, or both, in the
development regulations. For the purposes of this section,
"deficiency" refers to the absence of required or potentially
desirable contents of the development regulations.
Title 4 development regulation amendment proposals will
be processed in accordance with this section, unless
specifically exempted below. Any interested party,
including applicants, citizens, and government agencies,
may submit items to the Title 4 development regulation
amendment process.
RMC 4-9-025.A-B (emphasis added). The text revision process includes requirements for
public notice and a comment period. RMC 4-9-025.G. The Director's decision failed to
follow any of the City's text revision procedures and therefore violated RMC 4-9-025.
C. The Director's Decision Violated RCW 3SA.63.100.
RCW 35A.63.100(I) provides that "[nJo zoning ordinance, or amendment thereto,
shall be enacted by the legislative body without at least one public hearing, notice of
which shall be given as set forth in RCW 35A.63.070," which, in turn, provides as
follows:
Notice of the time, place, and purpose of such public
hearing shall be given as provided by ordinance and
including at least one publication in a newspaper of general
circulation delivered in the code city and in the official
NOTICE OF APPEAL OF ADMINISTRATIVE
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gazette, if any, of the code city, at least ten days prior to the
date of the hearing.
RCW 35A.63.070. To onr knowledge, the City did not provide notice or hold a public
hearing before the Director attempted to amend RMC 4-2-l20E. The Director's decision
therefore violated the provisions ofRCW 35A.63.100(1) by attempting to administratively
amend the Code without the public notice and participation required for zoning text
amendments.
The Director's decision characterized ''the requirement for a maximum setback in
the DC-Nl zone without the provision for allowing modifications to this setback
requirement through the site plan review process" as "an error in the development
regulations." Director's decision, p. 2. While this assertion is not supported by the
provisions of the Renton Code or the rules of statutory construction,l notice is required
under RCW 35A.63.100 even for such corrections. "[A] correction is included within the
meaning of amendment and therefore, requires the same notice as that required for a
rezone or an amendment." Responsible Urban Growth Group v. City of Kent, 123 Wn.2d
376,387,868 P.2d 861 (1994).
19 D.
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The Director's Decision Violated RCW 36.70A.03S.
RCW 36.70A.035(I) provides as follows:
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The public participation requirements of this chapter shall
include notice procedures that are reasonably calculated to
provide notice to property owners and other affected and
interested individuals, tribes, government agencies,
businesses, school districts, and organizations of proposed
3 Courts have shown "a long history of restraint in compensating for legislative omissions." State v. Taylor,
97 Wn.2d 724, 728, 649 P.2d 633 (1982).
NOTICE OF APPEAL OF ADMINISTRATIVE
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Scottie, WA 98121
1206) 382·9540
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amendments to comprehensive plans and development
regulation.
Because the City provided no such notice, the Director's decision violated the provisions
ofRCW 36.70A.035(1).
5 E.
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The Director's Decision Was Ultra Vires.
Because the Director's decision was made without legal authorization and violated
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state law, it was ultra vires and void as a matter of law. "Acts done without legal
authorization or in direct violation of existing statutes are ultra vires. " Miller v. City of
Bainbridge Island, III Wn.App. 152, 165,43 P.3d 1250 (2002).
It is well settled that ultra vires acts are null and void. See, e.g., McGuire v. State,
58 Wn.App. 195, 199, 791 P.2d 929 (1990), cert. denied, 499 U.S. 906 (1991); Port
Townsend School Dis!. No. 50 v. Brouillet, 21 Wn.App. 646, 653, 587 P.2d 555 (1978)
(citations omitted).
VI. CONCLUSION
For the reasons stated above,4 ASE respectfully requests that the Hearing
Examiner remand the Director's decision for further proceedings consistent with the
provisions of the Renton Municipal Code and state law.
/
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4 Because the Director's decision may require elucidation at a prehearing conference or at oral argument,
ASE and Nicholson reserve the right to expand and further define this appeal accordingly.
NOTICE OF APPEAL OF ADMlNISTRATIVE Buck~ Gordon LLP
INTERPRETATIONIPOLICY DECISION - 9 2025 FimA,enoe. So i'e 500
Y:IWPIASEl7-I7INTERPREfATlON-POLICY DECISION APPEALINOTICE OF Seattle. WA 98121
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By: Pe7tcr~L-.MB~~~~~~~~~--~
Attorneys
NOTICE OF APPEAL OF ADMINISTRATNE
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Buck0 Gordon LLP
2025 First Avenue, Suite 500
Scottie, WA 98121
(206) 382·9540
EXIDBITC
Notice of Appeal of Appeal: Appeal of DNSM (by Misty Cove Association)
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CITY Of RENTON
.'
NOV 062006
I
RECEIVED
CITY CLERK'S OFFICE
IkJlver~'/-f()lllk JI'
</: 2.., f'#('
BEFORE THE HEARING EXAMINER
FOR THE CITY OF RENTON
MISTY COVE ASSOCIATION OF
APARTMENT OWNERS,
Appellant,
v.
CITY OF RENTON, and FOOTBALL
NORTHWEST,
Respondents.
I.
NO. LUA06-073
NOTICE OF APPEAL;
APPEAL OF
DETERMINATION OF NON-
SIGNIFICANCE -
MITIGATED WITH MITIGATION
MEASURES (Oct. 16,2006)
INTRODUCTION
Comes now the Misty Cove Association of Apartment Owners ("Misty Cove") and
for its appeal of the above-captioned Determination of Non-Significance Mitigated
("DNSM") pleads as follows.
This appeal is filed pursuant to the Renton Municipal Code ("RMC"), chapter 4-08-
110, the State Environmental Policy Act, RCW ch. 43.21C ("SEPA"), and under the
procedures set forth on Page 15 of the Report & Decision of the City's Environmental
Review Committee ("ERC") (Oct. 16, 2006). The City Hearing Examiner has jurisdiction to
review an appeal of the ERC's Determination of Non-Significance for this proposal. RMC
Section 4-B-070(H)(4); RMC Sec. 4-8-070(T).
MISTY COVE ASSOCIATION
APPEAL OF DNSM
Socius Law Group, PLLC
A T TOR N E Y S
-1-Two Union Square" 601 Union Street, Suite 4950
1556) I Seattle, Washington 98101.3951 " 1 /I. J,If, Telephone 206.83B.9100 t.N'/y !VN/ft/
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L I 1/,,-'lYncy Facslmile206.B3B.9101
IVeI ( f/Jo, tiS/Dc v' _ Sv'c. S. VI ({ef-eY'"
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The Misty Cove Association is an unincorporated condominium association of over
50 residents I , residing on Lake Washington directly adjacent and to the north of the proposed
Seahawks Headquarters and Training Facility. The Misty Cove Condominiums consist of
the condominium building, parking, grounds, and marina located at 5021 Ripley Lane North,
Renton, Washington.
The proposed Seahawks facility involves a relocation of an existing facility from
Kirkland. By moving their facility to Renton, the Seahawks hope to quadruple the size of
their current Kirkland facility.2 The effect oflocating this large commercial enterprise on
this vacant lakeshore site is immediate and certain change in the lives of Misty Cove
residents.
In their recent internet promotional materials for the new facility, the Seahawks
management admit the new 120-foot tall facility will be "massive," located within 50 feet of
Lake Washington.) In the same promotional video, Renton's Mayor promises to "fast-track"
every permit application filed by the Seahawks, in support of the new facility.
While it is understandable City leadership would wish to attract an economic engine
with a "massive" commercial facility within the City limits by fast-tracking the permit and
SEP A review, the City's environmental determination must focus on impacts to the shores of
Lake Washington, a shoreline of statewide significance. When issuing the DNSM, the City's
SEP A responsible official failed to consider public comments and failed to ensure
consistency with the City's adopted Shoreline Management Master Program 4 and other
1 T~re are 50 residential units located at Misty Cove, some of which are occupied by mUltiple residents.
2rnformation derived from the Seahawk's promotional website at:
www.seahawks.comlNewslNews.aspx%3Fid%3DI 0218+Seahawks+ Training+facility+Kirldand,+W A&hl=en
&gl=us&ct=c1nk&cd= II
'rd., "Video Report" promoting new facility, Seahawks President Tim Ruskel!.
• RMC Sec. 4-9-070(O)(2Xc).
MISTY COVE ASSOCIATION
APPEAL OF DNSM
ISS63
-2-
Socius law Group, PLLC
A.TTORNEYS
Two Union Square. 601 Union Street, Suite 4950
Seattle, Washington 98101.3951
Tetephooe 206.838.9100
FaCSimile 206.838.9101
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pennit regulations. Those regulations protect the interests of Misty Cove residents and the
interests of all state residents who enjoy Lake Washington's waters and shores.
Unfortunately, neither the applicant nor City staff appeared to incorporate suggestions
or comments from neighborhood meetings or either of Misty Cove's letters to the City
providing detailed concerns. The first letter was sent in July 2006, over three months ago.
The applicant's resubmittal in September 2006 did not adequately address those concerns and
did not propose any new voluntary permit conditions to mitigate impacts described by Misty
Cove.
Upon appellate review, a central issue will be whether this massive facility may
impede, alter or impair the views of existing residents throughout the area, for a commercial
use that is neither water-dependent nor water-related. Misty Cove residents believe
additional design work is needed to mitigate the massive scale and height of the proposal in
order to make the facility consistent with applicable City shoreline regulations. Additional
study is needed to determine impacts and appropriate mitigation on a host of issues not
addressed by the DNSM conditions, not the least of which is the impact of stormwater runoff
on endangered species habitat along the shoreline. Misty Cove therefore requests the
Hearing Examiner remand the DNSM for additional study and SEPA conditions mitigating
probable significant adverse environmental impacts identified in this appeal.
II. SUBSTANTIAL ERRORS IN FACT OR LAW
As required under the City'S appeal procedures, Misty Cove offers the following list
of substantial errors in fact or law which exist in the record of the proceedings. RMC Sec. 4-
8-110(C)(3).
A. List of Errors. In addition to those reasons listed in the attached letters, the
DNSM is in error because:
MISTY COVE ASSOCIATION
APPEAL OF DNSM
tSS63
-3-
Socius Law Group, PllC
ATTORNEYS
Two Union Square. 601 Union Street. Suite 4950
Seattle, Washington 98101.3951
Tefephone 206.838.9100
Facsimile 206.838.9101
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• This proposal does not meet the City's adopted shoreline standards for the
location of commercial development along Lake Washington:
New commercial developments on Lake Washington which are neither
water-dependent, nor water-related, nor water-enjoyment, nor which
do not provide significant public access to and along the water's edge
will not be permitted upon the shoreline.
RMC Sec. 4-3-090(L)(5)(ii).
• The facility is not located in an area "where current commercial uses exist," as
required for Commercial Use within the Urban Shoreline Environment. RMC
4-3-090(J)(4); 4-3-090(L)(5).
• The l20-foot high structure is not of the same scale as other commercial
development contemplated for this commercial zone.
• The scale and design of the facility will impede or impair the views of
adjacent residents; the SEPA DNSM does not include any permit conditions
concerning design or scale capable of providing the mitigation required by the
City's shoreline regulations.
• The DNSM is silent on any mitigation conditions addressing obstructed and
impeded views, traffic gridlock, degradation of fish and wildlife habitat,
parking impacts, loss of aesthetics, increased noise, and new sources of light
and glare.
As part of this appeal, Misty Cove incorporates by reference as though fully set forth
herein, two letters submitted by Misty Cove during the public comment period, providing
specifiC allegations offact and law demonstrating probable significant adverse environmental
impacts resulting from the project's noncompliance with SEPA, RCW ch. 43.21C and its
implementing regulations, WAC ch. 197-11, the Shoreline Management Act, RCW ch.
MISTY COVE ASSOCIATION
APPEAL OF DNSM
15563
-4-
Socius Law Group, PlLC
ATTORNEYS
Two Union Square. 601 Union Street, Suite 4950
Seattle, Washington 98101,3951
Telephone 206.838.9100
Fac,c;.lmile 206.838.9101
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90.58, and applicable City regulations and policies. Additional errors are described as
follows.
B. Failure to Impose Specific SEPA Conditions Necessary for Consistency with
Shoreline Policies and Regulations.
As discussed above, the DNSM does not contain specific SEP A mitigation conditions
necessary to demonstrate consistency with the City's adopted standards and policies for
commercial uses within the shorelines. The applicant did not meet its burden of
demonstrating consistency "with the criteria which must be met before a [shoreline 1 permit is
granted." RMC Sec. 4-9-190(F)( 4). Neither the shoreline permit nor other permits may be
granted under City code, absent a showing of consistency with the City's adopted shoreline
program and regulations. RMC Sec. 4-9-l90(E). If the proposal is inconsistent with the
City's adopted SEPA policies governing the use of shorelines and mitigation of impacts, it
follows that the proposal does not adequately mitigate project impacts to the extent required
by SEP A and the City's environmental regulations.
The criteria for issuance of a shoreline permit are relevant to the Examiner's review
of the ERC's decision. The City's shoreline policies and regulations serve as the basis for
substantive conditioning of the project to ensure adequate SEPA mitigation, because they are
adopted SEPA policies. RMC Sec. 4-9-070(O)(2)(c). Under City code, specific SEPA
mitigation measures become conditions of the underlying permit approval decision, once
issued. RMC Sec. 4-9-070(L)(13). Given the interrelationship between shoreline permit
conditions and SEP A conditions, the ERC needed to determine whether the project was
consistent with the City's adopted SEP A policy for shorelines, as a pre-requisite to
come!etion of the City's SEPA review.
City code required that any mitigation conditions addressing the requirements of the
City'S shoreline regulations be specific, in order to qualifY as SEPA mitigation measures.
MISTY COVE ASSOCIA nON
APPEAL OF DNSM
ISS6)
-5-
Socius Law Group, PLLC
ATTORNEYS
Two UnIon Square. 601 Union Street, Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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RMC Sec. 4-9-070(L)(9). In the absence of specific mitigation measures addressing
compliance with shoreline regulations, the DNSM must be overturned and remanded for
further study.
C. Failure to Impose Specific SEPA Conditions Necessary for Consistency with
Other Land Use Pennit Regulations.
6 It does not appear that the Optional DNS issued by the City covered more than a
7 shoreline substantial development pennit application. On September 6, 2006, the applicant
8 added pennit applications for a Master Site Plan Approval and Site Plan Approval. The ERC
9 Report & Decision dated October 16, 2006, appears to have expanded the Optional DNS
10 notice to now include more than the shoreline permit, specifYing "SA-M" and "SA-H"
11 designations. It is not clear from the text of the decision or staff recommendation exactly
12 what permit applications are covered by the DNS.
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D. The Record Lacks Evidence the Public Comments Were Considered for This
DNS. as Required by SEP A.
It is little surprise the DNSM failed to include specific mitigation conditions
addressing timely-submitted neighborhood comments and concerns. In the City's haste to
fast-track the permitting process, detailed comments from Misty Cove and other members of
the public were not considered.
The City's SEPA record does not contain any evidence that the staff or ERC
considered Misty Cove's comments, timely filed prior to issuance of the DNSM. As the
City'S SEPA Responsible Official, the ERC had a duty to consider Misty Cove's written
comments and those of other members of the public, prior to issuance of the DNS. WAC
197-11-355(4).5
, This is the citation for a DNS issued under the Optional DNS process. It is unclear from the Report &
Decision issued by the ERC on October 16, 2006 whether the ERC utilized the Optional DNS process. If it did
no~ the State SEPA Rules require consideration of public comments for a period of 14 days following issuance
of the DNS. During that period, WAC 197-11-340(2)(1) requires the responsible official to "reconsider the
DNS based on timely comments."
MISTY COVE ASSOCIA nON
APPEAL OF DNSM
15561
-6-
Socius Law Group, PLLC
A T TOR N E Y S
Two Union Square. 601 Union Streel. Suite 4950
Seattle, WaShington 98101.3951
Telephone 206.838.9100
t=~csimile 206.838.9101
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Misty Cove submitted a comment letter to the City in July 2006, and again in early
October 2006, both prior to issuance of the DNSM. Neither letter was even mentioned in the
staff report to the ERC or in the ERC's written decision and letter issuing the DNSM. It
seems clear the complete lack of design mitigation conditions in the DNSM is in error in
light of the comments the City received from the public concerning inconsistencies with the
City'S adopted SEPA policies, which include the Shoreline Management Master Program and
its regulations.
E. The ERC Failed to Examine UnderlYing Permit Applications and Proposed
Conditions and Failed to Require Sufficient Environmental Information.
The exhibits offered to the ERC for its review are described in the staff
recommendation dated October 16, 2006. None of these exhibits include the specific pennit
application materials covered by the DNS. Because the DNS relies upon mitigation
measures applied to other permits through existing codes, it was logically necessary for the
ERC to review specific measures proposed for the underlying permits, which apparently
were not presented.
By way of illnstrative example, Paragraph 5 of the DNSM states that Mitigation
Measures for the DNS are described in "the Shoreline Substantial Development Permit
Application component of this Land Use Action." The record of the ERC decision shows
that the ERC did not appear to consider the shoreline permit application and did not review
any specific mitigation measures proposed as conditions for that application. Thus, the
DNSM is flawed by citing to the shoreline permit mitigation measures when they are not
listed in the DNS and are not otherwise disclosed in the application materials or record of
staff!eview. Under City code, the mitigation conditions for the application had to be listed in
the Notice of Application, so that the public had an opportunity to comment. This was not
done.
MISTY COVE ASSOCIATION
APPEAL OF DNSM
15563
-7-
Socius Law Group, PLLC
A T TOR N E Y S
Two Union Square. 601 Union Street, Suite 4950
Seattle. Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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Similarly, the staff recommendation, dated October 16, 2006, discusses ideas for
mitigation of building design, without proposing any specific mitigation conditions for
underlying permits related to design, mass or scale. Clearly, the DNSM list of mitigation
measures on Page 3 of the ERC Report & Decision does not address these issues or identity
conditions proposed for any underlying permit.
The staff recommendation curiously identifies not a single mitigation measure related
to impacts to shoreline water quality or fish habitat. Under the heading "Water" (page 5,
Para. 3), the staff recommendation notes a proposal to improve the functions and values of
the riparian zone, but does not cite to any specific proposed permit condition and does not
propose any DNS mitigation condition. In fact, the recommendation in its entirety refrains
from mentioning the presence of endangered salmonid species, their documented use of the
shoreline during migrations, or any proposed mitigation to preserve and enhance this
valuable state and federal resource. See discussion at Page 11, Para. 10, Staff
Recommendation ("No mitigation is required.").
The staff report to the ERC does acknowledge there will be five new stormwater
drainage system outfalls to Lake Washington at the ordinary high-water mark. Because the
staff report failed to describe any ESA habitat assessment, the ERC did not carefully consider
probable significant adverse environmental impacts of stormwater runoff on that habitat.
In the absence of materials from the applicant or staff, the ERC had a duty to direct
staff or the applicant to produce missing information concerning not only proposed
conditions for underlying permit applications but also basic environmental data necessary to
assess impacts and a record of public comments. Insufficient data was provided to the ERC
concerning:
• the presence of fish;
• the presence of endangered species;
MISTY COVE ASSOCIATION
APPEAL OF DNSM
15563
-8-
Socius Law Group. PLLC
ATTORNEYS
Two Union Square. 601 Union Street, Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.~100
Facsimile 200.8S8.9101
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• the current quality of nearshore habitat for aquatic species and birds;
• the impacts of five new stormwater discharge facilities on habitat and
water quality;
• the impacts of construction sediments on nearshore habitat and fish
migrations;
• proposed mitigation to address specific impacts to the shoreline
ecosystem; and
• public concerns about changes to the shoreline.
Misty Cove requests the Hearing Examiner remand the DNSM to develop missing
information, review proposed voluntary conditions for underlying permits, and for further
consideration of appropriate mitigation conditions to be incorporated into the DNS, following
a review of public comments.
F. Errors Incorporated by Reference.
12 Descriptions of errors of law or fact are contained in other sections of this appeal and
13 are hereby incorporated by reference in their entirety as though fully set forth in this section.
14 III. STANDING
15 As required for SEPA appeals and under RMC Sec. 4-8-11 O(E), Misty Cove
16 incorporates the above and alleges the following facts demonstrating that its interests are
17 among those that are required to be considered, the decision prejudices those interests, the
18 prejudice will result in injury in fact, and a decision in favor of Misty Cove would
19 substantially eliminate or redress the prejudice.
20 The interests of Misty Cove residents are within the zone of interests the City must
21 consider, as specified in City code and SEPA. The City's shoreline regulations expressly
22 require consideration of view and aesthetic impacts on adjacent residents. RMC Sec. 4-3-
23 090(R)(3); RMC Sec. 4-3-090(L)(5)(c). Similarly, the SEPA Checklist required for the
24 project included discussion of impacts to traffic, storm water, fish and wildlife habitat,
25 parking, aesthetics, noise, light and glare, all environmental factors to be considered by the
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MISTY COVE ASSOCIA nON
APPEAL OF DNSM
15561
-9-
Socius Law Group, PLLC
A T TOR N E Y S
Two Union Square. 601 Union Street. Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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City during its SEP A review. Issues of height, noise, design, parking and traffic mitigation
are all issues considered as part of the City's review for the under/ying Master Site Plan
approval. The City's critical areas and shoreline regulations also require protection of the
natural resource along the shoreline.
The interests Misty Cove members seek to address in this appeal are within the zone
of interests the City was required to consider under its code, the Shoreline Management Act,
and SEPA. Thus, the City was required to consider the comments and interests of Misty
Cove residents related to views, traffic, storm water, fish and wildlife habitat, parking,
aesthetics, noise, light and glare.
The injury in fact and manner in which the Association and its members are
prejudiced by the DNSM are set forth in detail in the Declaration of Eleanor Margo
Kennamer, attached hereto as Exhibit A, the Declaration of Steve Jansen, attached hereto as
Exhibit B, and the Declaration of Brian Sabey, attached hereto as Exhibit C.
With 50 residential units on four floors and a marina, Misty Cove residents have real
property interests in their use and enjoyment of the Misty Cove property and adjacent Lake
Washington, including views. Under the Declaration of Condominium for Misty Cove
recorded on February 11, 1980, all ofthe owners of units at Misty Cove are members of the
Association. The Association represents the interests of its members in this appeal.
Declaration of Eleanor Margo Kennamer, See, Save a Valuable Environment v. Bothell, 89
Wn. 2d 862, 865-68, 576 P.2d 401 (1978),
Many, ifnot all, of the individual members of the Association are likely to be harmed
by significant adverse enviroumental impacts of the proposed Seahawks Practice Facility that
are immediate, concrete and specific, related to views, traffic, stormwater, fish and wildlife
habitat, parking, recreation, aesthetics, public safety, noise, light and glare. See, e,g..
MISTY COVE ASSOCIATION
APPEAL OF DNSM
lSS6J
-10-
Socius law Group, PLLC
A T TOR N E Y S
Two Union Square. 601 Union Street, Suile 4950
Seattle. Washington 98101.3951
Telephone 206.838.9100
FacsimUe 206.838.9101
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Declaration of Steve Jansen. As such, the Association is prejudiced by the City's decision to
issue a DNSM that fails to adequately mitigate those impacts.
The residents of Misty Cove have chosen to live there because they use and enjoy
Lake Washington and the shoreline adjacent to it. All of the units of Misty Cove have
balconies and patios. The lake and the shorelands can be viewed from almost every unit.
Misty Cove residents frequently walk on the shorelands, view the water and shorelands, fish,
boat, engage in watersports, watch wildlife, and generally enjoy all of the sights and
activities available on Lake Washington and the adjacent shorelands. Declaration of Eleanor
Margo Kennamer, ~ 4.
Because of the proposed massive height and scale of the structure, the lack of
conditions requiring design modifications and a lack of visual mitigation measures in the
DNSM, views of the water and shorelands will be impaired from nearly half of the units of
Misty Cove and from numerous other vantage points throughout their property. Declaration
of Steve Jansen, ~ 3. The proposed indoor practice facility will cast a huge shadow over the
Misty Cove property, particularly in the months from late fall to early spring when the sun
crosses the southern sky. The proposed facility will not only block views of the water, it will
block views of the sun, sky, vegetation, and wildlife associated with the Lake Washington
shorelands. In the case of residents on the ground floor, at least one resident believes the
120-foot high facility will prevent his unit from being exposed to the sun for the better part of
most winter days. Declaration of Steve Jansen, 'r/4.
Misty Cove Association members also have an interest in use and enjoyment of the
Lake Washington'S water quality, as reflected in the health of the aquatic ecosystem. The -proposed grading, construction, retaining wall, and new stormwater outfalls within the
shoreline and in some case below the ordinary high water mark are likely to have significant
adverse impacts on shoreline habitat for endangered species of fish, other fish, birds and
MISTY COVE ASSOCIA nON
APPEAL OF DNSM
(556)
-11-
Socius law Group, PllC
ATTORNEYS
Two Union Square. 601 Union Street, Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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mammals using the nearshore habitat. Association members have observed bald eagles and
osprey on the Port Quendall property to the south (Seahawks site) and regularly engage in
bird-watching. Declaration of Steve Jansen, ~ 5; Declaration of Eleanor Margo Kennamer,
~ 10; Declaration of Brian Sabey, ~ 4. Association members who live on the north side of
the property enjoy walking along the waterfront and sitting beside the Misty Cove pool,
which is located on the southwest portion of the property to engage in birdwatching.
Declaration of Eleanor Margo Kennamer. ~ 10.
Misty Cove members also fish and utilize boats parked in one of the 24 boat slips
available to them in the Misty Cove Marina. Association members frequently boat on Lake
Washington in the vicinity of the Port Quendall Property. Declaration of Eleanor Margo
Kennamer, ~ II; Declaration of Sieve Jansen, ,,/6; Declaration of Brian Sabey, ,. 6. Probable
significant adverse environmental impacts from stormwater runoff include but are not limited
to damage to fish, poor visibility in the Lake waters, and sedimentation of nearshore gravels,
all of which directly harm Misty Cove members enjoying the shoreline and waters of Lake
Washington. The DNSM fails to include mitigation measures necessary to prevent these
probable significant adverse environmental impacts.
The Association and its members are also harmed by the DNSM decision because it
does not contain mitigation measures designed to reduce the noise and harmful effects of the
proposed service, delivery, and trash functions on the northwest corner of the building
nearest the shore and Misty Cove. The noise of truck traffic and clanging dumpsters, as well
as odors, debris, and vermin will cause harm and annoyance to Misty Cove and the members
of the Association. Declaration of Steve Jansen, ~ 8.
Because Misty Cove is located near the end of a dead end road, Association members
believe it more than likely the Football Northwest proposal will result in a substantial
increase in traffic and parking problems. Currently, the only traffic in the area leads to Misty
MISTY COVE ASSOCIATION
APPEAL OF DNSM
1556)
-12-
Socius Law Group, PLLC
ATTORNEYS
Two Union Square. 601 Union Street, Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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Cove and the adjoining Condominium. The DNSM failed to include mitigation measures
capable of reducing what is projected to be an enormous amount of new traffic to the area,
associated with summer training camp, when thousands of people a day are expected to visit
the Seahawks property. Without DNS mitigation measures, Misty Cove Association
members believe their parking lot and dock will be utilized as a shortcut to gain access to the
Seahawks facility. Declaration 0/ Eleanor Margo Kennamer, '1/14; Declaration o/Steve
Jansen, '1/9.
Parking problems are expected to increase as a result of the proposal. Misty Cove has
only 98 parking stalls for 50 units. Losing street parking in the area during Seahawks events
will increase the demand for parking within the Misty Cove property and potentially create
security problems as hundreds of visitors use the area during training camp. The DNSM did
not include mitigation measures capable of addressing increased parking demand off-site and
security measures for crowd control. Declaration o/Steve Jansen, '1/9; Declaration a/Brian
Sabey, '1/9.
The proposal evidently would not include the construction of lamp posts and field
lighting for night-time practice. Misty Cove would be directly harmed by such lighting,
because glare would likely be seen from the Misty Cove property at night, thus substantially
reducing the visibility of night-time skies through "light pollution." Misty Cove believes the
SEPA DNSM should have included permit conditions permanently prohibiting night-time
lighting of outdoor play fields. No mitigation conditions are currently proposed in the
DNSM.
IV. RELIEF SOUGHT
Misty Cove seeks an order remanding or revising the above-captioned DNSM.
Remanding the DNSM to the ERC for additional study or revising the DNSM to include
necessary mitigation conditions would substantially eliminate or redress each of the above-
MISTY COVE ASSOCIATION
APPEAL OF DNSM
15563
-13-
Socius Law Group. PLLC
ATTORNEYS
Two Union Square. GOl Union Sireet, Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
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described injuries to the interests of Misty Cove members, related to views, traffic,
stormwater, fish and wildlife habitat, parking, recreation, aesthetics, public safety, noise,
light and glare.
Petitioner Misty Cove requests that the remand order require adoption of specific
mitigation conditions related to views, traffic, stormwater, fish and wildlife habitat, parking,
recreation, aesthetics, public safety, noise, l~ht and glare, as described in this appeal.
DATED this fo~ dayof / Wv~ ,2006.
MISTY COVE ASSOCIATION
APPEAL OF DNSM
1556)
SOCIUS LAW GROUP, PLLC
mas F. Peterson, WSBA #16587
Attorneys for Misty Cove Association of
Apartment Owners
TOM EHRLICHMAN, AITORNEY AT LAW
BY~~
Tom Ehrlichman, WSBA#20952
Attorneys for Misty Cove Association of
Apartment Owners
-14-
SociUS law Group. PllC
ATTORNEYS
Two Union Square. 601 Union Street. Suite 4950
Seattle, Washington 98101.3951
Telephone 206.838.9100
Facsimile 206.838.9101
EXHIBIT D
Notice of Appeal of Appeal: Appeal of DNSM (by Steve Jansen)
City of Renton
Hearing Examiner
City of Renton
CliY~RENT~
NOV 062006
1055 South Grady Way
Renton, W A 98055
..-
I am appealing the Enviromental Committee Report for the Seahawks Headquarters &
Training Facility file number LUA06-073, ECF, SA-M, SA-H, SM located at 5015 Lake
Washing Blvd N, Renton, WA, 98056 dated October 16, 2006.
Specifically I am appealing because I feel that the project has failed to meet two
following criteria:
1) Effect on Adjacent Properties: The proposed use at the proposed location shalI not
result in substantial or undue adverse effects on adjacent property. The following site
requirements shall be required: (Ord. 3599,1-11-1982)
specifically sub-section C
c. Height: Building and structure heights shall conform to the requirements of the zone in
which the proposed use is to be located. Spires, belltowers, public utility antennas or
similar structures may exceed the height requirement upon approval of a variance.
Building heights should be related to surrounding uses in order to allow optimal sunlight
and ventilation, and minimal obstruction of views from adjacent structures.
I also feel that the enviromental plan does not meet the requirements of RMC: (Ord.
5191, 12-12-2005) -4-3-050 CRITICAL AREAS REGULATIONS:
There is no detailed plan for the Wetlands Mitigation & the restoration of the shoreline
along Lake Washington.
Sincerely,
~ik·\
Steve Jansen
5021 Jljpley Lane #4
Renton, W A 98056
CC'.
EXIllBITE
Stipulation and Order relating to Target
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CITY OF eENTON
DEC 11 2006
.. RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) re:
The Director's Administrative Decision
Designating The Landing Master Plan
Application a Planned Action
The Director's Master Site Plan Approval
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Alliance for South End (ASE) and
Brad Nicholson re:
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The Director's Administrative Site Plan Approval)
and InterpretationIPolicy Decision )
------------------------)
NO. LUA-05-136, SA-A, SM
NO. LUA-05-136, SA-M
NO. LUA-06-071, SA-A
STIPULATION AND ORDER
I. RECITALS
I. Applicant Harvest Partners has applied for approvals related to a mixed-use
19 commercial and residential project known as The Landing, which includes retail, office,
20 entertainment, restaurant, hotel' and residential uses with associated parking on approximately 47
21 acres of land within the City of Renton, which is more particularly described in Exhibit A, which is
22 attached hereto and incorporated herein by this reference ("The Landing Project"). The Site Plan for
23 The Landing Project contains Quadrants A, B, and C, as depicted on Exhibit B, which is attached
24 hereto and incorporated herein by this reference.
25 2. Target Corporation, a Minnesota corporation ("Target"), has applied for a building
26 permit to construct a retail store in Quadrant C of the Landing Project, which is depicted as Building
STIPULATION - 1
Y:IWPIASE\SETfLEMENTI VESTING SETTLEMENT AGREEM ENTS\l20406IASE TARGET
STIPULATION 120406 FINAL.DOC
Bucke-Gordon llP
2025 First AVl'lnue, SUite 500
Seattle. WA 9B121
(206) 382·9540
(!~; Larry JJarrel1
Frd Kaul'mdl1
Ned /.IJa#'s Ll/~o/ /):.1"" l
:
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100 on the site plan attached hereto as Exhibit C and incorporated herein by this reference (the
2 "Quadrant C Site Plan"). Target's plans include construction of a principal use store, roads,
3 driveways, access ways, utilities, street improvements, drive aisles, parking, and loading as may be
4 required in Target's reasonable discretion to construct, occupy and operate its retail store
5 (collectively referred to herein as "Target's Landing Project"), all as shown on Exhibit D, which is
6 attached hereto and incorporated herein by this reference.
7 3. Harvest Partners has applied for building permits to construct additional retail
8 structures in Quadrant C, including Buildings 103 and 104 as depicted on the Quadrant C Site Plan.
9 4. Target's Landing Project and Buildings 103 and 104 are collectively referred to herein
10 as the "Vested Developments" and arc shown on Exhibit D hereto.
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5. All of the parties hereto have entered into a separate settlement agreement of even
date herewith ("Settlement Agreement") related to the Vested Developments.
6. The above entitled causes have the potential to affect the Vested Developments and
the parties want to avoid any such effect.
7. In accordance with the Settlement Agreement, the parties desire to enter this
stipulation related to the above entitled causes.
II. STIPULATION
IT IS HEREBY STIPULATED by and between the parties hereto, by and through their
19 counsel of record, that:
20 1. The above entitled causes and allegations therein do not pertain to and shall have no
21 effect upon the Vested Developments. The Vested Developments are hereby deemed vested as ofthe
22 date of filing of their respective building permit applications, and may proceed with the building
23 permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of
24 the above entitled causes; and
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2. ASE and Nicholson reserve all of their claims as to all portions of The Landing
Project other than the Vested Developments, including without limitation Buildings 101 and 102 as
STIPULATION - 2
Y:\ WP\ASE\SE1TLEMEN1WESTING SEHlEMENT AGREEMENTS\l20406\ASE TARGET
STIPULATION 120406 FINAL.DOC
Bucko Gord on LLP
2025 First Avenue-, Suite 500
Seattle, WA 98121
(206) 38;2·9540
i ,
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I depicted on the Quadrant C Site Plan and Quadrants A. B, and D. The Parties all agree that the
2 Settlement Agreement and this Stipulation and Order shall not preclude or diminish any of the
3 parties' claims, defenses or arguments in any current or future appeals of the remaining portions of
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The Landing Project and no party shall assert any position to the contrary.
<F-
DATED this iI' &y of December, 2006
STIPULATION - 3
CITY OF RENTON
By
L. Fontes, WS A #9604
.~rtant City Attorney
BUCK & GORDON, LLP
By (SEE ATTACHED)
. Peter S. Buck, WSBA #5060
Attorneys for Petitioners
Brad Nicholson and Alliance for South End
{ASE}
HILUS CLARK MARTIN & PETERSON, P.S.
By (SEE ATTACHED)
Jerome L. Hillis, WSBA #1704
T. Ryan Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant Harvest Partners
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
Buck~ Gordon LLP
Y~WPlASElSETTLEMEN1WESTINO SETTLEMENT AGREEMENTS\120406\ASe TAROET
STIPULATION 120406 FDlAI.DOC
202S First Avenn. Suite 500
Seattte, WA 98111
(2Q6J 362·9540
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depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Parties all agree that the
Settlement Agreement and this Stipulation and Order shall not preclude or diminish any ofthe
parties' claims, defenses or arguments in any current or future appeals of the remaining portions of
The" Landing Project and n party shall assert any position to the contrary.
DATED this day of December, 2006
CITY OF RENTON
By (SEE ATTACHED)
By
Zanetta L. Fontes, WSBA #9604
Assistant City Attorney
Peter Bu k, WSB #5060
Attorneys for Petitioners
Brad Nicholson and Alliance for South End
(ASE)
HILLIS CLARK MARTIN & PETERSON, P.S.
By (SEE ATTACHED)
Jerome L. Hillis, WSBA # 1704
. T. Ryan Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant Harvest Partners
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
STIPULATION -3
Y ,\ WPIASE\SETI"LEMEN1WESTING SETI"LEMENT AG REEMENTS\ 120406\ASE TARGET
STIPULATION 120406 FINAL-DOC
Buck~ Gordon llP
2025 First Avenue, Suile 500
Sealtle, WA 98121
. (206) 382·95110
.. . '.
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depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Parties all agree that the
Settlement Agreement and this Stipulation and Order shall not preclude or diminish any oftM
parties' claims, defenses or arguments in any current or future appeals of the remaining portions of
The Landing Project and no party shall assert any position to the contrary.
6 DATED this __ day of December, 2006
7 CITY OF RENTON
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By (SEE ATTACHED)
Zanetta L. Fontes, WSBA #9604
Assistant City Attorney
BUCK & GORDON, LLP
By (SEE ATTACHED)
Peter S. Buck, WSBA #5060
Attorneys for Petitioners
Brad Nicholson and Alliance for South End
(ASE)
HILLIS CLARK MARTIN & PETERSON, P.S.
(REMAINDER OF PAGE IS INTENTIONALLY BLANK]
STIPULA 1:ION - 3
y,\ WPlASElSETTLEMENTI VESTING SETTLEMENT AGREEMENTS\ 120406\ASE TARGET
STrPULATION 120406 FINAL. DOC
Bucke> Gordon LLP
21J25 First Avenue, Suile 500
Seillltl€l, WA 98121
,)06) )8;1·9540
III. ORDER
2 Pursuant to the foregoing Stipulation of the parties, it is hereby ORDERED that:
3 I. The above entitled causes and allegations therein do not pertain to and shall have no
4 effect upon the Vested Developments. The Vested Developments are hereby deemed vested as of the
5 date of tiling of their respective building permit applications, and may proceed with the building
6 permit process and, thereafter, to construction, occupancy and operation regardless of the outcome of
7 the above entitled causes.
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2. ASE and Nicholson reserve all of their claims as to all portions of The Landing
Project other than the Vested Developments, including without limitation Buildings 101 and 102 as
depicted on the Quadrant C Site Plan and Quadrants A, B, and D. The Settlement Agreement and
this Stipulation and Order shall not preclude or diminish any of the parties' claims, defenses or
arguments in any current or future appeals of the remaining portions of The Landing Project and no
party shall assert any position to the contrary.
DONE this __ day of December, 2006.
City of Renton Hearing Examiner
STIPULA nON -4
y,IWPIASElSETrLEMENTWESTING SElTLEMENT AGREEMENTSli2()406IASE TAROET
STIPULATION )20406 FINAL.DOC
Buck@Gordon LLP
2025 Fir~t Avenue. Suile 500
Seanle. WA 98121
(200) 382·9540
HeMI
HILL I S
CLARK
MARTIN &
PETERSON
fau' o/f/'eN
CITY OF RENTON
JAN 1 2 2007
RECEIVED
CITY CLERK'S OFFICE January 12,2007
flIlN]) peL' vejie"P ,,' J/! 0 Z 1M /..., A, IN.
Mr. Fred Kaufman
Hearing Examiner
City of Renton
1055 South Grady Way, 7th Floor
Renton, W A 98055
Re: Harvest Partners' Motions 10 Dismiss
Dear Mr. Kaufman:
Enclosed please find:
Via Legal Messenger
(l) Applicant Harvest Partners' Motion To Dismiss ASE And Nicholson
Appeals From The Director's InterpretationIPolicy Decision For Lack
Of Jurisdiction (the "Interpretation Decision Motion"); and
(2) Applicant Harvest Partners' Motion To Dismiss ASE And Nicholson
Appeals From The Landing Administrative Site Plan Approval For
Lack Of Standing (the "Site Plan Motion").
Because the ASE appeals were not consolidated, the Applicant is filing these as
two separate appeals. However, please note that some of the issues in each motion
overlap. For this reason, we suggest that the Interpretation Decision Motion be read prior
to the Site Plan Motion. We have also, for your convenience, indicated in the Site Plan
Motion the point at which the remaining arguments are essentially the same as those
presented in the Interpretation Decision Motion (beginning at the bottom of page 6).
E-Mail: kdb@hcmp.com
Enlosures
#345414 18449·004 7#$%OILdoc
Very truly yours,
500 Galland Building
1221 Second Avenue
Seattle, Washington
...........
TIT MERITAS
LAW FIRMS WORLDWIDE
98101-2925
phone 206.623.1745
fax 206.623.7789
www.hcmp.com
A PROFESSIONAL SERVICE CORPORATION
2
3
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5 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
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In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
The Director's Administrative
InterpretationfPolicy Decision.
APPLICANT'S MOTION TO DISMISS
ASE AND NICHOLSON APPEALS OF
THE DIRECTOR'S INTERPRETATION!
POLICY DECISION FOR LACK
OF JURISDICTION
I. RELIEF REQUESTED
13 Applicant Harvest Partners seeks an order from the Hearing Examiner dismissing the
14 appeals of Alliance for South End (ASE) and Brad Nicholson, dated August 31, 2006, of the
15 City of Renton's InterpretationfPolicy Decision dated July 17, 2006. (Because the appeals
16 failed to include a particular case number in the caption, this motion also does not include a
17 case number. For reference purposes, however, the Lowe's approval, into which the
18 InterpretationfPolicy Decision was incorporated, is case number LUA-05-161, SA-H, SA-M,
19 ECF). The appeals should be dismissed as untimely and for lack of standing, as discussed
20 below.
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II. OVERVIEW
This case involves appeals of a routine administrative interpretation decision made by
the City of Renton's Development Services Division. Although the City's interpretation
decision was made on July 17,2006, and although the City's InterpretationfPolicy Decision
was subsequently incorporated into an approval for Lowe's issued on August 8, 2006, the
appeals were not filed until the end of August, well past the expiration of the 14-day appeal
period. Contrary to their assertions in the appeals, neither appellant was entitled to special
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 1 of 14
HILLIS CLARK MARTIN &
PETERSON, P. S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
notice of the administrative decision. Furthermore, both ASE and Nicholson lack standing to
2 bring these appeals, for the reasons set forth below.
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III. STATEMENT OF FACTS
A. City of Renton Issues Administrative Interpretation Decision
I. Interpretation Decision relates to modification o/setbacks in UC-Nlzone.
On July 17, 2006, the City of Renton Development Services Division issued an
"InterpretationIPolicy Decision" (hereinafter the "Interpretation Decision") related to the
setback standards in the Urban Center-North 1 (UC-NI) zone of Renton.
As set forth in the Interpretation Decision, the Renton Municipal Code establishes
maximum setback requirements for the downtown commercial zones. In the UC-Nl zone, the
maximum setback for front yards and for side yards along streets is five feet. RMC 4-2-120E.
In other commercial zones, the development standards include provisions allowing for
administrative modification of the maximum setback requirements during the site plan review
process. See, e.g., RMC 4-2-120A and -120C.IS. However, the development standards for
the UC-NI zone are silent on the modification process.
As set forth in the Interpretation Decision, the City acknowledged that the
modification process for setbacks within the UC-Nl zone should be consistent with the
modification process for setbacks within other commercial zones. Accordingly, the
Interpretation Decision permits modification of the maximum setback requirements in the
UC-NI zone during the site plan review process, as long as specific criteria are met as set
forth in RMC 4-2-120C.lS.
The Interpretation Decision establishes an appeal period of 14 days from the date of
the Interpretation Decision, pursuant to RMC 4-8-110. Therefore, the appeal period for the
Interpretation Decision expired on July 31, 2006. Neither ASE nor Nicholson appealed
within that time frame.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 2 of 14
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
SeaHle WA 98101-2925
206.623.1745; fax 206.623.7789
2. Hearing Examiner incorporates the Interpretation Decision in approvals of
the Lowe's development.
2 The Interpretation Decision was made in the course of the City's review of
3 development applications for the proposed Lowe's development in the UC-NI zone. I Lowe's
4 applied to the City for approval of its site plan, master plan, and environmental review. The
5 Lowe's site is a large site located directly east ofthe Applicant's proposed development, The
6 Landing. The Lowe's site plan contained setbacks that exceeded the maximum setback
7 requirements for the UC-NI zone, along both Garden Avenue N. on the west side of the
8 Lowe's site, and Park Avenue N. on the north side of the Lowe's site.
9 On July II, 2006, in preparation for a public hearing on the Lowe's plans, the City
10 mailed a "Preliminary Report to the Hearing Examiner" (the "Preliminary Report") to parties
II of record in the Lowe's project. See Declaration of Stacy Tucker and Preliminary Report,
12 attached hereto as EXHIBIT A. The Preliminary Report includes a discussion of the setbacks
13 in the Lowe's site plan, and specifically references the Director's Interpretation Decision
14 permitting modification to the setbacks. See Ex. A, Preliminary Report at 8.
15 On July 18, 2006, the City of Renton Hearing Examiner held a public hearing on the
16 Lowe's site plan, master plan, and environmental review. The Hearing Examiner's decision
17 (the "Lowe's Decision") incorporates the Interpretation Decision in its examination of the
18 proposed setbacks for the Lowe's portion of the UC-NI zone. See Lowe's Decision, August
19 8,2006, File No. LUA-OS-161, SA-H, SA-M, ECF, attached hereto as EXHIBIT Band
20 incorporated herein by this reference. According to Finding 13 of the Lowe's Decision, "The
21 Director of Development Services issued a determination allowing larger setbacks without a
22 variance." The Hearing Examiner approved the proposed master plan and site plan for
23 Lowe's, without revision to the proposed setbacks. On August 8, 2006, the Lowe's Decision
24 was transmitted to all parties of record with the standard notice that the appeal periods were
25 running. See Ex. B, Lowe's Decision at 9.
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27 I The Renton Municipal Code authorizes the PlanningiBuilding/Public Works Administrator to make
interpretations regarding the implementation of unclear or contradictory development regulations.
28 RMC 4·1-080.A.1.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 3 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
Therefore, in the course of the Lowe's development review, Lowe's, and all parties of
2 record for the Lowe's project, were provided notice of the Interpretation Decision on two
3 different occasions -upon the mailing of the Preliminary Report, and upon the mailing of the
4 Lowe's Decision.
5 B. ASE Files Untimely Appeal and Lists Mr. Nicholson's Name on the Appeal
6 On August 31, 2006, approximately one month after the appeal period had expired for
7 the Interpretation Decision, and approximately three weeks after the Hearing Examiner had
8 issued approvals for the Lowe's development incorporating the Interpretation Decision, ASE
9 filed an appeal of the Interpretation Decision.2 ASE asserts that its appeal is timely based on
10 the date that ASE and Mr. Nicholson received "actual notice" of the Interpretation Decision.
II ASE Appeal at 3. Furthermore, the appeal makes only general assertions of standing for ASE
12 and Mr. Nicholson. ASE Appeal at 3-5.
I3 Although Mr. Nicholson's name is included in the caption of the appeal, neither
14 Mr. Nicholson, nor an attorney for Mr. Nicholson, signed the appeal. Only Peter Buck, an
15 attorney with Buck & Gordon LLP, signed the appeal as "Attorneys for Alliance for the
16 South End." In addition, only ASE, not Mr. Nicholson, submitted a request for relief in the
17 "Conclusion" section of the appeal. ASE Appeal, at 9. Finally, only one filing fee was
18 submitted for the appeal, by the attorneys for ASE. See City of Renton's Motion to Dismiss
19 Appeal of Brad Nicholson of the Director's InterpretationIPolicy Decision. Neither
20 Mr. Nicholson, nor an attorney for Mr. Nicholson, submitted a filing fee for his supposed
21 appeal.
22 C. Corporate Status of ASE
23 ASE is a Washington non-profit corporation established in May of2006'by the
24 attorney for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall.
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27 ' ASE has also appealed The Landing's site plan approval, LUA-06-071 SA-A. ML Nicholson's name also
appears in that appeaL Because the appeals were not consolidated, the Applicant has filed separate motions to
28 dismiss each of the appeals.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 4 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
In May and June 2006, ASE filed appeals of the City's master plan approval for The Landing,
2 and the City's determination that The Landing was consistent with the adopted Planned
3 Action Ordinance. In the course of those appeals, and based upon ASE's official filings with
4 the Washington Secretary of State's office, the Applicant gathered the following facts related
5 to ASE's corporate status:
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• As of the date of the hearing on dispositive motions for those appeals, ASE had
only one named member, Brad Nicholson.
• Mr. Buck, an attorney whose law firm represents Westfield, served as ASE's
initial Director, President, Incorporator and Secretary.
• ASE replaced Mr. Buck with a new Director and President, Margaret Potter.
Ms. Potter is a former employee of Buck & Gordon, the firm representing
Westfield.
• Westfield is funding ASE' s litigation.
• According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to the
15 Applicant on the eve of the hearing on ASE's previous appeals, ASE's members
16 had very limited rights overall, and had no rights whatsoever in terms of directing
17 the course of ASE's litigation. A copy of the excerpt from ASE's Bylaws is
18 attached hereto as EXHIBIT C and incorporated herein by this reference.
19 Based on these facts and standing jurisprudence, on September 5, 2006, the City of
20 Renton Hearing Examiner dismissed both of ASE' s appeals for lack of standing. A copy of
21 the Hearing Examiner's decision is attached hereto as EXHIBIT D and incorporated herein by
22 this reference (the "Hearing Examiner Decision").
23 . At a pre-hearing conference on this appeal, ASE was asked whether anything
24 pertaining to standing had changed. No additional information has been provided; therefore,
25 this motion is based on facts of record.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 5 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
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IV. ARGUMENT
A. The Appeal Was Untimely.
1. Actual notice to ASE or Mr. Nicholson was not required.
ASE claims that its appeal is timely because ASE and Mr. Nicholson "did not have
actual notice of the decision until August 21.2006." ASE Appeal at 2. ASE cites to no
provision in the Renton Municipal Code requiring actual notice of the Interpretation Decision
to ASE or Mr. Nicholson, nor any provision requiring public notice of the Interpretation
Decision. Indeed, no such requirements exist. Furthermore, under the Renton Municipal
Code, the time limits for appeals are established by the date the action was taken or the date of
the decision, not the date that an unrelated party received actual notice of the decision.
See, e.g., RMC 4-8-110.E.4(b).
ASE argues that it was entitled to actual notice of the Lowe's Interpretation Decision
based upon the fact that ASE is a party of record for The Landing project. 3 ASE Appeal at 2.
However, ASE's attempt to tie the Interpretation Decision to The Landing project is a thinly
veiled attempt to circumvent the untimeliness of its appeal. As stated above, the City issued
the Interpretation Decision as a result of a completely separate project, unrelated to The
Landing project. ASE attempts to gloss over this fact by failing even to include a case
number in the caption of the appeal. ASE's status as a party of record for The Landing
project has absolutely no bearing on whether ASE was entitled to notice of the Interpretation
Decision. Neither ASE nor Mr. Nicholson was entitled to receive actual notice of the
Interpretation Decision.
Furthermore, ASE claims that constitutional due process required that the City provide
ASE with notice of the Interpretation Decision, implying that as an "affected" party, such
notice was required. ASE Appeal at 2. Once again, ASE overlooks the fact that the
3 ASE does not claim in its appeal that Mr. Nicholson was also a party of record for The Landing at the
27 time the Interpretation Decision was issued. Therefore, to the extent that ASE's argument that it was entitled to
actual notice is based upon its status as a party of record, Mr. Nicholson has no ability to also raise this
28 argument.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 6 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seallie WA 98101-2925
206.623.1745; fax 206.623.7789
Interpretation Decision was not made as part of The Landing's plan approval process, but
2 rather was a stand-alone interpretation made in the course of approvals for a project unrelated
3 to The Landing. The implication of ASE's argument, that the City anticipate and provide
4 actual notice of every administrative decision to every potentially "affected" party, regardless
5 of that party's relation to the decision, has no support in the Renton Municipal Code and is
6 clearly unreasonable.
7 Finally, it must be noted that the Lowe's site is a large site located directly east of The
8 Landing site in the same UC-Nl zone. See site plans and zoning map, attached to the Lowe's
9 Decision at Ex. B. If ASE and Mr. Nicholson were truly interested in development and
10 impacts in the UC-NI zone, they would have been monitoring Lowe's to the same extent they
11 were monitoring The Landing. Had ASE and Mr. Nicholson taken time to become parties of
12 record for the Lowe's project, they would have received actual notice of the Interpretation
13 Decision. See Tucker Decl., Ex. A; Lowe's Decision, Ex. B. But of course, ASE's and
14 Westfield's real motive here is economic rivalry against The Landing. The fact that ASE and
15 Mr. Nicholson did not receive notice ofthe Lowe's Interpretation Decision is a result of their
16 own inactions.
17 2. The appeal period had expired.
18 Regardless of which action related to the Interpretation Decision actually triggered the
19 time period for appeals, ASE's appeal was untimely. The City issued its Interpretation
20 Decision on July 17,2006. As an administrative decision, the appeal period runs for fourteen
21 days from the date the action was taken, thus the appeal period for the Interpretation Decision
22 expired on July 31, 2006. RMC 4-8-11 O.E.4.b. ASE filed its appeal on August 31, 2006, one
23 month after the appeal period had run.
24 In the alternative, even if the appeal period was triggered by the date of the Hearing
25 Examiner's decision implementing the Interpretation Decision, that appeal period would have
26 begun on the date of issuance of the Lowe's Decision, August 8, 2006, and would have
27 expired fourteen days later, on August 22, 2006 -still well before ASE filed this appeal.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 7 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
The Renton Municipal Code does not provide for the tolling or extension of the time
2 limits within which to file an appeal from an administrative decision. The time limits for
3 appeals from administrative decisions are absolute. ASE's appeal was untimely, and should
4 be dismissed.
ASE Lacks Associational Standing. 5 B.
6 1. ASE has the burden to establish associational standing.
7 In order to appeal an administrative decision, an appellant must have standing.
8 RMC 4-8-IIO.E.3.b. A party asserting standing bears the burden of establishing the elements
9 of standing. Concerned Olympia Residentsfor the Environment (Co.R.E.) v. City of
10 Olympia, 33 Wn. App. 677, 683, 657 P.2d 790 (1983). The appellant must demonstrate an
11 injury in fact, and must also show that its allegedly endangered interest is within the "zone of
12 interest" to be protected or regulated. Trepanier v. City of Everett, 64 Wn. App. 380, 382-83,
13 824 P.2d 524 (1992).
14 An association only has standing to bring suit on behalf of its members ifits members
15 would otherwise have standing to sue in their own right. Int'l Ass'n of Firefighters,
16 Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). In determining
17 whether associational standing exists, the U. S. Supreme Court has looked to whether the
18 alleged "members" of an association possess certain "indicia of membership" in the
19 organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333, 344-45 (1977).
20 This "indicia of membership" analysis often turns upon whether the individuals
21 making up the association have the ability to guide the association's actions or exert control
22 over the association's directors. See, e.g., Friends of Tilden Park v. Dist. of Columbia,
23 806 A.2d 120 I, 1208 (D.C. 2002). By focusing on whether the association possesses the
24 "indicia of membership," courts are able to analyze whether the alleged "member" actually
25 has control, or is merely a puppet for other interests.
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 8 of 14
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
2. The Hearing Examiner previously held that ASE lacked
associational standing.
2 Applying the associational standing test to the first round of ASE appeals, the Renton
3 Hearing Examiner determined that ASE had not met its burden of proof to establish standing.
4 Hearing Examiner Decision at 8. The Examiner determined that Mr. Nicholson, the sole
5 named member of ASE, lacked any meaningful control in the organization. Hearing
6 Examiner Decision at 5. Therefore, the Examiner held, ASE failed in demonstrating
7 associational standing: "This office finds that ASE does not have standing. It is a mere shell
8 created by the applicant's potential competitor, SouthcenterlWestfield for the purpose of
9 thwarting a competitor's proposed development." Hearing Examiner Decision at 8.
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3. ASE has presented no evidence that its member(s) have meaningful
control over ASE.
Despite requests by the City at the pre-hearing conference, ASE has not yet presented
evidence sufficient to meet its burden of proof. Indeed, as of the date ASE filed this appeal,
the evidence suggests that the facts have not changed since ASE's first round of appeals.
ASE is still funded and controlled by Westfield, and is still represented by Westfield's law
firm, Buck & Gordon. ASE has still provided evidence of only one alleged member, Brad
Nicholson. Based upon the only portion of ASE's Bylaws that it has provided, the two-page,
undated and unsigned "excerpt," its members' rights remain extremely restricted such that the
members are left with no meaningful control over the organization or the course of this
litigation.
The Examiner must determine if ASE has carried its burden to establish associational
standing based on the evidence provided in the record. ASE has failed to produce any new
evidence to support its associational standing. There remains no evidence whatsoever that
ASE is controlled by a member with standing.
4. ASE has not met its burden to show injury in/act.
Even if ASE was able to demonstrate that it had associational standing to bring this
appeal on behalf of its members, the association also bears the burden of establishing that its
members, if any, meet the elements of standing.
Motion to Dismiss Appeals 0/
Interpretation/Policy Decision -Page 9 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
•
Here, ASE has also failed to demonstrate that its members suffer an injury in fact.
2 While the ASE appeal contains general assertions of injury, it does not contain supporting
3 evidentiary facts to establish a specific, concrete injury to its members.4 Mr. Nicholson is the
4 only known member of ASE, yet ASE has fallen far short of its burden of establishing that
5 Mr. Nicholson has standing. As detailed in Part C.2 below, neither ASE nor Mr. Nicholson
6 has presented evidence to demonstrate that Mr. Nicholson has suffered or will suffer a
7 concrete, particularized injury. By failing to present any evidence of injury in fact to its
8 member, ASE has failed to establish standing.
9 C.
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Mr. Nicholson Is Not a Proper Party.
1. Mr. Nicholson has not perfected an appeaL
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If Mr. Nicholson intended to appeal the Interpretation Decision, the appeal filed by
ASE was inadequate to also serve as Mr. Nicholson's appe.al. Analogous court rules make
clear that all pleadings, including appeals, should include the names, addresses, and
Washington State Bar Association membership numbers of the attorneys for each party, if
any, and should be signed and dated by the attorneys or the parties. See, e.g., RAP 5.3, 18.7;
see also CR II.
Here, although Mr. Nicholson's name is listed in the caption of the appeal, there is no
signature block for Mr. Nicholson or his attorney. The appeal only contains the signature of
the attorney for ASE. The "Conclusion" in the appeal, in which ASE submits its specific
request for relief, omits Mr. Nicholson's name as well. Finally, only ASE paid the filing fee
for the appeal; Mr. Nicholson did not pay a filing fee.
Without a signature by Mr. Nicholson or on Mr. Nicholson's behalf, without a specific
request for relief from Mr. Nicholson, and without a filing fee paid by Mr. Nicholson, there is
no evidence to suggest that Mr. Nicholson or his attorney approved of the appeal, or intended
to file this appeal at all. Indeed, the absence of Mr. Nicholson's personal seal of approval
4 The appeals should be dismissed on the basis of the pleadings and undisputed facts; however, movant
28 hereby reserves the right to request discovery based on any responses that ASE or Mr. Nicholson may file.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 10 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 96101-2925
206.623.1745; fax 206.623.7769
•
anywhere in this appeal, whether by signature, request, or payment of the fee, can only lead
2 one to the conclusion that Mr. Nicholson, the sole named member of ASE, did not perfect an
3 appeal. It is also further evidence that he is not in control of this litigation.
4 In addition to the arguments set forth above, the Applicant joins in the City of
5 Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's InterpretationIPolicy
6 Decision for Lack of Jurisdiction Due to Nicholson's Failure to Perfect his Appeal, which
7 motion is incorporated herein by this reference.
8 2, Mr. Nicholson lacks standing to bring this appeaL
9 Even if ASE's sole signature on the appeal and ASE's payment of the filing fee is
10 deemed sufficient to constitute a separate appeal for Mr. Nicholson, Mr. Nicholson
11 nevertheless lacks standing to bring this appeal.
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a. Appellants must establish standing as to the Interpretation Decision.
Standing must be established as to each and every claim. See DaimlerChrysler
Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial
examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled
to an adjudication of the particular claims asserted.") Therefore, it is important to first
identifY the particular claims in the appeal, and then determine whether the appellant has
presented evidence sufficient to establish standing for each of those claims.
This appeal is not an appeal of The Landing development, nor is it an appeal of any
development approval related to The Landing project. Rather, this is an appeal of an
interpretation decision made by the City of Renton, relating to the ability to modifY setbacks
in a particular zone via the administrative site plan review process. Therefore, in order to
establish standing, ASE and Mr. Nicholson must demonstrate that they have suffered or will
suffer a direct, concrete, particularized injury in fact arising out of this Interpretation
Decision,
Here, there is no relationship between Mr. Nicholson and the challenged action such
that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 11 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
he possibly assert, that he is directly damaged in any way by the Interpretation Decision, or by
2 the resulting ability for the City to modify setbacks via the administrative process. The
3 supposed basis for Mr. Nicholson's standing is simply too remote and indirect to establish
4 standing.
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b. Mr. Nicholson has not met his burden to show injury in fact.
To establish standing, the appellant bears the burden of demonstrating that he will be
specifically and perceptibly harmed by the challenged action; in other words, the appellant
must show a "direct stake" in the controversy. See C. OR.E., 33 Wn. App, at 684, When
alleging a threatened injury, the appellant must present sufficient evidentiary facts to show
that a threatened injury is "immediate, concrete, and specific to him or herself. If the injury is
merely conjectural or hypothetical, there can be no standing." Trepanier, 64 Wn. App. at 383,
A mere assertion of injury, without factual support, is not sufficient to demonstrate an injury
in fact. Id. at 384.
The requirement that the appellant demonstrate his "direct stake" in the controversy
consequently means that generalized grievances are insufficient to establish standing. Courts
have consistently held that there be a particularized injury, specific to the appellant:
It is an established principle ... that to entitle a private individual to invoke the
judicial power to determine the validity of executive or legislative action he
must show that he has sustained or is immediately in danger of sustaining a
direct injury as the result of that action and it is not sufficient that he has
merely a general interest common to all members of the public.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992), quoting Ex parte Levitt,
302 U.S. 633 (1937).
Here, Mr, Nicholson fails to present any evidentiary facts to show that he suffers an
injury that is immediate, concrete, and specific to himself as a result of the Interpretation
Decision. Mr. Nicholson presents no evidence whatsoever of his "direct stake" in the
Interpretation Decision and makes no specific claims of actual or threatened injury to his
person or property arising out of the Interpretation Decision.
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 12 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
Instead, Mr. Nicholson relies on generalized assertions of injury that could be raised
2 by any citizen of the City or, indeed, any member of the public. For example, Mr. Nicholson
3 claims he is injured by his "inability to comment, participate, and voice objections to the
4 City," and by the City's "denial of his rights" to a "community planned and development
5 consistent with" the Renton Comprehensive Plan. ASE Appeal at 5. Such abstract statements
6 have no direct link to the source of the appeal -the City's decision related to modification of
7 setbacks in the UC-NI zone -and such generalized grievances have no direct link to
8 Mr. Nicholson. These assertions are wholly inadequate to establish standing as to this claim.
9 Mr. Nicholson is not a proper party to this appeal. However, even if Mr. Nicholson is
\0 deemed a party, he has not met his burden of proofto establish standing. The Applicant
11 respectfully requests that the Examiner dismiss the appeal from the City of Renton's
12 Interpretation Decision as to Mr. Nicholson.
13 V. CONCLUSION
14 The Renton Municipal Code and Washington law require timely appeals of land use
15 decisions. Where, as here, an appeal is brought after the appeal period has expired, the appeal
16 must be dismissed. The parties to an appeal must have standing as to each and every claim
17 asserted in their appeal. ASE has the burden of proof to demonstrate its associational
18 standing. ASE has failed to demonstrate that it has suffered an injury in fact. Because ASE
19 has failed to carry its burden, its appeal must be dismissed.
20 Mr. Nicholson, as a purported appellant, must have standing in his own right and must
21 perfect his appeal by following the rules. Mr. Nicholson's failure to sign the appeal, and
22 Mr. Nicholson's failure to pay a filing fee, suggest that Mr. Nicholson had no intent to file
23 this appeal. By failing to file a proper appeal, Mr. Nicholson is not a party to this appeal.
24 Furthermore, Mr. Nicholson only asserts generalized grievances without any evidence of
25 particularized harm arising out of the Interpretation Decision, and thus has not established that
26 he has standing to bring this appeal. Mr. Nicholson's appeal must therefore be dismissed.
27 II
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Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 13 of 14
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
of Renton's Interpretation Decision should be DISMISSED.
' ...... Ih DATED this Q' day ofJanuary, 2007.
#341956 18449-004 7b%sOl'.doc 1/12/07
HILLIS CLARK MARTIN &
PETERSON, P.S.
By '-----(
Jerome 1. Hil s, WSBA # 1704
T. Ryan D an, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
Motion to Dismiss Appeals of
Interpretation/Policy Decision -Page 14 of 14
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
SeaUle WA 98101-2925
206.623.1745; fax 206.623.7789
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II
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
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In the Matter of the Appeal of
Alliance for South End (ASE) and
8 Brad Nicholson re: DECLARATION OF STACY TUCKER
9 The Director's Administrative
10 Interpretation/Policy Decision
" __________________________ ~
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13 STACY TUCKER, hereby declares under penalty of pe~ury pursuant to the laws
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of the State of Washington that the follOwing is true and correct:
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16 1. I am a citizen ofthe United States of America, a resident of the State of
17 Washington, over the age of eighteen (18) years, not a party to the above-entitled
18 action, competent to testify to the facts set forth herein, and I make this declaration
19 based upon my personal knowledge.
20 2. I am currently employed by the City of Renton in the Development Services
21
Division. My job title is Secretary I. I have held this position since April, 2004.
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3. Attached hereto is a true and correct copy of the Affidavit of Service by
24 Mailing that I signed on July 11, 2006, stating that I sent to the listed parties of record,
25 in a sealed envelope via the mails of the United States, a copy of the Preliminary
26 Declaration of Stacy Tucker - 1
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EXHIBIT .....:...A:....-
WARREN BARBER e-PONTES, P.S.
A TTORN'EYS ,t.T LAW
,
1 Report to the Hearing Examiner in the project known as Lowe's of Renton, Project No.
2
LUA-05-161,SA-H, SA-M, ECF,
3
EXECUTED at Renton, Washington, this 11"' day of January, 2007.
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28 Declaration of Stacy Tucker - 2
WARREN BARBER f!J fONTES, P.S.
ATTOJLI'tEYS AT LAW
ICO sount IIIICOND SllUIET • POIIT 0JftCII KQ 6Uo
RewroN. WAIIHINGI'ON..,7
PHONE (41'ii) U'i.IIII1A • PAll: '4n) lfl·S47 ..
, '
~ , ,-
CITY OF RENTON
CURRENT PLANNING DIVISION
AFFIDAVIT OF SERVIC.E BY MAlUNG
On the 11"' day of July, 2006, I deposited In the mails of the United States, a sealed envelope
containing Preliminary Report to the Hearing examiner documents. This Information was sent to:
Na.me
Mike Neer, PAClAND
Jim Manion, Lowe's HIW
Dash -80, L.P.
(Signature ofSender)~ ~
STATE OF WASHINGTON
) SS
COUNTY OF KING )
Contact
Applicant
OWner
I certify that I know or have satisfactory evidence that Stacy Tucker
nting
signed this instrument and acknowledged it to be his/herllheir free and voluntary act for the uses and
purposes mentioned in the instrument.
Dated: 7-1 \-0(.
Lowe's of Renton
LUA05-161, SA-H, SA-M, ECF
I 1
,I
PUBLIC
HEARING
city of Renton
Department of Planning I Building I Public Works
PRELIMINARY REPORT TO THE HEARING EXAMINER
A. SUMMARY AND PURPOSE OF REQUEST:
Public Hearing Date:
Project NalTlfl:
Owner::
Applicant:
Contact:
FHeNumoor:
Project Description:
Project Location:
July 18, 2006
Lowe's of Renton
Dash-80, L.P., 440 N. 1" Street, Ste. 200, San Jose, CA 95112
Jim Manion, Lowe's HIW, 1530 Faraday Ave., Ste. 140, Ca~sbad, CA 92008
Mike Near, PACLAND, 11235 SE 6'" St., Ste, 220, Bellevue, WA 98004
LUA"()5-161, SA-H, SA-M, ECF Planner: Jill K. Ding, Senior Planner
The applicant is requesting Environmental (SEPA) review, Master Plan and Site
Development Plan approvals for a Lowe's Home Improvement retail store totaling
129,342 sq ft, with a garden area totaling 26,222 sq ft and 411 parking spaces, The
site would total 9.78-acres after the approval of a proposed short plat (LUA06-080)
and is zoned Urban Center North-l (UNC-l). The property is located at 600 Garden
Ave. N at southeast corner of the imersection of Park Ave. N and Garden Ave. NE.
800 Garden Ave. N
CIty of Renton P/RIPW DeplJl1ment
LOWE'S OF RENTON
Pro"minary Rsporl to tho Hearing Examiner
LUA.cS-161, SA-H, SA-M, ECF
PUBLIC HEARtNG DATE: July 18, 2006 Pago 20f 13
B, EXHIBITS
The following exhibits are entered into the record:
Exhibit NO.1: Yellow file containing: application, proof of posting and publication, environmental
review and other documentation pertinent to this request.
Exhibit No.2: Neighborhood Map.
Exhibit NO.3: Preliminary Grading and Drainage Plan (dated 1/3112006).
Exhibit No.4: Preliminary Utilities Plan (dated 1/3112006).
Exhibit No.5: Preliminary Landscape Plan (dated 1/17/2006).
Exhibit No.6: Exterior Elevations (dated 311/2006).
Exhibit No.7: Floor Plan (dated 3/112006).
Exhibit No.8: Zoning Map, Sheet E4 west Yo (dated 211612006).
C. GENERAL INFORMA nON:
1.
2.
3.
4.
5.
6.
7.
8.
Own9r of Record: Dash-SO, L.P., 440 N. 1 st Street, Sts. 200, San Jose, CA 95112
Zoning Designation: Urban Center North - 1 (UNC-1)
Comprehensivs Plan Urban Center -North
Land Use Designation:
Existing Site Use: Vacant (abandoned Boeing parking lot)
Neighborhood Characteristics
North:
East:
South:
West:
Access:
Sile Area:
Project Dala:
Existing Building Araa:
New Building Area:
Total Building Area:
Boeing property -Urban Center North-2 (UNC-2) and Industrial-
Heavy (I-H)
Burlington Northern Railroad -Heavy Industrial (IH)
Fry's Electronics· zoned Urban Center North-1 (UNC·1)
Boeing property -zoned Urban Center North·1 (UNC-1)
Via Garden Ave. N from a joint driveway access shared with Fry's
Electronics
9.78 acres after the recording of a proposed short plat being reviewed
under a separate application (LUAO~80)
Area commants
NIA NIA
129,342 sq It store and 26,222 sq ft garden center
129,342 sq ft + 28,222 sq ft = 155,564 sq It NIA
D. HISTORICAUBACKGROUND:
Action
Zoning
Com prehensive Plan
Annexation
Land Use File No.
NlA
NIA
NIA
Ordinance No.
5100
5099
1793
Da/9
11/112004
11/1/2004
9115/1959
E. APPLICABLE SEC nONS OF THE DEVELOPMENT REGULA nONS (RMC nnE IV):
1. Chapter 2 Land Use Districts
HEX stall rpt 05-161.doc
CIty of Renton PA*'Wa.partment
LOM'S OF RENTON
Prolimlnaty RepOft to the Hearing Examiner
LUA-05-161, SA-H, SA-M. ECF
PU8UC HEARING DA TE: July 18, 2006
Section 4-2-020: Purpose and Intent of Zoning Districts
Section 4-2-070: Zoning Use Table
Section 4-2-120.E: Commercial Development Standards
2, Chapter 3 Environmental Regulations and Special Districta
Section 4-3-050: Critical Areas Regulations
3. Chapter 4 Property Development Standards
Section 4~30: Development Guidelines and Regulations -General
Section 4~70: Landscaping Regulations
Section 4~80: Parking, Loading, and Driveway Regulations
Section 44-090: Refuse and Recyclables Standards
Section 4-4-095: Screening and Storage Heightllocation Lim itations
4. Chapter 6 Streets and Utility Standards
5, Chapter 9 Procedures and Review Criteria
Section 4-9-200: Site Plan Review
6. Chapter 11 Definitions
F. APPLICABLE SECTIONS OF THE COMPREHENSIVE PLAN:
1. Land Use Element
G. DEPARTMENT ANALYSIS:
1. PROJECT DESCRIPTION/BACKGROUND
Page 3 of 13
The project site is wtthin a portion of the area zoned Urban Center North-l (UNC-l) that was created
subsequent to The Boeing Company's surplusslng of several historical parking and building areas
associated with its Lake Washington facilities. The south portion of the project site Is curren~y developed
with Fry's Bectronlcs and associated parking and landscaping improvements. The north portion of the
project site is currently vacant, but is completely paved, with lighting and drainage improvements. The
proposal would include a new retail store of approximately 129,342 sq ft, an associated garden center of
approximately 26,222 sq ft, 411 surface parking stalls, and associated infrastructure such as landscaping,
water, sewer, and storm water facilities. The site currently has access from Garden Ave N and Houser
Way. The proposed development would provide two commercial driveways onto Garden Ave N, the
southern driveway would be a joint use driveway shared with Fry's Electronics. One driveway onto Houser
Way N would also be provided.
The prOject s~e area currenHy totals 21.37 acres, however a short plat is being reviewed for the site under
a separate application (LUA06-080). The purpose of the short plat is to segregate the Lowe's site and any
associated parking improvements from the eXisting Fry's site. Once the proposed short plat is approved
and recorded, the Lowe's site would total 426,333 sq. fL or 9.78 acres in area.
The project will require removal of approximately 5,000 cu yd of asphalt (parking lot pavement).
Approximately 20,000 cu yd of onsite soil material will be regraded, and approximately 10,000 cu yd of
gravel will be imported to construct the sub-base below the proposed building and new parking lot areas.
The s~e is served by City of Renton water and sewer, which would be extended as necessary to serve the
proposed deveiopment. Storrnwater runoff from the site currenHy drains to existing catch basins on the
westem side of the site, which ultimately discharges to the public storrnwater system in Garden Ave. N.
The proposal includes construction of an onsile stormwater collection system for the parking areas that
will be filtered prior to offs~ discharge, and a rooftop runoff collection system that will bypass the water
qual~ system.
No trees, and no weUands or other environmentally sensitive areas, are located on the site. The proposal
includes perimeter and interior landscaping of street frontages and parking lots.
HEX staff rpt (J5.161.dOC
City of Renton P/8/PW Departmenl
LOWE'S OF RENTON
Preliminary Report 10 lhe Hearing Examiner
LUA-05-161, SA-HI SA-M, ECF
PUBLIC HEARING DA TE: Juty 18, 2006 Page 4 of 13
2. ENVIRONMENTAL REVIEW
Pursuant to the City of Renton's Environmental Ordinance and SEPA (RCW 43.21C, 1971 as amended),
on June 27, 2006, the Environmental Review Committee issued a Determination of Non-5ignificance,
Mitigated for the project. The DN5-M included 6 mitigation measures. A 14-day appeal period commenced
on June 30, 2006 and ended on July 14, 2006. As of the date of this staff report, no appeals of the
threshold determination were filed.
3, ERC MITIGATION MEASURES
Based on an analysis of probable impacts from the proposed proJect, the following mitigation measures
were issued for the Determination of Non-Significance -Mitigated:
1. The project shall be designed to comply with the Department of Ecology's (DOE) Erosion and
Sediment Control Requirements, outlined in Volume II of the 2001 Stormwater Management Manual.
Erosion and sediment control measures shall be installed and maintained to the satisfaction of the
representative of the Development Services Division for the duration of the project's construction.
2. The applicant shall comply with the recommendations of the geotechnical engineering report prepared
by GeoEngineers, Inc., dated January 26, 2006, regarding earthwork and soli compaction, design of
foundations, floor slabs and retaining walls, structural fill, drainage, paving, and utilities.
3. The pilings to be located along Garden Avenue N shall be augercast piles or driven steel pipe piles
that extend through the liquefiable/compressible upper alluvial deposits and bear on the lower allUVial
deposits to protect the stormwater pipe.
4. The project shall be designed to comply with the 2001 Department of Ecology Storm water
Management Manual for water quality.
5. The applicant shall pay a Transportation Mitigation Fee of $85,837.50 for the proposed 3,815 new
average daily trips that will be generated by the proposed development. Fees are subject to change
and are payable prior to the issuance of a building permit.
6. The applicant shall pay a Fire Mitigation Fee of $0.52 per square foot, for a current estimated total of
$75,420.80. Fees are subject to change and are payable prior to the issuance of building permits.
4. STAFF REVIEW COMMENTS
Representatives from varlous city departments have reviewed the application materials to Identify and
address site plan issues from the proposed development. These comments are contained in the official
file. and the essence of the comments has been incorporated into the appropriate sections of this report
and the Departmental Recommendation at the end of the report.
5. CONSISTENCY WITH MASTER PLAN APPROVAL CRITERIA
The UNC-1 zoning of the development site triggers a requirement to prepare a Master Plan per RMC 4-9-
200.A.1. to be approved prior to or concurrent with Site Plan Approval. RMC 4-9-2oo.A.1. states that ''The
purpose of the Master Plan process is to guide phased planning of development projects with multiple
buildings on a single large sHe. The Master Plan is required to demonstrate how the major elements of a
development are proposed on the site at sufficient detai to demonstrate the overall project concept. In
addition, the Master Plan must illustrate how the major project elements, combined, create an urban
environment that implements City goals. An additional purpose is to allow consideration and mHigation of
potential impacts that could result from large-scala sHe and facility developmen~ and to allow coordination
with City capital Improvement planning:
HEX staIf rpt 05-161.doc
City of RentO<l PIBIPW Deparlment
LOWE'S OF RENTON
PUBUC HEARING DATE: July 1 a 2006
Preliminary Report to tho Hearing Examiner
LUA4J5-161, SA-H, SA-M, ECF
Page 5of13
The following criteria are required to be met through the Site Plan and Master Plan Review Process,
consistent with RMC 4-9-200E.2.:
(A) The plan is consistent with a Planned Action Ordinance, if applicable.
Not applicable, there was no Planned Action Ordinance for the subject property.
(8) The plan creates a compact, urban development that includes a compatible mil( of uses that
meets the Comprehensive Plan vision and policy statements for the Urban Center North
Comprehensive Plan designation.
The proposed development would result in the construction of a 129,342 square foot retail building with a
26,222 square foot garden center and 411 parking stalls. The proposed project would implement the
Comprehensive Plan vision and Urban Center North policy statements as the project would result in the
creation of additional retail space on a currently vacant parcel and would also result in the creation of
additional jobs. See further discussion below under Conformance with the Comprehensive Plan, its
Elements and Policies.
(C) The plan provides an overall urban design concept that is internally consistent, and provides
quality development
The proposed Lowe's design provides an urban design concept that is internally consistent through the
use of modulation and articulation in the building design, landscaping, and a pedestrian connection to
Garden Avenue N. The proposed site plan also provides a pedestrian and vehicular connection to the
Fry's site, which is south of the proposed Lowe's development.
(D) The plan incorporates public and private open spaces to provide adequate areas for passive
and active racreatlon by the occupants/users of the site, and/or to protect existing natural
systams.
The proposed Lowe's site plan incorporates public and private open spaces through the provision of
pedestrian connections within the site and around the sHe within the Garden Avenue N public right-of-way.
The proposed pedestrian spaces would be landscaped wHh a combination of trees, shrubs, and
groundcover as shown on the submitted landscape plans.
(E) The plan provides viaw corridors to the shoreline area and Mt Rainier where applicable.
There are not views of any designated shorelines from the subject property. The proposed building would
not obstruct any potential views of Mt. Rainier.
(F) Public access is provided 10 water and/or shoreline areas;
Not applicable, the sHe does not abut any water or shoreline areas.
HEX stall rpt 0S-161 .doc
City of Renton PIBIPW Department
LOWE'S OF RENTON
PUBLIC HEARING DATE: July 18, 2006
PnJIiml1l3f)' Report to the Hear/ng Examlnw
LUA-05-161, SA-H, SA-M. ECF
Page 6 of 13
(G) The plan provides distinctive focal points such as public area plazas, prominent architectural
features, or other Items
The site plan provides focal points through the use of prominent architectural features that are utiized to
distinguish building entrances as well as to break up the monotony of large blank walls. In addition a
landscaped walkway is proposed through the center of the parking lot ru nnlng from the north end of the lot
to the south end of the lot where it would eventuaUy connect to the Fry's parking lot.
(H) Public andlor private streets are arranged In a layout that provides raasonable access to
property and supports the land use envisioned
Not applicable, there are no proposed streets within the sije.
(I) The plan accommodates and promotes transit, pedestrian, and other alternative modes of
transportation.
The plan accommodates potential pedestrians through the provision of a pedestrian connection from the
sidewalk that will be constructed along Garden Avenue N to the building entrance. Transit riders would be
accommodated through an existing bus stop located at the northwest corner of the property at the
intersection of Garden Avenue N and Park Avenue N.
(J) The plan conforms to the approved conceptual plan required by development agreement for
the subarea in question, If applicable.
Not applicable.
(K) The plan conforms with the Intent and the mandatory elements of the design guidelines
located In RMC .... 3-100, The Master Plan clearly identifies the urban design concept for each
district enunciated In the Urban Center North Comprehensive Plan policies.
The proposed Lowe's site plan is located outside of the districts to which the design guidelines are
applicable. The proposed site plan complies with the Urban Center North Comprehensive Plan policies;
see further discussion below under Conformance with the Comprehensive Plan. its Land Use Element &
Policies.
(L) The proposed interconnected circulation networlk must demonstrate the function and location
of required circulation elements required in RMC 4-3-100. Internal or local roads shall provide
adequate edges and buffers to parlki ng lots. A sufficient number of pedestrian-orlented streets are
designated to Implement the vision for each district In the Urban Center North Comprehensive
Plan designation.
No intemal access roads are proposed with the development. in addnion, the site is located outside of the
districts which are regulated under RMC 4-3·t 00, therefore the circulation elements of that section are not
required.
HEX sial! rpt 05-161.doc
City of Renton PIBIPW Department
DA TE: July 18, 200fj
1M) Gataways are designated consistent with the Comprehensive Plan and conceptual plans for
the gataway demonstrate the design concept for gataway treatment and Identify significant
gateway features to be provided,
Not applicable, no gateways are proposed or required for this project.
IN) The Master Plan includes a sequencing element that explains what phases of the Master Plan
will be built-out first, and In what order the phases will be built, and an estimated time frame.
The proposed site plan would not be constructed in phases; therefore a sequencing element is not
applicable,
5. CONSISTENCY WITH SITE PLAN APPROVAL CRITERIA
As per RMC 4-9-200.E, the Reviewing Official shall review and act upon sHe plans based upon
comprehensive planning considerations and the following criteria. These criteria are objectives of good
site plans to be aimed for in development within the City of Renton. However, strict compliance with any
one or more particular criterion may not be necessary or reasonable. These criteria also provide a frame
of reference for the applicant in developing a site, but are not intended to be Inflexible standards or to
discourage creativity and innovation. The site plan review criteria include, but are not limited to, the
following:
(A) CONFORMANCE WITH THE COMPREHENSIVE PLAN, ITS ELEMENTS & POLICIES
The Comprehensive Plan Land Use Map deSignation for the project property is Urban Center North. The
purpose of the UC-N is to redevelop industrial land for new office, residential, and commercial uses at a
sufficient scale to implement the Urban Centers criteria adopted In the Countywide Planning Policies. This
portion of the Urban Center is anticipated to attract large-scale redevelopment greater than that in the
Urban Center-Downtown, due to the large available land hOldings under single ownership. In addition, this
new development is expected to include a wider group of uses including remaining industrial activities,
new research and development facilities, laboratories, retail integrated into pedestrian-oriented shopping
districts, and a range of urban-scale mixed-use residential, office and commercial uses.
The following Comprehensive Plan policies are applicable to the proposal:
Land Use Element
Policy LU-272. Support uses that seNe the region, a sub-regional, or citywide market as weD as
the surrounding neighborhoods. The proposed Lowe's development would at a minimum provide
a use that would serve the surrounding neighborhood and possibly a larger citywide market.
Policy LU-282. Fully Integrate signage, bu/7ding height, bulk, setbacks, landscaping, and parking
considarations in structures and site plans across the various components of each proposed
development. The submitted master site plan and site plan materials incorporate slgnage
elements, building height, bulk, setbacks, landscaping, and parking elements. Each of these
elements will be reviewed to ensure compliance with City standards.
Policy LU-283. Require significant pedestrian e/aments in Internal site circulation plans. The
proposed development includes a landscaped pedestrian walkway through the center of the
parking lot, which would connect to the Fry's site located to the south. In addnion, a pedestrian
connection would be provided from the sidewalk on Garden Avenue N to the entrance of the
proposed Lowe's building.
HEX staff !pi O~'6'.cIoc
--
CIty of Renton PIBIPW Deportment
LOWE'S OF RENTON
PUBLIC HEARING DA TE: July 18. 2006
p,.,llm/naIy Report /0 the Hearing ExamiINK
LUA-05-161, SA-H, SA-M, ECF
Page B of 13
Policy LU-2B7, Disr;ourage parking lots between structures and street right-of-way. No parking
lots are proposed between the proposed structure and the public right-of-way.
Policy LU-30B. Support surface parking lots behind buildings, and in the center of blocks,
screened from the street by structures with landscape buffers. The proposed surface parking lot
would be located in front of the proposed building; however the lot would be located at the center
of the block and would not be located between the buDding and the public street. A landscape
plan was submitted wlth the application materials. The parking lot would be screened with
Autumn Flame Maple trees and a variety of shrub species.
(B) CONFORMANCE WITH LAND USE REGULATIONS
The subject s~e is zoned Urban Center -North 1 (UG-Nl). The UC-N zones were established to
provide an area for pedestrian-scale mixed-use development that supports the residential and
employment goals of Renton's Urban Center -North. The UC-Nl zone is intended to attract new
retail, offICe, and technology-related uses that co-exist with continued airplane manufacturing In
the short run, but provide a standard of development that stimulates further investment and
transition of uses in the longer term. Large-scale retail uses are allowed as anchors, which, when
combined with smaller pedestrian-oriented development. create a quality regional retail area.
Development Standards
Lot Coverage -The maximum building lot coverage in the UC-Nl zone is 90% of the total lot
area. The building footprint of the proposed Lowe's is 129,342 sq. ft. and the garden center is
26.222 sq. ft. for a total of 155,564 sq. ft. on the 426,333 sq. ft. s~e results in a 36.5 percent lot
coverage. The project is in compliance wnh this requirement.
Setbacks -The UC-Nl zone requires a minimum front yard and side yard along a street setback
of 0 feet and a maximum front and side yard along a street setback of 5 feet. However, the
Director of Development Services issued a Determination, which states that the maximum front
yard and side yard along street setbacks may be altered through the Site Plan Review Process
without the need for a variance, which would be consistent with maximum setback requirements
applicable in other commercial zoned within the C~ of Renton. Due to the 20 foot wide easement
located along Garden Avenue N and the 30 foot wide easement located along Park Avenue N, It
is not possible for the proposed Lowe's building to comply wnh the maximum front and side yard
along a street setback requirements. Therefore, the proposed 15 foot B inch front yard setback
and the minimum 30 foot side yard along a street setback as shown on the submitted site plan are
approved.
Landscaping -The UC-N 1 zone requ ires that all setback areas from a public street be
landscaped and that truck docking and loading areas be screened from public streets. The CIty's
parking regulations have additional landscaping requirements. The minimum amount of
landscaping required for parking lots with 100 or more stalls is 35 sq. ft. per parking space.
Where surface lots abut a public right-of-way a minimum 5-foot landscaped strip shatl be installed
between the parking lot and the public street. Street trees shall be installed within the landscape
strip at a rate of 1 tree for every 30 feet of lineal frontage. Within the parking area a minimum of 1
tree shall be planted for every 6 parking spaces provided, shrubs shall be planted at a rate of 5
per 100 sq. ft. of landscape area. ground cover shall be planted In sufficient quantities to provide
90 percent coverage wlthln the first 3 years of installation, and no more than 50 feet shall separate
a parking space from a landscape area.
The submitted conceptual landscape plan proposes to landscape atl setback areas. Along
Garden Avenue N a landscape strip is proposed, which ranges in width from 11 feet along the
surface parking lot to 15 feet where the proposed building would be constructed. Street trees are
proposed within the landscape strip at a spacing of 30 feet on center and would consist of Autumn
Rame Maple. Additional shrub and ground cover species are proposed to further vegetate the
landscape strip along Garden Avenue N and would provide screening of the building and the
surface parking lot from Garden Avenue N. A landscape strip is also proposed along Park
Avenue N and would consist largely of Austrian Black Pine and Weeping Alaskan Cedar, which
would serve to screen the proposed loading and docking area from Park Avenue N. The parking
HEX stall rpt 05-161.doc
City of Rrmton P/SIPW Deparlment
LOWE'S OF RENTON
PUBUC HEARING DA TE: July 18, 2006
Preliminary Reporl /0 the Hearing Examiner
LUA-D5-161, SA-H, SA-M ECF
Page 90' 13
lot would be landscaped wHh trees consisting of a mix of Chanticlear Flowering Pear, Columnar
Sargent Cherry, and 'Worpelsdon' American Swee\gum and a variety of shrubs and ground cover.
Staff has reviewed the submitted conceptual landscape plan. The proposed landscaping along
Park Avenue N, would adequately screen the truck docking and loading areas from Park Avenue
N, which is in compliance with the City's screening requirements for docking and loading areas.
However, staff has concerns with proposed landscaping to be installed along Garden Avenue N
due to the presence of a 72-inch stormwater discharge pipe beneath the proposed landscape
strip. Staff is unsure if the proposed landscaping would pose a threat to the stormwater pipe. In
addition, H appears that the proposed street trees have spreading low branches, which may
indicate that the species is not a suitable tree to be located adjacent to a public sidewalk.
Therefore, staff recommends as a condition of approval that the applicant provide information
regarding the proposed landscaping, which would ensure the pipe would not be damaged and that
the proposed Autumn Flame Maple is a suitable stneet tree or that a revised landscape plan be
submitted proposing landscaping that will not damage the stormwater pipe. This shall be
submitted to the Development Services Division project manager for review and approval prior to
the Issuance of a buHding permit.
Within the parking area, a total of 411 parking spaces are proposed, which would require a
minimum of 14,385 square feet of landscaping within the parking lot (35 sq. ft. x 411 spaces =
14,385 sq. Il) with 69 trees and 751 shrubs. The applicant's landscape analysis indicates that a
total of 15,013 square feet of landscaping is proposed within the parking lot with a total of n
trees, which comp/ies with the minimum landscaping and tree requirements. Staffs review of the
landscape plan indicated that approximately 641 shrubs are proposed within the parking area,
which is less than the minimum 751 required. Therefore, staff recommends as a condition of
approval that a revised landscape plan be submitted with the buHding permit application showing
the minimum 751 shrubs required within the parking area.
All landscaped areas must be fully irrigated. At the time of building permH submittal a detailed
landscape plan with species identified must be submitted along with an irrigation plan.
Building Heighl-The UC-Nl zone allows a maximum building height of 10 stories along primary
and secondary arterials. The proposed building would have a height of 1 story with a maximum
height of 46 feet, which is well below the maximum permitted and is in compliance wHh this
development standard. The various secUons of the building are at varied heights which helps
reduce the bulk and scale of the structure.
Parking, Loading, and Driveway Regulations -The parking regulations require a specific number
of off-street parking stalls be provided based on the amount of square footage dedicated to
certain uses. The proposed retail/big box store would be permitted a maximum of 0.4 spaces per
100 square feet of net floor area. The proposed building would include approximately 133,002
square feet of net floor area and would therefore be permitted a maximum of 532 parking spaces
(133,002 net sq. ft. /100 sq, ft. x 0.4 spaces = 532 spaces). The proposed site plan indicates that
at total of 411 parking spaces would be provided, which is less than the maximum permitted and
is therefore complies with the parking requirements.
Of the 411 parking spaces proposed, a minimum of 9 of those are required to comply with the
Americans with DisabAities Act (ADA) reqUirements. The proposed site plan indicates that 10 of
the 411 parking spaces provided would be ADA compliant, which complies with this requirement.
The minimum parking stall dimensions required in the UC-Nl zone for standard stalls is 9 feet in
width by 19 feet in length and for compact stalls is 6 Y.. feet in width by 16 feet in length. Compact
stalls shall not account for more than 30 percent of the total number of parking spaces. The
proposed standard spaces comply with the minimum width required of 9 feet; however the depth
of the spaces ranges from 18 feet to 20 feet. The proposed compact stalls appear to comply with
the dimensional requirements. A total of 27 compact stalls or 7 percent would be provided (27
compact stalls I 411 total stalls = 7 percent), which is less than the maximum of 30 percent
permitted. Staff recommends as a condition of approval that either a revised site pian be
submitted showing the correct parking stall dimensions for the standard spaces or a parking
modification shall be requested addressing the criteria outlined under RMC 4-9-250D. The
HEX staff rpt 05-161.doo
City of Renton P/BIPW Department
LOWE'S OF RENTON
PUBUC HEARING DATE: July 18, 2005
Preliminary Report /0 the Hearing Examiner
LUA.o5-161, SA-H, SA-M, ECF
Page 10 of 13
applicant shall submH either the revised site pian or the modification request to the Development
Services Division project manager for review and approval with the building permit application.
Two driveways are proposed along the Garden Avenue N street frontage and one driveway is
proposed to aocess off of Houser Way N. According to code, the maximum number of driveways
for commercial uses is two per 330 feet of street frontage for property under unifted ownership.
The northern most driveway off of Houser Way N is proposed to be 30 feet in width and would
provide access to !he docking and loading area. The northern driveway off of Garden Avenue N
is proposed to be 36 feet wide and the southern driveway off of Garden Avenue N is proposed to
be 35 feet wide, both driveways off of Garden Avenue N would provide access to the Lowe's
parking lot. The maximum driveway width permitted for a commercial driveway is 30 feel Where
practical difficulties exist in the compliance with this standard, the applicant may ask the
Development Services Division for a modification of these requirements per the criteria ouijlned
under RMC 4-9-2500. Therefore, staff recommends as a condHion of approval that eHher a
revised site plan be submitted showing all of the proposed driveways at a maximum width of 30
feet, or a modification to the maximum driveway standards shall be requested. The revised site
plan or modification request shall be submitted to the Development Services Division Project
Manager for review and approval with the building perm" application.
(C) MITIGATION OF IMPACTS TO SURROUNDING PROPERTIES ANO USE
Commercial and Industrially zoned properties surround the subject property. It is not anticipated
that !he proposed Lowe's retail store would adversely impact the surrounding properties. Staff
anticipates the project to add value to the site and further enhance the retail opportunitieS in the
area. The additional retail uses would potentially increase the amount of activity in the area.
Construction activities would result in short-term noise, dust and traffic Impacts on surrounding
properties limited to the project's construction. The applicant has submitted a Construction
MItigation Plan with the land use application outlining measures to be employed for minimizing
dust, noise and traffic impacts during construction. The Construction Mitigation Pian would also be
submitted prior to the Issuance of any building or construction perm" to verify the truck/haUl routes
and note any other prOVisions related to construction activities.
(0) MITIGATION OF IMPACTS OF THE PROPOSED SITE PLAN TO THE SITE
The scale, height and bulk of the proposed building is appropriate for the site and is anticipated to
be architecturally compatible with future development in the vicinity. The site is 9.78 acres and
the proposed building would have a building lot coverage of less than 36.5% of the site. In
addition, landscaping is proposed w"hin the parking area and around the perimeter of the site
along public street frontages.
The scale of the building will be broken up through the use of vertical and horizontal modulation.
The building height ranges from a minimum of 26 feet to a maximum of 46 feet in height.
According to the building elevations, the building materials would consist primarny of split face
concrete masonry units with some smooth face concrete masonry unit accents. Customer entry
to the store would be via two entrances located along the southern fa9Bde of the building. In
addition, an entrance to the indoor lumber yard is also located on the southern building fa9Bde. A
26,222 square foot garden center is proposed to the southeast of the proposed buAding.
The heavy trucks would be enter the site via a driveway access off of Houser Way N, which would
lead them to the docking and loading area located on the north side of the proposed building. The
refuse area would also be located on the north side of the building, which would be contained
behind a concrete masonry unit wall. The applicant requested a modification from the refuse area
requirements. The City's refuse and recyclable standards would require a minimum of 10 square
feet per 1,000 square feet of building gross floor area for a refuse area and a minimum of 5
square feet per 1,000 square feet of recyclable area. Based on a total gross floor area of 129,342
square feet for the proposed building a minimum of 1,293 square feet would be required for a
refuse area and a minimum of 647 square feet would be required for a recyclable area. The
applicant has submitted a modification request to reduce the required refuse area down to a
minimum of 684 square feet. The modification requested was grl!nted July 11, 2006.
HEX staff!pt 05-161.doc
· City of RmJton PIBII'W Department
LOwe'S OF RENTON
PUBLIC HEARING DATE: July 18.2006
Pt8~minary Repof! to the Hearing Examiner
LUA-05-181, SA..", SA.M, EeF
Page 11 of 13
Potential erosion impacts that could occur during project construction would be adequately
mitigated by City Code requirements for approval of a Temporary Erosion and Sedimentation
Control Plan (TESCP) pursuant to the King County Surface Water Design Manual (KCSWDM)
and a Construction Mijigation Plan prior to issuance of Construction Permijs. In addijion, the
City's Environmental Review Committee imposed a mitigation measure on the project requiring
compliance with the 2001 Department of Ecology Stormwater Management Manual for erosion
and sediment control.
(E) CONSERVATION OF AREA-WIDE PROPERTY VALUES
The proposal is expected to increase property values in the vicinity of the sHe. The development
of the site provides improvements to infrastructure, landscaping and lighting and additional
employment opportunities.
(F) SAFETY AND EFFICIENCY OF VEHICLE AND PEDESTRIAN CIRCULATION
The applicant provided a Traffic Impact Analysis prepared by Kittelson & AsSOCiates, Inc., dated
February 27, 2006. The proposed development is anticipated to generate additional traffic on the
Cijys street system. Approximately 3,815 new average daily trips are estimated to be generated
by the proposed development. including 320 p.m. peak hour trips. To mitigate for the increased
traffic anticipated on the City's street system, the City's Environmental Review Committee
imposed a mijigation measure on the project requiring the payment of a Traffic Mitigation Fee in
the amount of $85,834.50 prior to the issuance of a building permit.
Primary access to the site is proposed via two driveway entrances off of Garden Avenue NE, the
southern driveway access would be a shared driveway access wijh Fry's located to the south of
the subject site. Both of the proposed driveways are full access drivewaYS. A secondary access
for vehide access to the truck docking and loading area is proposed off of House Way N. It
appears that vehicles would be permitted to circulate safely throughout the subject property.
An elevated concrete pedestrian walkway is proposed internally through the center of the parking
lot and would extend from the main Lowe's entrance to the south to the Fry's parking lot. An
additional pedestrian connection is proposed to connect the sidewalk along Garden Avenue N to
the Lowe's entrance.
It appears that there would be adequate separation between pedestrians and vehicles as well as a
distinct traffIc route for autos versus trucks thus providing safety and effICiency.
Construction truck hauling hours are limited to between 8:30 a.m. to 3:30 p.m. under the
Development Guidelines Ordinance in order to avoid conflicts with peak hour traffic. The Traffic
Planning Section will review construction-related impacts prior to issuing final construction
permits.
(G) PROVISION OF ADEQUATE LIGHT AND AIR
The proposed building is designed appropriately to allow adequate light and air circulation to the
building and the site. The design of the building will not result In excessive shading of the
property. In addition, there is ample area surrounding the buIlding to provide for normal airflow.
Exterior onsHe lighting, including security and parking lot lighting, would be regulated by code.
Compliance with this code (RMC 4-4-075) ensures that all buIlding lights are directed onto the
building or the ground and can not trespass beyond the property lines. According to code, parking
lot lighting fixtures are to be non-glare and mounted no more than 25 feet above the ground. This
Is to help minimize the impact onto adjacent properties. Staff does not anticipate that exterior
lighting would become an issue due to the siting of the building provided code requirements are
met. A lighting plan was not submitted with the site plan application, therefore staff recommends
as a condition of approval that a lighting plan be submitted with the building permit application for
review and approval by the Development Services Division project manager.
HEX staff rpl O&-161.doc
· . City of Renton PIBIPW Dopatlment
LOWE'S OF RENrON
PUBLIC HEARING DATE: July 18, 2006
Preliminary R8pOI! to the Hearing Examiner
LUA-65-161, SA-H, SA-Af: ECF
(H) MITIGATION OF NOISE, ODORS AND OTHER HARMFUL OR UNHEALTHY CONDITIONS
It is anticipated that the most significant noise, odor and other potentially harmful impacts would
occur during the construction phase of the project. The applicant has submitted a Construction
Mnigation Plan that provides measures to reduce construction impacts such as noise, control of
dust, traffic controls, etc.
The proposed development is not anticipated to generate any harmful or unhealthy condKions.
There would be noise impacts of increased traffic and activity that are normally associated with an
office development that has truck traffic.
(I) AVAILABILITY OF PUBLIC SERVICES AND FACILITIES. TO ACCOMMODATE THE
PROPOSED USE
Fire Department and Police staff have indicated existing facilijies are adequate to accommodate
the subject proposal, subject to the applicanfs payment of the necessary impact fees. As
imposed by the ERC, the applicant will be required to pay the Fire Mitigation fee prior to the
issuance of building permits.
A Preliminary Storm Drainage Analysis prepared by PacLand dated December 14, 2005 was
submitted with the project application. According to the report, the existing surface water runoff
sheet flows across the property from the east into onsHe catch basins on the western side of the
property, where it is then conveyed offsite through a 24 Inch pipe that outfalls into the 72 inch
public storm system in Garden Avenue N. The proposed method of drainage control is to collect
the onsHe stormwater runoff from the paved surfaces into catch basins and underground storm
drainage pipes. The water will then be roll\ed to two separate water quality compost stormwater
filters for water quality treatment prior to discharging into the existing 72 inch stormwater
conveyance pipe located in Garden Avenue N. The stormwater runoff from the building rooftop is
collected and transported at the rear of the building and will bypass the water quality system and
be discharged into the existing 72 inch stormwater conveyance pipe located in Garden Avenue N.
Staff from the City's Plan Review Section have reviewed the report and note that the report
addresses the requirements of the 1990 King County Surface Water Design Manual. The
Environmental Review Committee imposed a mitigation measure requiring the project to comply
with the 2001 Department of Ecology Stormwater Management Manual for water quality
improvements.
Utilities are required to be installed and extended as necessary to the building by the applicant as
required by City code.
(J) PREVENTION OF NEIGHBORHOOD DETERIORATION AND BLIGHT
The proposal would result in the development with coordinated site improvements including
landscaping, parking, signage and lighting. It is antiCipated that the proposed Lowe's retail building
would contribute to the surrounding properties by developing a vacant site and providing
investment in the area. No deterioration or blight is expected to occur as a result of this proposal.
H. RECOMMENDATION:
Staff recommends approval of the Lowe's of Renton, Project File No. LUA-05-161, SA-H, SA-M, ECF
subject to the following conditions:
1. Information shall be provided regarding the proposed landscaping within the 20-foot stormwater
easement to the east of Garden Avenue N that would ensure the existing stormwater pipe would
not be damaged and that the proposed Autumn Flame Maple is a suitable street tree. Or, a
revised landscape plan shall be submitted proposing appropriate landscaping that will not damage
the stormwater pipe. This shall be submitted to the Development Services Division project
manager for review and approval prior to the Issuance of a building permh.
2. A revised landscape plan shall be submitted with the building permit application showing the
minimum 751 shrubs required within the parking area. The revised landscape plan shall be
submitted to the Development Services Division project manager for review and approval.
HEX _ rpl 05-161.doe
D~~~mnP~~M
LOWFS OF RENTON
PUBUC HEARING DATE: Ju~ 18, 2006
PrelIminary Report to the Hearing Examiner
LUA.(J5-161, SA·H, SA .... , ECF
Page 13~13
3. A revised stte plan shall be submitted showing all of the proposed driveways at a maximum width
of 3{) feet. or a modification to the maximum driveway standards shall be requested. The revised
s~e plan or modification request shall be submitted to the Development Services Division Project
Manager for review and approval with the building permtt application.
4. Either a revised site plan shall be submitted showing the correct parking stall dimensions for the
standard spaces in the UC-N1 zone or a parking modification shall be requested addressing the
criteria outtined under RMC 4-9-2500 The applicant shall submH either the revised site plan or
the modification request to the Development Services Division project manager for review and
approval with the building penmi! application.
5. A lighting plan shall be submitted with the building permtt application for review and approval by
the Development Services Division project manager.
EXPIRATION PERIODS:
Site Plan Approvals (SA): Two (2) yea ... from the final approval date.
HEX slaff rpt 05-161.doc
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D"VELOPMEt>lT PLANNiNG
-CITY OF REWiON
AUG 0 S 2006
" ;;
~FTHE HEARING EXAMINER a~. ..,; GjtfY OF RENToN H":'"
Ji.m Manion •
Lowe'sIDW
, 1530 Faraday Ave" Ste. !<I~{
...•. Carlsbad, CA 92008 .
Dash-80, L.P.
440 N 1" Street, Ste. 200
San Jose, CA 95112,
· MikeNeer
PACL4ND "' .....•
· ll235 SE 6fu st" Ste.220 .
Bellevue, W A 9&g04
Lowe's of Renton .
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File No.: LUA 05-161, SA-H, SA-M, EcF
800 Garden Avenue North .
SUMMARY OF REQUEST: Applicant requested Master Plan, Site Plan approval, and
Environmental Review, for a Lowe's Home Improvement rc;tail
store, garden area and parking spaces.
SUMMARY OF ACTION:
DEVELOPMENT SERVICES REPORT:
PUBLIC HEARING:
DeVelopment ServicesRecommendation: Approve with
conditions ..
· The Development Services Report was received by the
Examiner on July lJ, 2006. .
After reviewing the Development Services Report, examining
available infonnation on file with the application, field
checking the property and surrounding area; the Examiner
. . conducted a public hearing on the subjleCtas follows:
, " j ." ,,< ' -, • ".
MINUTES
The following minUtes are a summary of the JulY 18, 2006 hearuig.
{he l~gal record is reco.rded,o". CD.."
, , " ,.' .. ~ ,:~, , . " - -, ,'-" , ,;~, . . ,,,.
The hearingopenl'd on ruesday,)ulyljl,.!20R6;.at 9:02 a.m. in the council Chambtis <)Q \pe seventh tlocir.ofthe
Renton City :H!tii{;Il~es~'wi~l1ihgto~ti1Y ~~e aiTmnedby.ilil' Ex~er. " •. \: . '. .....," '. :,
The following exhibits were ;;~ed int~"tl,erecord:
EXHIBIT -..;.l?_ I
Lowe's of Renton
fil(l J:'l0,:WA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 2
i~'.r·,",h':;".i',;/,1 :-.~, .C,_,,','
Exhibit No.1: Yellow file containing the ongmal
application, proof of posting, proof of publication and
'. ;--
, <~: ,;';"';;CM .•
. Exhioit No:'2: Neighborhood Map
other documentation pertinent to this request "".c.",'"
Exhibit No.3: Preliminary Grading and Drainage . Exhibit No.4: Preliminary Utilities Plan> " -, ~ { .,<' , .
Plan .. '. :
Exhibit No.5: Pre Landscape'Plan . Exhibit No.6: Exterior Elevations
, ),1:--" , .
Exhibit No.7: Floor Plan Exhibit No.8: Zoning Map
.
The hearing opened with a presentation of the siaff report by Jill Ding, Senior Planner, Development Services,
City of Renton, lOSS S Grady Way, Renton, Washington 980~5. The subject property is located wesl?fl1puser
Way N and east of Garden Avenue N, it is north ofNorth,Sth Street. There is a short plat being processli(! 'du'tbe
subject property and so Lowe's is actl!1\l!y directly north of th~ Fry's site. The property is located within the
Urban Center North -I (UC-Nll zoning desiggation and comprehensive plan designation. The total size of the
subject property is approximately 21 acreS,'however, after the short plat the subject site would be approximately
9.8 acres in area. The proposal is to construct a new 129,342 square foot Lowe's building with a Garden Center
of approximately 26, 220 square feet and 411' surface parking stalls.
-; ':', " ,"
The Environmental Review Committee issued a Determination of Non-Significance -Mitigated with 6
mitigation measures. No appeals weiefiled,' ,. .
Masterpjan Ciiteria: ~ '" .
The UC-Nl zoning requires a MaSter Plan approval priotto approval of the Site Plan, The plan would
implement the vision of the UCN-l comprehensive plan designation with the construction of a Lowe's retail
building. The design ism urban concept arid' consistent within the site with modulation and articulation of
building design. Landscaping would be provided throughout'the site in the parking area and around the
perimeter. A pedestrian connection has been provided to Garden Avenue and through the .center of the parking
lot to the Fry's site to the south. The site further provides focal points through ine use of prominent ilrc1litectUrai
features to show entrances and to break up the monotony oflarge blank walls. The proposal is consistent with
the Master Plan criteria.
Site Plan Criteria:
The site is consistent with the UC-NI larid use elements imd policies in the plan. The project is in compliance
with the lot coverage requirements for this zoning designation. Due to a 20-foot wide easement along Garden
Avenue N and 30-foot wide easement along Park Avenue N, it is not possible for Lowe's to comply with the
maximum front and side yard along street setback requirements. Therefore, the proposed IS foot 8 inch front
yard setback and the minimum 30-foot side yard along a street setback are approved .
. -I , , " , ~
The UC-NI zone requires that all setback areas from a public stre~'fbe landscaped and that truck docking and
loading areas,be scre~ed from public streets. Parking lots with 109 01: more stalls requires 35square feet
landscapmg per pm-king space. Street trees would be instaIl"ll' Withu{~eiiimdscap'~s1ii.p 'at a ia~, of I~",for,
every 30 feet oflineal frontage along asti-t¢i: One tree for eveij'siX'jla¥mg Spaces'is(a'tSii tequii'ediij1:hO '" "
parking area ands!irubs at the rate of five per 100 square feet andgro~dc\>ver Ill?eds to .have a 90% coverage
-gfter tl1ree years. . .;:'~,\ .. l»"",.'\ ··1;~?-t·.t!<:.',·<':'." ~-"!;
Lowe's of Renton
\ I ,
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 3
TIier~ is\i72-irich'st6i!nwaterrui;c1ii/ig'e pli>e'beneath thephjp6sedl1mdScape·strip.· 'Th~faie' ilk .applicant'!'.;
Sb&uJd proVldeinfitrri1;ition regiirdiltg tlle'landScaping which woUld enSlO"e'th~'pipewoiiId\n~rbeaafuaged aii,r
thaeili"'!lfOp'6~e':ltre,,;icare'suitltble'&treet.tr~sot a revised landScapeplari proPosmglanascaping thatWilliiot . damiire,ih'e stotmwatelpipe~' ""'~-"~" ;~ 'J~;" ~f~r -, -" ·~i':',<: ,~,:·,·'t!-"1 "'H~
The proposed building would have a height of I story with a lllllXi)num height of 46 feet, which is wellbelow
the riiaXiroum p~rt~a iUld iSmc6rijPiiaiice With thisdevelopmenfStaiidar<L 'TheViiri6U:sisecti~s 6fthe , ..
building'areafvmoo'wignts,wliich helps''redoce thebIilk and'i;cale.(,fthe's!nJcture. _,I"" ,.; .: •• :,.
The proposed site plan i~dicates that a total of 411 parking stalls would heprovided and that complies witbthe
parking requirements.' Irithe UC"Nl-zone parking stalls are required tomeisure 9'feet in Wialn by i'9 feetni'"
length for standard stalls and 8.5 feet in width by 16 feet in length;'fm\;offi'patt stalls; Sofue'stiills'lri'ehelow the
19-foot requirement, however they are along the walkway with no landscaping so they would he permitted the
2-foot overhang in that location. -,....... .::.ji".~J;/.·>f~' \'.': ;.{.I.y·,ur .:,;::~~)., ....
Two driveways are proposed a16ngthe Garden Avenue N streetftonlilgeand'cine' driveway to, aCcess' off of
Houser Way N. The northern driveway off of Garden Avenue N is proposed to be 35 feet wide and thesouthern
driveway off of Garden Avenue N is proposed to be 35 feet wide, both driveways off of Garden Aveline'N'" .
woulc\prpyi4e access to $~ ~~~'sparklng \~t . . :;.)1'." .. ,
It is not anticipated that the proposed Lowe's retail store would adversely impact the surroliriailig ptopdties.
The additional1:etail uses woul.d po~tially igqease the amount of llctiyity ip the area: Tile scale, height and
bulk of the proposed 15iiildmg aTe ~pprcipriate for the site and are ilriticipaied to be architectUrally compatible
• _,' ,'_ ·c, ,". __ ' 'i-" __ ,' .:,:' " "'. ,' .. ", ' ,0,\ ";;, . ' , ' --. "
with future development in the vicinity. The applicant requested a mOdification from the refuse area
requirements,. they will be usi1jg trash SOPl/?,actors therefore, that modification ~asgraIJ,ted o.n July 11, 2006.
The building has been designed to, allow for adequste light and ail-circ\IJation thr~ugh the site. Exierieronsite
lighting, including security and park41g1ighting is regulated by the Citr's Code, There Should be no, problems
with any lighting, however, a lighting plan should be submitted with the building permit application.
Police and Fire Departments have indicated existing facilities are adequate to accOnrinodate the proposal subject
to the payment of a Fire Mitigation fee prior tofue issuance of building permits,
A StormDrainagereport w'\§Sl!brnjtted and it has been reviewed andfolllld to be in compliance with the 1990
King CoUnty Surface WaIerDe~ilii!'Mlinual. However, the ERC liasimjiosed a mitigilticin measwe reqUiring the
project to comply with the 2001 Department of Ecology Stormwatbr Management Mimual for water quality
• " "~!'''' ' .' '-''-'' .".\', . ','~< " ,. . -' ':' rrnprevements.
Mike Neer, PACLAND, 11235 SE 6"' Street, Ste. 220, Bellevue, W A' ~~004 Stated that he is an' <!ngfurer with
P ACLANP and. site deV;~!llpment f~n~u,I~tfophis proj ect. The cpz:re~t l!preage for tl!e site is 9.79:
Regarding the building setback, they would like to make it an even 15 feet rather than 15 feet 8 inches. With
refc.ret1ce.tO, t.%' lan<jsQlI:pip~ 3lJ~1r\'I;~ il)at they are planning tQ~,e,",$eyp.~ hl\.Y~.!I '\IIl9~9~R~ expqt?n.~(aff and
the¥,#e williiig to.W(lr~Wi!!i ,tl!e City Iin-the ilPl'fopriaie tree~ t!1~e'iiit1J.a!Jq,9.!!ti.Q'n:, ., . c..'" '. . _ •... '.
" " , . , ,. '" • ',,"., ,'. ,-": _ ~' ' .: . i."_' .' ." "",~,.~. '.".'" '7 '<, _ '""',
The shared driveway. betwben ):,owe'~' a¥dFiY"s ~ll b~'shared eqrniljy~¥Mtli ~b~~1'~ ~btti~I'deS will need
an ell1l9II,\ept fm,: ~).Qip .. t,~.S,.91;~.~S ... I:!.Q1!;t~i4.~. '''!i)}be 35 feet or 3~ f~~t, w ... JJ.i:~he. ' .. '. yc.r.~tli .. ,.,f.'f.·.ll.i~.f,.~.:i. fr.1i.f.~J$S t,q.;
HOuSerWay is 20-feei wideanawi!l he solely lOr delivery triickiiccess,::' . '.. ..... ',. ',.'.. ""':,
~,,~, '. .' -'-, ;"." ' " :.-
,
Lowe's of Renton , \. _./
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 4
Laura Orlich,}J!ln ,qt AvenUl: SE, Sffi.~25, J3othell, W A 98q2;lstl!te4 .t!}lH,sM wasapr.oj""j,/!l'c!Jjteqt, 'Yi.Qli
SSOE. ;rIiet;!oorp~fQrthis~js,ac!lstq~~sign with devi~W>ll§lf9mlhl;4:ypica)l!!~9w;JQ~,4>~,,:·s.J)~,\
Garden cen~r i~ typically all1ng(he skle of the building as oppo~·tel COI!l!JlM'l!t m,.file fr9n~ of filek\,!i;J\ling~
There will also be larger general contractor parking spaces in front for the larger vern,cles, that,@~ 19i1,oa<J;,,,_ materials. ' , ..,. ,. . ,
Ka;';'~'~ttrick, .~al\lP'1lent Services' ~~,:\l¥tt regarding tl1I' 'jre~s . .md ~~~ment, ~,>.y;ter ~;;W~ijs, .'
amenable to talking about the trees .or maybe using planters of so~ sort,· ,It.isJUlit a matter, ofk:eeping tl\e
integrity of the pipe.
-;"
TheExaminerc,)!!,ed for Jiniher.\estP;t\lDY re8'¥dicg this project. There was no .one, cis.: wishing tospealc,;nd
no furth~ co~tsJ;t:om staff 1li\<,htllilri11J;!cl~sedat 9:52 am. . , .
"" it:' ~ > .:,-\~. ' -,,' -·'i.I,; 'I' -
FINDINGS, CONCLUSIONS & RECOMMENDATION
Having reviewed the record in this1lll!tter, the Examiner no)" makes and enters thefoUowing:
F1NDINGS:
1.
2.
3.
4.
5.
6.
7.
9.
10.
The applicant, Jim Manion representing Lowe's Home Improvement, fiied'a request f{)r a Masier PIan
and Site PIan. . i' . -. '.,
The yello;wftle containing theslflff r"P,f'J;!, the State EnViionwe~t.alPRli~Y ~ct<SEPA) doc&entation
and other pertinent ma~als \vasenter¥ into the recoroas EXhibit #1. ' : ,. " ,
, , . -_.,' ,,' .. i
The Environmental ReView Corntnlttee (ERC), the City's resp~llsibl~ offidial' issued Ii Determination of
Non-~ignificance -Miligated (DNS-M).
The subject prop9sal :.vas reviewed by all departments with ali interest in the matter.
The su!>ject site is located at 800 Gllrden Avenue North. The subject site is immediately south of North
Park [lri",,;: and hounded on the east by Houser Way North. Fry's Electronics shares the south end of the
block. ' , '. '
The map element afthe Compie]:iensive Plan designates the area ,in whjch the su1;>ject site is located as
suitable for the development of urban uses under the "Urban Center North;' desiguation, but does not
mandate such de';~\opment without contiideration of other policies of the Plfih. ' -
The subject site is currently zoned UC-Nl (Urban Center North -I).
The subject site was 8im.exed to the City with the adoption of Ordicance 1793 enacted in September '
1959.
. ','.,'", ."_, . '_: ,_ d "_' '-,'.' .
The subject site now cpn~ist!l oft)1~j:>rop"sed Lowe's location as well as th~. qgstiltll Fry's l,09~tion "¥~
is approximately 21.37 acres in-SIze: Ashort plat is being reviewed and if approve'(!' would result in the
J;-o~e:sparcel b~ga.pPl'9xi!IJlltely 9,,!9acres of 426,333 square feet.
. , - ---,.--_ -~;,' , . ;'r l' --'.,:,,;:': ,., -:.'.1' -"~': ~ ,,', .,,; , ,-.' , _ -, <' i,;,
~. LOwe's'ofRenton
File No.: LUA~05~161, SA~H, SA~M, ECF
August 8, 2006
PageS
1 I. The applicant propo~eslliiilelopmgT5 5;S64 square feet'brretarNmd'garden'center spiice."1'!ie main
store would be 129,342 S9uare feet and the garden ~enterwould be26,222 square feet. Associated
p¥king for custonier's'WOti!dipfu\ii&'4'l'1' sUrface par!dfig'sl'iihs...' ..', ;,; """,.;.: ! .
12.1'Iie·pri>posed'mam'Guildi!lg~Ube-alihbstsquareandg~IYfulieup1:heWidth oftbe north portion
of'tjl'e approxiimiteIy9l~'i>arc~l:' '~'gardeD center WiiJ~'loblited alonglJie eJistem edge of the lot
irletgm~ lviththe'Southe-asf'¢oinii oftll'e'mainbUildirig. 'T'l:!l;"Pp1ream~i:li\jated that this is a new,
customtloor plan highJightiltg'i}ie'~center. The st(ire's#o'eD\Tiilic~Will be atthe comer where
the garden center meel$ tQe ,~tore~~'d'lilohg th." south' f$alki'ektof!h;;g¥aeil center:·
, ", t,f;',';' ;~:;\d~',~'.'/,!;>-'t.'"'· :~, i' ;;~:-:~'i~ ~,~ :~~ ";1-',_!t}":.·~\A
13. The zone permits 90%'lot cbv6ii'g6"iml'l'a ten.st6rybuii1lli!g::~~pp1iCiihtpfuposes approximately
36.5 percent lot coverage and.a one.story; albeit, 46 fooffull bUUamg:'i'he lo'iding dock for trucks
would be along the riiirtli~ide ot"the'huiJding near the eiistemi;(inlcl wbile~.'stkging area would be
locatee:! along !l1~ north sige at the. 'Yestern corner of thebiiildlng, '%ezorie'a!§'o requites a minimum
front yardaffd'si~~yardlilooga' streeitobe zero feet or a rna~lim6rfive'fe~t. TheD1rector of
DeveiopmenfSerVicesissriedadeterihi.iiittion allowmg lar-ger'setbac,kswithout a variance. A 20·foot
wide easement exists along Garden (west) and a 30"foof WidCeasemenfaloI1g Park (north) for utilities,
which restric~ whatlIl"Y 1:Ie 9~nstructedwithin the easements. The applicant ha~proposed a 15 foot 8
inch (reviSi:dtd lS'feetatthe ne'iliing)'front yard setblicklilong BatIi6t'and~'3(}''foot side yard along
Park. Botbfrontages would be landscaped and the loading dock at the north end of the building will be
screened. ,I'· ,-:;,~, ',-,~,~'-':',::\i'_',<' ," . -'_.'7 ".-"-'1;"'-, : ;,;,;::",_(
14.
, k. ~ , _ 1 ~. '·'.t," ":"'-; l' '
The landscaping WilhajtgeTr()mappromatelyll feet deep to15feetdeepnearer the building. Staff
raised concerTI about the nature Of the 'proposed landscapiiig·';cljiicentor oVb-tIie easement areas. There
is a potential for roots t() disrupt utility lines located in the easemeritS'andtlter~was also a concern that
low branches could interrere 'With' 'sidewalk usage. Staff wrll want to review 'the proposed materials.
The parking lot landscaping requires 35 square feet for each parking stalfor a llrinimum of 14,385
square feet oflandscaping aiJ.dthe applicant has proposed 15,013 square feet with 77 trees and
supplemental shrubs. Shrubs 'must account for 751 and the applicant provided 641.
15. The applicant would be entitled to develop a maximum of 532 parking spaces 'but has proposed 41 I,
which is penniUed. The stalls will have to meet City standards for dimel1sions and allotment of regular,
compact and ADA compliani stalls.
-"1
17. There will be two driveways along Garden with the south drivewaybeirigshired with Fry's. There will
be a driveway along Houser to the .east for access to the truck loading area along Park. The driveways
will have to meet City standards:' " .. ", ,. .' . .. ...
18. The deve1opriient~nihdTe$e t:raff1c approximittely3,g15 newaveiage dIrlly trips with approximately
:?2,0 peak ho\'T tJjp,s. ',,'" ",. ,..,.
" .-.--"': .... ;' ~.,:.-.-;'.:'. ,'~r'~3;: ,.ii;_'A,"'--.i,
19. The ,al'P!icaiit 'Wil!he m.,~fingthpt9'~',k.ing c()tintYs~e Wat~H~esrgh1l$lial requirements and
the20ot, Pe~em"6I~fii(jgySfutihwaterMariage~t'Ma\i\iaJ r6r:ef&:si<iu'%mtrol standards.
',' ,', '.;'-"'-'~:;,.! ~ .,' .~,.;,,~'-' '", ;i't,N; .. ~,'-~Q,_~·~ \"";~ _ .,. ,;' ,-·.:·;·-.,,~:;-ll .<in \ ',<:;;";<;'i,': ~·t£f\r
CONCI;USIONS: ',,';
':w
i
Lowe's of Renton
File No.: LUA-05-I6I, SA-H, SA-M, ECF
August 8, 2006
Page 6
.0.". ' . ,~~,,~ ~<"'_ _ n::.rt",l:~~.:l--~'dr,;.,,, :~r;f·,,;".
1. General Review Criteria [pr bglh MasterPlanaI}ilSi,te.PJi'!li~"""·
"\ ; ....
II· ..•.•. Confoq:na!l\:\1 wit!'1 ,t/le,pomprehensive P)(I11, JI$ .~l~W. g~,pbjectjv~,l\Dd
'P9lieie~" ji). 4~~mJining compliance 1Yi18 t/le'~1l1Pl'eh~iv;e Plan, c9rfo1')1llUlce
' .. tQ:1h!:.(\1:>j~i'!ives ,an,g poIicies9f the st*ificIil£ldJ!Se 4~jgI:lllti9Its)Ja)1 kgiven
>'-' . • ,CP~!~.tj911 <;i;v~ ci,ty,jvide objectives ~!!.R\\l.i\,~~~j ", '
b., '. .~t:l1!~~ce ,witP ~~~ng land~e rf8J!l~1j,sIlSL;, .. ' .•.
Mitigation of impacts to surrounding properties and uses; c.
d.
e.' ..
f ..
g.
h.
i.
j,
. M,!ti~~ti~ll()f jInPa~!~\lf the .proP\lsed site,p!W'toth~ s*;
.C;:ong"",a!i<?ll·ofarea·wide prOperty"'llues;. :.' " . S~(~iy ~4 ~ffi~il"'cyof vehicle and p~ru;~trian circlliation;.
Provisionof ad!;qNl'telight andair; . '.',. , .' .•.. .... ," .
M*gation of J]oj~e, odors and other harmftJl or unheaIthy.conflitiqns;""
AVaiJaj1ililY ofpllblic services and facilities to, accormnodate the proP\lsed use;. and
Pre'{.ention .of n,eighborhood deterioration and blight.
, 2. Additional ~p~iaI)i.eyiew Criteria for COR, VC,NI, anil U:C;:,1'0<2 zOnesbnly: .
a, Th~ plan is consistent with a Planned Acti~n Ordinance,lfapplicable; ....... , .
b. The plan creates a compact, urban development that includes a compatible mix of uses
.,thatIgeets the.Comprehensive Plan vis(Ql1anfl.P\llipy.statemeJ]ts for the .
. CommerpiallOfllcelResidential or.UrqanCe.n~ North Comprehensive Plan
d~sj~tionS;:' .,' '. " '." . .. ' ..
c, . nieplan proVi4!!'S an overall urban de~igJ1 conc.ept that is internally consistent, and
provides quality development; .' ... . .
d, The plan incorporates public and private opep spaces to provide adequate areas' for
passive and active recreation by the OCcuPalltsfusers of the site, andlor to protect
existing natural systems;
.e. .The plan provides view corridors to the shoreline area and Mt. Rainier where
applicable;
f. Public access is provided to water and/or shoreline lIl'~; .
g. The plan provides distinctive focal points such as public area plazas, prominent
architectur,ll features, or other items;
h. ,Public alldlorpriv~te streets are arrangedin a IllYQuttpa!wovidereaso!)ahle.~ccess to
property and support the land use envisiQne(j;and
I. The plan accommodates and promotes transit, pedestrian, and other alternative modes
of tr~nsportation.
3. Additional Criiena for the UC-NI and UC-N2 ZOnesOnIY:
a. The.plap :~9llf()[IIlS.to Ib.e approyedc?p~ptual.planrequjredbY4exyl0l'ment ~greement
for the sub-area in question, if applicable. " ,. "... .... '"
b. The plan conforms to the intent and the mandatory elements of the desigI:l gllidelines
c.
.. ,,)psa~I!W.~CM,.g)()· Th~ 11,asterrlanR~!'\\i~'?JlAAes ~i1l+J?*"de~~ W~ncept
" ' .. fof~fM~~c,t .C:,1).$~li;tedi~.l:\'': Ur~~'S:'~~Ilj;!l\ ~<?!1W!'\(l}~~YYf~~.ol!cies.
The pmposed mtetconnected CIrculahon l1'::tworkmust demonstrate· the funchon and
location of required circulation elements r~uired inRMC-4-3-100. Inte\mt":\)fcIOcal"'" .
roads shall provide adequate edges and buffers to parking lots. A sufficient number of
Lowe's of Renton
File No.: LUA-05-l61, SA-H, SA-M, ECF
August 8, 2006
, ,:\ /:
Page 7
4.
5.
i.
8.
9.
10,
II.
12.
13.
, .. d.'
e. '
" 'toad);smn'proyid6 a'de4uateedgesimdbuff~'tbli~g16ts.A.S1lflj.cient Humber of
Pea~aI:I~Fiehtelhfre\'ts ai~ 'desigru,1:eil' tOii!\p11:ilii!riFtlle'VlslBii foteach district in the
Urpiljl Qmter ~orth Cpmprehensive PIll!' ~signatloll" ' ... ' .', , 'Giitiways !Ire deslgnat~(fc6iisisteri{wtffi'tJie'CiiiiiPfe~bllsiY~'PlRiian~ conceptual plans
for the gateway demonfuilte the design ocilideptforgaMWloy' trtatfuerit and identifY
significantgatewayfeaturesto be provided: ..... .
"Jne MasWrPJanlhcludesa sequencirigelei&niiliai ekjji"llis whli.t'pltases of the Master
PlahWilj:be bciilt-'Out 1fut, and in what \'tdettlieplilis~f:l!:W'iii Jieb'ullt;imd an estimated
time frame. .,. " ",
ThepropOsed¥erml{;ompl~x issupported by the cotiipreheitsive pll!I1,'Wlllch calls fo~ urban
scale uses m.ciuilllilrbliSinesses'that caterto consUnler defuiilids. ' .
" ,--'J!,! '--,' :,,' " '!' '1.:-
The building meets the bulk standards set forth in the Zonirig'COde.' t)ue totthe easements along
both Garden and Park Avenues, the applicant has proposed a more generous setback since
buildings and certain structures cannot be located over or near large-scale utility lineS.'
<::9!Dplianc y with both specific Building and Fire .Code reguJations~lIbe detennined when "<l".'" '"'' ,' .• 'r" ',_ -, " '. ' _ " -:' ,iV,' 'C".: '" , .,' ',' 'specific bmldmg plaiJs are submitted. . '.". . .
"TI!,~~~V~1.6i?~t,'Rf t):te R'i~~~'6d uS,e ~hould ~?ii~~~~#tr.wit~w~d i1nR~ctS ilh surroubding
devdoPment although there WIll be mcreasedautomonve traffic bOth from patrons of the
1ilisines~imd fr.;Ih dbiive' .. Weks: The bitlldiD WiJlilciielbii6k'fi:6iD fue§lreet due to the ·'·i·,.", .",' ..... , .. , ... ,1),' ... ,... . .. ,,,,/i;, ..•. ;,,0,,."',, •• '" e'iise~isli1Qn'g Gafden'iiij:aP1lik pr6vidiiig m:Oie\.isUa! separation: . ~e. bUilding's exterior
trea~ts~ould ,aisQ relieve or.mitigate anyb~~pp'earance Wit\i. banaillgan~pylasters
providirigbtealis in the long fac'ades of the building. While the building will be approximately
46.feet tall, buildings up 19 ten stories are pennitted. The buildin/i; should not block light and air from enitiring sufrowufuigproperties. ". . .... ., .'
• " I '
Theconipiex will have the required landscaping although the applicant will have to increase
some aspects of the landscapin& to meet code requirements in the parking lots and may have to
alter species or varieties tb avoid interference with either the utilitye~sementsor pedestrian
sidewalks. . .'. . .'
Thepr~p\'sed use should not generate any harmful noise, odors or glare. Construction noise
should be short-lived and is always a consequence of new construction. . , '-(
Public services are available to s~rve the proposed use,'
Redevelopment of the abandoned parking lot should prevent urban deterioration or blight , " ,--;
No Planned Action Ordinance is applicable to the proposed development
The proposed use is self-sufficient although in the main, home irIlprovement stores are large,
one-story facilitie~ that are designed to meet the sOOpping needs of its clientele and are not
necessarily com,Jlljctilrl;lart d~igns. .
"' \'j, . -~,-:" -",,,"--
The design is inteinaIlycP~~W,~ 1lI1~JlroV1desibothveliicu1arand p~destrian links to the
surroJIDding cornmillliti !f(wur share drivewa~~and potentially parking with it neighboriIlg
retail store.
Lowe's of Renton \.' ,
File No,: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 8
'. )<1., .... :Ih.\2sjfe is ,\an&I'lI!W4;b.l\yel:Jii'stor~~ .gsne~!yAp n,ot prllvkl~mu<;h additicmal public space.
rts IOc~?p,4!le~)'l9i,~l!if!') yt~;~ c'!Mdors tO~)lIT0!lR~il}g.amenilif.~. pr shorelines.
1.5 •. ,' ~9hi~tImtL~t\¥;'sotthe d~sign a~e;;'~de4\9,wO~~ra~ihe~uJ!.>.appeara!)ce but, again,
e iiu~~sio~Fs;no(ij"teIi~ed; as ~Jl1lblicfCl~~j point:·.~·.? -.,' ,. '.
16 ..
n.
DECISION:'
,,~e;'iPul?Jj~,lr~it~ lClc~tUJear the~ite ana'p'e~;;' cdr.n~ons to sidewalks are
prd,vlqe:q,\liii:D:i!:t,Ure of ~YQf the products proYi#<\ ~y the;P,ipPos~4 use are not intended for
c.,ry'-out saie~."'· '.' ',. ...,
In cOQclusion,.l\1e pr()Pp~ed USe. fits manyofthe design criteri~ apd 9thercri~eria of the Site Plan
. . and MasterPlan req~m(l)ltS hut clearly itspro~tsan!t~enj~",sare~tilitlirian items or large-
scale items and the design is geared to providing patrons With reasonable access to those
W94uc!$,an~ ~ervic;e~:., .
. The pr~posedMasterPi.n and Site Plan are approved subjecttotherollowing,c(md;~ciPs:
1.
2.
3.
4.
lpfonnation shall.~ pr';rviQ~c!,regarding the propq~edJanoocap.in~ wtl)i;1.the slorrowater
<:a,semerit to the e#t ofOarden AvenueN that would ~stu:e the,exisMg stPnnwater pipe would
"notbe ~~w9.nd ~tthep~QposedAutumn !:,:iiine¥apleisa ~uiti\~l~streettree. Or, a
revis,ed Ian~ca,PeI?)lU1 sll.all e, sUQmitted prClposiIlg appfwriate lOIlQ$Ciipijig tliAt will not damage
the sionnwat~r pipe. This,sll.all be submitted to !he<DeveIopmeni S~i-vi~eiDivision project
Inanager for, reVi~w and ~pro~al prior to the iS~\lance()f a buiiding penm,t.. , .. ,", ,". ':',' ~"-" -. " ,"" -',-',
A revised la~dscape ~13n shall be submitted with the liuilding peirrnt ~ppii~~tion showing the
minimum 751 shrubs requined within the parking area. The revised landscape plan shall be
submitted to the Developm«nt Services Divisionproject manager for review anfl approvaL
A revised site plan shall b,e submitted showing, ~1 of the proposed Qrive'o/ays at a maximum
width of30-feet, or a mcidification of the maxiini.lln driveway standaroo shall ~ requested. The
revised site plan or modification request shall be submitted to the Development Services
Division Project Manger for review and approval with the building permit application. , . . ' . .
A lightingpl.m shall be submitted with the building permit application for review and approval
by the Development Services Division project manager.
ORDERED THIS 8'" day of August 2006.
:.;
Lowe's of Renton
)
File No.: LUA..{)5-161, SA-H, SA-M, ECF
August 8, 2006
Page 9
Jill Ding
1055 S Grady Way
Renton, WA 98055
Laura Orlich
SSOE
22121 17th Ave SE, Ste.225
Bothell, W A 98021
Kayren Kittrick
Development Services Div.
Renton, WA 98056
Dash-80, LP
440 N I" Street, Ste. 200
San Jose, CA 95112
TRANSMITTED THIS 8th day of August 2006 to the following:
Mayor Kathy Keolker
Jay Covington, Chief Administrative Officer
Julia Medzegian, Council Liaison
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Mike Neer
PACLAND
11235 SE 6'" St., Ste. 220
Bellevue, W A 98004
Jim Manion
Lowe'sHIW
1530 Faraday Ave., Ste. 140
Carlsbad, CA 92008
Gregg Zimmerman, PBPW Administrator
Alex Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King County Journal
Neil Watts, Development Services
Janet Conklin, Development Services
If the
may
The ApI)eat;iffi~e
private .
the Hearii).'Efi);
All communications Concerning the. proposal' must be made in public. This public communiCation penriitS all
intereste<iparties to know the .contelits cifthe cOInmunication and would ail'1w thenl to openly tebut the
evi~ce. Any violation ofihisdoctrine would result in the invalidationofthe ~est by tl'" Court.
Lowe's of Renton ,_
File No.: LUA-05-161, SA-H, SA-M, ECF
August 8, 2006
Page 10
i, ;
..... ,
The Doctrine applies not only to the initi~lpublic hearing but to all ReqlJ~st,:; for Reconsidei'ation a:; wrll,as,
Appeals to the City Council.' ".... . . . '. . .
~ . ~' :
.'~, :,
"~"~I
-f
UC-Nl.
U -Nl
UC-N z
. . ' -, : -.
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~1~~~~I~:::'~O~~I~:'!b~\E~n~~~~~:'i;f;~ro~~m~th~:e~propQ~,Pl'Dj\lct, the following mitigation meksures . _ lillI'" tea! " " ' .. ' I1ille~~'~~Pt:' ;
shall be designed to COmply with the D~iltinent of Ecology's (DOE) Erosion and
Requirements,otiliined in Volume /I '9fltpej2oo1 Stbrmwater Management Manual.
secfiment control measures shall be instailed 'and maintained to the satisfaction of the
the Developinent S~rviCes Division forth~ d~~tiJ.lf! 9f the project's construction~
iiifi;"ni·~h,.11 comply with the recommendations I)f thii':g~otechnical engineering report prepared
b~J~~~~~~;:r', Inc., dated January 2q,-2006, regardi~g eartrwork and soil compaction, design of
fe slabs and retaining walls, structural fill, dralnagEfiP!iving, and utilities.
. ,,' ., ~'."":e.,
located along Garden AvenLi~N shall be a'ugercast pileS or driven steel pipe piles
t~~o~:~~,~~~~~~!be liquefiable/compressible upper aliUvial, deposits and bear on the lower alluyial
d the stormwaterpipe,
'4. The project shall Iledesigned 10 ~I11PIY with the 2001 Departmenl of Ecology Stormwater
Managert.ent Manual for waler quality. '
5. The applibant shall pay a Transportation Mitigation Fee of $85,837.50 for the proposed 3,815 new
average dailytrlp~ that will be generated by the,proposed development Fees are subject to change
and are payab/e'prior to the issuance of a buildinll permit.
. 6. The appl~nl shall pay a Fire MiUgalion Fee I)f $0.52 per square fool, for a cunrent estimated ..total' of
$75,420.8Q. Fe,lis are subject to change and ate PlIYBble prior to the issuance of buildinfjPermits. , i
"J
i,
.. ,"
Excerpt of Bylaws for ASE
BYLAWS
OF
ALL~CEFORSOUTHEND
ARTICLE 1
MEMBERSHIP
Section 1.1 Election of Members. The members of the
corporation ("Members") shall consist of individuals, domestic or foreign
profit or nonprofit corporations, general or limited partnerships,
associations or other entities (each, a "Person") that have each of the
following qualifications, as detennined by the board of directors in its
sole discretion:
(a) The Person will support the purposes of the corporation and
will not have a conflict with supporting the purposes of the corporation.
(b) The Person has paid dues to the corporation in such amounts
and at such times as the board of directors may establish by resolution.
(c) The Person has made such applications or entered into such
agreements as the board of directors may require.
Cd) The Person has been elected as a Member by the board of
directors at any meeting thereof.
Section 1.2 Rights of Members. The rights of the Members
shall be exclusively as follows, and none of the Member shall have any
other rights whatsoever:
(a) The Members shall have voting rights with regard to the
question of whether to approve a plan of merger or consolidation,
pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the
question of whether to approve a sale, lease, exchange, or other
disposition of all, or substantially all, the property and assets of the
corporation not in the ordinary course of business, pursuant to RCW
24.03.215(1).
(c) The Members shall have voting rights with regard to the
question of whether to approve the voluntary dissolution and winding up
of the corporation, pursuant to RCW 24.03.220(1).
1 of2 pages EXHIBIT c..
(d) The Members shall have voting rights with regard to the
question of whether to approve a plan of distribution, pursuant to RCW
24.03.230(1).
Section 1.3 Certificates of Membership. Certificates of
membership in the corporation may be issued. If issued, they shall be
numbered, and the respective Members' names shall be entered in the
membership register of the corporation as the certificates are issued.
Certificates, if any are issued, shall bear the Member's name and shall be
signed by the president or the secretary.
Section 1.4 Status of Membership. Membership in the
corporation shall be personal, shall not survive the death of any individual
Member, and may not be transferred by operation of law or by any other
means.
Section 1.5 Termination of Membership. Membership in the
corporation may be terminated Ca) for any action by a Member that is
detrimental to the best interests of the corporation, (b) or for failure to
actively support corporate purposes, or to actively participate in corporate
activities, or (c) for failure continually to meet the qualifications of a
Member pursuant to Section 1.1 of these Bylaws. Removal shall require
the affirmative vote of the board of directors. In the event that any such
termination is contemplated, the board of directors shall notify the
Member in a record of the reasons for the proposed action, and of the
time and place of the meeting of the board of directors at which
termination is to be considered, not later than ten (10) days prior thereto.
Prior to the meeting, the subject Member shall be entitled submit written
responses to the stated reasons for termination. At the option of the
Board, the termination may be immediate, without prior notice, but with
full post termination appeal proceedings.
2 of2 pages
September 5,2006
DECISION OF THE HEARING EXAMINER ON
MATTERS OF STANDING AND JURISDICTION BROUGHT BY
ATTORNEYS FOR ALLIANCE FOR SOUTH END (AS E) AND
PROGRESSIVE ALLIANCE FOR A SUSTAINABLE SOUTHEND (PASS)
While some background may help frame this decision, elaborate details and history need not be
provided at this time as the only issues currently are whether the parties have standing to bring
challenges of the City's actions and whether the Hearing Exan1iner has jurisdiction to hear the
challenges if the panies do have standing.
This matter concerns City decisions regarding The Landing, a land use project proposed for
approximately 47 acres in north Renton. The land, in the main, was property used by the Boeing
Company for its airplane business and vacated as the company consolidated its operations toward
the north and west. With the potential for the land to be developed or redeveloped the City of
Renton conducted an environmental review of proposed changes to its Comprehensive Plan and
Zoning Code and potcntialland use changes for the property. The City issued an Environmental
Impact Statement (EIS). The adequacy of the ElS was appealed and after a public hearing on the
appeal, the appeal was denied. The appellant in that matter is a member of one of two groups
challenging current decisions regarding the current proposal.
Subsequently. Boeing sold off some of the acreage and a developer offered a development plan.
The Ci ty held a public hearing and approved Ordinance 5107. a Planned Action Ordinance. That
ordinance designated as Planned Actions uses and activities described in the FEIS and subject to
mitigation measures that had been separately proposed as pan of a Development Agreement
originally agreed to by Boeing and the City .. That ordinance further allowed changes to that or
other proposals that fell within the scope and character of the original plan. The original developer
abandoned their original plans and the propcrty changed hands to the current applicant. New plans
were submitted and found by the Director of Development Services (Director) to be in
conformance with the original Planned Action. The proposal was approved as a Planned Action
and the Master Site Plan was approved. These actions by the director apparently removed any need
for subsequent public hearings or environmental analysis of the new proposaL An appeal of the
City's proposed infrastructure improvements in thc area where the subject proposal would be
developed had been initially filed but was withdrawn.
Two separate citizen groups filed appeals of the City's action or actions. No individual filed an
appeal on his or her own behal(
The City and the underlying applicant, Harvest Partners (Applicant). challenged the standing of the
two groups that brought the appeals. At a Pre-hearing Conference the issue of standing as well as
the Examiner's jurisdiction to hear the appeals were defined as issues to be resolved prior to any
public hearing on the merits of the appeal or appeals. The various parties submitted motions and
responses and oral argument was heard on the motions.
EXHIBIT _D __
Hearing Examiner ~~cision
September 5, 200(
Page 2
The panies to the proceeding are the City, the applicant and the two citizen groups.
Standing to Bring the Appeals:
The Hearing Examiner Ordinance in part provides the following language on appeals:
RMC 4-S-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATNE DECISrONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827,1-24-2000)
1. Applicability and Authority:
a. Administrative Determinations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing, with the Hearing Bxaminer,
Examiner's secretary or City Clerk. (Om. 4521, 6-5-1995)
b. Environmental Determinations: Except for pennits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, whcn any
proposal or action is granted, conditioned, or denied on the basis of SEP A by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisicms of this Section.'
c. Authority: To that end, the Examiner shall have aU of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request fOT Reconsideration: Sec RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmllntal Detenninations:
Appeals from environmental determinations as set forth in subsection BIb of
this Section aT RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agllncy or person may appeal the
City's compliance with chapter 197-11 WAC for issuance ofa Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Oed. 3891,2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Detelminations other than
Environmental: Appeals from administrative detenninations of the City's
land use regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, department, board or
bureau of the City affected by such determination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Hearing Examiner 1
September 5,2006
Page 3
d.
'sion
Any individual or party ofrecord who is adversely affected by such a
'3.ecision may appeal the decision to the City's Hearing Examiner pursuant to
t1).e procedures established in this Section. (Ord. 4351, 5-4-1992)
lpecial Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present mther
than speculative. (Ord. 4551,9-18-1995)
One citizen group is identified as the "Alliance for South End" (hereinafter, ASE). They
challenged two actions:
The Director's decision designating 'The Landing" as a planned action;
The Director's decision approving the Master Plan for "The Landing."
The only member of ASE identified was Brad Nicholson. He lives northeast of the project area.
He drives through the area where the project is proposed. He also uses the nearby Coulon Park.
He has identified traffic as an issue that would affect him. He also identified impacts to the water
quality ofLalce Washington as an issue that concerns him. He also identifies himself as someone
who might shop, work or live in the area that would be developed if The Landing were approved.
II was Mr. Nicholson, as an individual, who challenged the original EIS prepared for the City'S
Comprehensive Plan amendments and Zoning Code amendments.
The second group is identified as "Progressive Alliance fOT a Sustainable Southend" (hereinafter,
PASS). This second group appealed three actions:
The Director's decision on the Master Site Plan .
The Planned Action decision on the roadwork and utility improvements
The Planned Action decision on "The Landing."
Two PASS members specifically identified are Patrick Kik and Sheila Pratt. Mr. Kik is a member
of United Food and Construction Workers Local 21, which is a member of PASS. He lives at 530
Burnett Avenue North in Renton, Washington, a few blocks south of the proposed development.
He has resided there since May 1997. He maintained that he wanted to be involved in the review
process. He noted tI1l.ffic and construction would affect him. Ms Pratt, according to her signed
Declaration, lives at 300 Vermont (sic: Most likely Vuemont) Place Northeast in Renton,
Washington, also a few blocks from the proposed developmenl She wanls to be involved because
anything that occurs on that site would affect her due to her proximity to the proposed
development. Traffic was identified as one area that concerns and would affect her. Her use of
Coulon Memorial Park would be affected by more users, parking dynamics and pollution to Lake
Washington adjacent to the park.
Hearing Examiner n-cision
September 5, 200,
Page 4
Since neither appeal was filed by any of the named individuals, the associations or groups they
belong to can only have standing if some member of the association would have standing. Int'l
Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207,213,45 P.3d 186 (2002).
The first group to be considered would be ASE, the group in which Mr. Nicholson is a member.
The attorney representing ABE also represents Westfield, WEA Southcenter LLC, a business which
owns and operates a large shopping center, South center, located in Tukwila, Washington, a few
miles southwest of the current proposal's location. The business, the attorney admitted is involved
in providing at least some funding for this litigation and is on record (press releases and
announcements -citations oll1itted) as opposing this development. Both the City and applicant
challenged the standing of ASE based on the association of Westfield with this litigation and its
funding. They challenged ASE as a shell corporation intending to directly impede the subjcct
proposal by indirect means that Westfield could not do direcily. Westfield, as an economic
competitor has no standing to bring an appeal. Evidence presented at the hearing was the
membership application of Mr. Nicholson and the bylaws of ASE.
The membership application contains the following footer text:
"C:\DOCUMENTS AND SEITINGIPETERJMY
DOCUMENTSIDA T AlDOCIWESTFIELDINON PROFITIMEMBERSHIP FORM.DOC"
(Exhibit A. Membership Application -Alliance for South End that Mr. Nicholson submitted for
membership in ASE)
The Bylaws of ASE provide the voting rights of members of ASE:
Section 1.2 Rights of Members. The rights of the Members shall be exclusively as follows, and
none ofthe Member (sic) shall have any other rights whatsoever.
(a) The Members shall have voting rights with regard to the question of whether to
approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the question of whether to
approve a sate, lease, exchange, or other disposition of all, or substantially all, the
property and assets of the corporation not in the ordinary course of business,
pursuant to RCW 24.03.215(1).
(c) The Members shall have voting rights with regard to the question of whether to
approve the voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03.220(1).
(d) TIle Members shall have voting rights with regard to the question of whether to
approve a plan of distribution, pursuant to RCW 24.03.230(1). (Exhibit 8)
At the hearing this office in trying to understand the relationship of ASE's members and
specifically Mr. Nicholson's relationship to the litigation and also guided thc litigation asked: "Who
is driving the car?"
Hearing Examiner: S10n
September 5, 2006
PageS
Staying with the "who is driving the car" analogy:
Mr. Nicholson has no official say in the course or direction that this litigation will take. He cannot
steer the litigation with any vote he can take. ASE's attorney noted Mr. Nicholson has a say in (he
litigation. It is easy to say that he can provide input but there is nothing he can do to control where
it goes. He has no vote in the organization that controls or governs or even gently directs dle
appeal. ASE merely uses his "stature" as an affected person to give it standing.
Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice.
The other members could outnumber and outvote him. Except, dearly, those others cannot out
vote him since none of them has a vote.
Steering ahead with this "who is driving" analogy, one has to determine what is being driven.
Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they
have a say. On a public bus they do not. In some cases they can get off (bus) and at other times,
they are on for the ride until it reaches a predetermined destination (airplane). With a bus, the
conveyance may still be driven but no one is onboard any longer. A bus goes to the last stop even
if there is no longer anyone on board. The course of the bus was dear from the start and that's
where the bus goes. Can this litigation continue if there are no riders?
ASE only has standing while there are members and while there are members with standing, that is,
persons with the potential to be injured if they don't get a reasonable resolution of their appeal.
Which itself brings up an interesting point -what if the membership dissolves, that is fades away,
without dissolving ASE officially? Does ASE have any standing if there were no members any
longer even if they or he did exist when the appeal was filed?
The appellants labeled Mr. Nicholson a "poster child" (ASE's response to applicant's motions to
dismiss for lack of sian ding, Page 1) for the type of person within the zone ofinleres! ofSEPA. He
could actually be a "poster child" of a "straw man" for an organization which has no meaningful
substance.
111e definition of a "straw man" is: A third party used in
some transactions as a temporary transferee to allow the
principal parties to accomplish something that is otherwise
impermissible." (Blaek's Law Dictionary, Seventh Edition)
We have a litigant or litigants, if one accepts that there are other members of ASE (although there
was no proof of their existence or their individual attributes of standing), who have no control of
the litigation.
The Bylaws of ASE specifically limit the participation, at least, in any voting that might control or
influence the actions of the corporation. An interesting side note is that variously ASE's Attomey
noted that: (I) there were "no members" in its initial filing with the Secretary of State; (2) then in
pleadings indicated that was a mistake and it should have said "no voting members"; (3) but the
Hearing Examiner· ision
September 5, 2006
Page 6
bylaws provide a vote. Allhough as seen above, the vote is very limited and provides no control of
this litigation. A series of mistakes was identified by the parties in some of the various filings in
tlus matter. They do cast a bit ofa shadow over some of tile evidence.
So as noted above, if there are a number of other members of ASE, Mr. Nicholson would not
necessarily get to call the shots or "drive" the bus or steer the litigation. But there is no evidence
that even a real majority of ASE's members can do anything to control the course of this appeal.
The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the
members any right to control the appeal. Since ASE filed an appeal and its anomey continues to
make appearances one has to presume someone or some entity, somewhere is in charge, calls the
shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no vote
on litigation matters nor do any of ASE's "members."
That footer shown above could be somewhat telling in determining who is directing the litigation
on behalf of ASE. Mr. Nicholson'S Membership Application has a footer that identifies,
presumably, that document's computer storage origins. The footer line contains the following text:
"C:\DOCUMENTS AND SETTlNG/PETERIMY
DOCUMENTSIDAT AlDOCIWESTFIELDINON
PROFITIMEMBERSHlP FORM.DOC"
That footer line would seem to indicate that Westfield's legal business and the ASE association's
litigation might be handled or originate together. It would merge the potential interests ofthc two.
Again, recalilhal Westfield is a competitor of the underlying applicant for the land use decisions
being challenged. Or the "footer" could be just one more mistake in the way this matter was
handled by Westfield's and ASE's attorney. It might have been a mistake in how the document was
initially created in whatever word processing software was used. But ASE's attorneys have been
frank. There have been no real attempts to hide the fact that Westfield employs them and actually
pays some of the bills for ASE. But this blending, merging or blurring of the lines of control all
lead to the inevitable question of who controls the litigation and whose interest is being served by
the litig-dtlon. The conclusion would appear to be inescapable -Westfield is paying some of the
bills and no one else, neither Mr. Nicholson nor any otller individual or majority of ASE has been
identified as being a principle litigant who can direct the litigation of this appeal.
So even if this office were to acknowledge thaI Mr. Nicholson might have standing under this
office's normal indination to liberally grant standing to an individual who can show some interest
in a matter, Mr. Nicholson did not file the appeal in his own right. Sticking with our transportation
analogy just a bit longer -Mr. Nicholson hitched his cart to the wrong horse and now has no
control or say in this litigation. Mr. Nicholson has no ability to do much in his "non-voting"
capacity as a mere member. Bu[ Mr. Nicholson is not alone (if there are other members of ASE) as
no member of ASE or the combined membership of ASE can do anything with this litigation. It
may be unfortunate to preclude Mr. Nicholson's right to have his standing ascertained or appeal
heard but he tied his rights, if any, to an association that granted him no rights to direct litigation.
He chose that course rather than file an appeal in his own right.
• Hearing Examiner Decision
September 5, 2006
Page 7
While one generally "pierces the corporate veil" to get at underlying persons or assets, it is
generally done so that justice can prevail. Discard the corporate veil in this case and what we find
is a competitor, Westfield Corporation. They own the nearby Soutbcenter Shopping Center. They
appear to be paying a good portion of the litigation, employ fue attorney who is representing ASE
and may havc control over the litigation. Although. this office finds no evidence that Westfield .
controls the litigation, this office finds that no one really seems to control ASE and the attorneys in
tbis matter. ASE, again, has no voting members controlling the appeal. The bylaws provide the
ASE membership with a limited range of power and none that go to the heart of who controls this
litigation.
In SODERBERG ADV. v. KENT-MOORE CORP. II Wn. App. 721,734,524 P.2d 1355 (1974)
the court found:
" The court could conclude from the evidence here and reasonable inferences
therefrom that KM used its undue domination and control, through KM personnel
with a primary loyalty to KM, to obtain and then avoid payment for essential
services from which KM expected to receive great benefit. The domination was
so complete that "the controlled corporation [had], so to speak, no separate mind,
will or existence of its own and [was] but a business conduit for its principal." 1
W. Fletcher, Private Corporations § 43, at 205 (perm. ed.. rev. 1963). In Seattle
Ass'n of Credit Men v. Daniels, 15 Wn.2d 393, 396,130 P.2d 892 (1942), the court
in discussing the doctrine of disregard quoted the following with approval from
Pittsburgh ReflectoT Co. v. Dwyer & Rhodes Co., 173 Wash. 552, 555,23 P.2d 1114
(1933):
"In order to justify the judicial disregard of corporate identities, one, at least, of two
things must clearly appear. Either the dominant corporation must control and use the
other as a mere tool or instrument in Carrying out its own plans and ptrrposes so that
justice requires that it be held liable for the results, or there must be such a confusion
of identities and acts as to work a fraud upon third persons." Even i fboth things must
be shown as suggested in Sommer v. Yakima Motor Coach Co., 174 Wash. 638,26
P.2d 92 (1933) (decided prior to Seattle Ass'n of Credit Men v. Daniels, supra), the
court could and did conclude from the evidence that both things had been proved.
Footnote 1, supra. See 1.r. Case Credit Coq>. v. Stark, supra at 475. See also Forest
Hill Corp. v. Latter & Blum. Inc., 249 Ala. 23,29 So. 2d 298 (1947); Linea Servs., Inc.
v. DuPont, 239 Cal. App. 2d 841, 49 Cal. Rptr. 196 (1966); Dillard & Coffin Co. v.
Richmond C.otton Oil Co., 140 Tenn. 290, 204 S.W. 758 (1918). KM in good conscience
can scarcely complain if the trial court detennined that to recognize the separate entity
ofPK under th.e peculiar circumstances here would in effect place the court in the untenable
position of assisting in the accomplishment of a breach of duty owing to plaintiff."
As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization
without standing have found that no individual member had sufficient standing on their own right.
Or the claims made on behalf of the association were too personal to the members and could not be
•
•
Hearing Examiner n~cision
September 5, 2006
Page 8
attached to an association. But those cases that found a lack of standing can still be elucidating.
Here we have an organization in which no member can call the shots.
See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn2d 862,866-67,576
P.2d 401 (1978); Lujan v. Defenders ofWildlifc, 504 U.S. 555, 561, 112 S.C!. 2130, 2136, 119
L.Ed.2d 351 (1992). International Ass'll of Firefighters, Local 1789 v. Spokane Airports, 146
Wn.2d207, 213-14, 45 P.3d 186 (2002); Des Moines Marina Ass'n v. City of Des Moines, 124 Wn.
App. 282, TIMBERLANE v. BRAME 309 79 Wn. App. 303, 901 P.2d 1074.
This office finds that ASE does not have standing. It is a mere shell created by the applicant's
potential competitor, SouthcentertWestfield for the purpose ofthwartin.g a competitor's proposed
development.
This brings us to the standing of PASS. Since the underlying nature of the association was never
challenged nor evidence produced to make it suspect as to its aims, it would appear that PASS has
members who individually could have standing and as such, PASS has standing to bring its appeal
or appeals. The two identified members both live close to the proposed project. They could be
affected by the traffic generated by the proposed development. They could be affected by the
construction of the project itself. One of them uses a park that could further be affected by
additional residents that would occupy proposed residences. Those interests appear to be within
the zonc of interests the appeal provisions were intended to protect. Thc increased traffic could
slow down their respective commutes, increase roadway congestion and possibly lead to increased
risk of accidents. They could suffer injury in fact. It will be up to the appellants to prove their case
[0 prevail in obtaining the remedy they seek but they have the right to present a case for review.
Jurisdiction to Hearing the Appeal:
Repeating again for clarity. the Hearing Examiner Ordinance in part provides the following
language on appeals:
RMC 4-8-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
1. Applicability and Authority:
a. Administrative Determinations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing, with the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action is granted, conditioned, or denied on the basis of SEP A by
a non-electcd official, the decision shall be appealable to the Hearing
Examiner under thc provisions of this Section.
Hearing Examiner D-"ision
September 5, 2006
Page 9
c. Authority: To that end, the Examiner shall have all of the powers of tIle
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153,9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmenlal Determinations:
Appeals from environmental determinations as set foI1h in subsection Elb of
this Section or RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chaptet 197-11 WAC for issuance ofa TItreshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-\985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Determinations other than
Environmental: Appeals from administrative detetminati.ons of the City's
land usc regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, deparnnent, board or
bureau of the City affected by such determination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Any individual or party of record who is adversely affected by such a
decision may appeal the decision to the City's Hearing Examiner pursuant to
the procedures established in this Section. (Ord. 4351, 5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be pTOtecled or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
It appe:u-s on the face ofthe appeal that the action or actions challenged were tbose of the Director.
Those appear to be the type of decisions that fall within the jw'isdiction of the Hearing Examiner.
Thc appeal of PASS may proceed with the following guidance: The party may not cballenge the
underlying ordinance (Ordinance 5 \ 07) since this office cannot review decisions of the City
Council. The Planned Action and Master Plan decisions of the Director can be challenged.
• Hearing Examiner D"ision
September 5, 2006
Page 10
Decision:
The appeal of ASE is dismissed, as they have no standing.
The appeal of PASS may proceed to arguments on the merits_
ORDERED THIS Slh day of September 2006 .
. ~\~.
FRED J. KAGFMAN .~r-Q..---
HEARING EXAMINER
TRANSMITTED THlS Sth day of September 2006 to the parties of record:
Zanetta Fonles Peter Buck Jerome L. Hillis
Warren Barber & Fontes, P.S.
PO Box 626
Renton, WA 98057
Buck & Gordon LLP
2025 First Ave, Suite 500
Seattle, W A 98121
Hillis Clark Martin & Peterson, P -So
500 Galland Buildmg
1221 Second Avenue
Seattle, WA9&101
Brad Nicholson Claudia M. Newman
Bricklin Newman Dold LLP
1001 Fowth Ave., Ste. 3303
Seattle, WA 9&154
2811 Dayton Avenue
Renton, W A 98056
King County Journal Newspaper
Attn: Dean Radford
600 Washington Ave S
Renton Reporter
Attn: Oscar Halpert
POBox 130
Kent, W A 98032
Kent, WA 98032
TRANSMITTED THIS Slh day of September 2006 to the following:
Mayor Kathy Kcolkcr
Jay Covington, CAO
Julia Medzegian, Council Liaison
Gregg Zimmerman, PBPW Administrator
Alcx Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King County Journal
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Neil Walts, Development Services
Janet Conklin, Development Services
•
Hearing Examiner 1 . sion
September 5, 2006
Page 11
Pursuant to Title IV, Chapter 8, Section lOOGofthe City's Code, request for reconsideration
must be filed in writing on or before 5:00 p.m., September 19. 2006. Any aggrieved person
feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of
law or fact, error in judgment, or the discovery of new evidence whieh could not be reasonably
available at the prior hearing may make a written request fOT a review by the Examiner within
fourteen (14) days from the date of the Examiner'S decision. This request shall set forth the specific
ambiguities or errors discovered by such appellant, and the Examiner may, after review ofthe
record, take further action as he deems proper.
An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that
such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other
specified requirements. Copies of this ordinance are available for inspection or purchase in the
Finance Department, first floor of City Hall. An ap peal must be filed In writing on or before
5:00 p.m., September 19, 2006.
If the Examiner's Recommendation or Decision contains tbe requirement for Restrictive
Covenants, the execnted Covenants will be required prior to approval by City Council or
final processing of the file. You may contact this office for information on formatting
covenants.
The Appearance ofFaimess Doctrine provides that no ex parte (private one-on-one)
communications may occur concerning pending land use decisions. This means that parties to a
land use decision may not communicate in private with any decision-maker concerning the
proposal. Decision-makers in the land use process include both the Hearing Examiner and
members of the City Council.
All communications concerning the proposal must bc made in public. This public communication
pennits all interested parties to know the contents of the communication-and would allow them to
openly rebut the evidence. Any violation oftrus doctrine would result in the invalidation ofthe
requcst by the Court.
The Doctrine applies nol only to the initial public hearing but to all Requests [or Reconsideration as
well as Appeals to the City Council.
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5 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
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In the Matter of the Appeals of
Alliance for South End CASE) and
Brad Nicholson re:
The Director's Administrative
Site Plan Approval.
I.
LUA-06-07l, SA-A
APPLICANT'S MOTION TO DISMISS
ASE AND NICHOLSON APPEALS FROM
THE LANDING ADMINISTRATIVE
SITE PLAN APPROVAL FOR
LACK OF STANDING
RELIEF REQUESTED
13 Applicant Harvest Partners seeks an order from the Hearing Examiner dismissing the
14 appeals of Alliance for South End CASE) and Brad Nicholson, dated August 31, 2006,
15 pertaining to the City of Renton's administrative decision approving Harvest Partner's Site
16 Plan for The Landing. The appeals should be dismissed for lack of standing.
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II. OVERVIEW
This case represents another attempt by ASE, a front group funded by a competing
shopping mall, to stop an economic competitor from locating in the City of Renton. This
time, ASE is challenging the Site Plan Approval for The Landing. In an attempt to correct its
lack of standing identified by the Hearing Examiner in ASE's prior appeals, ASE also
includes the name of its one known member, Brad Nicholson, in the caption of this appeal.
However, due to numerous flaws, Mr. Nicholson has failed to perfect his appeal.
Furthennore, although this appeal purports to be an appeal of the Site Plan Approval, all
assertions of standing stem from claims wholly unrelated to the Site Plan Approval, and the
generalized claims are insufficient to establish injury in fact. The Examiner should dismiss
the appeals for lack of standing.
Motion to Dismiss Appeals of
Site Plan Approval -Page 1 of 11
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seatlle WA 98101-2925
206.623.1745; fax 206.623.7789
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III. STATEMENT OF FACTS
A. ASE Appeals the City of Renton's Approval of The Landing Site Plan
On August 17, 2006, the City of Renton Department of Planning, Building and Public
Works issued a decision approving the Site Plan for The Landing, an approximately
572,700-square foot commercial/retail development to be constructed on a 38.22-acre site
within the Urban Center-North 1 (UC-NI) zone in Renton, Washington (the "Site Plan
Approval"). The City had previously approved the master plan for The Landing project, and
determined that The Landing project was consistent with the adopted Planned Action
Ordinance. I
On August 31, 2006, "Alliance for South End" ("ASE''), a Washington nonprofit
corporation, filed an appeal of the Site Plan Approval? Although Mr. Nicholson's name is
also included in the caption of the appeal, neither Mr. Nicholson, nor an attorney for
Mr. Nicholson, signed the appeal. Only Peter Buck, an attorney with Buck & Gordon LLP,
signed the appeal as "Attorneys for Alliance for the South End." In addition, only ASE, not
Mr. Nicholson, submitted a request for relief in the "Conclusion" section of the appeal. ASE
Appeal, at 9. Finally, only one filing fee was submitted for the appeal, by the attorneys for
ASE.. See City of Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's
Administrative Site Plan Approval. Neither Mr. Nicholson, nor an attorney for Mr.
Nicholson, submitted a filing fee for his supposed appeal. Finally, the appeal cites no direct
injury in fact; rather, it contains only abstract, general assertions of standing for ASE and Mr.
Nicholson. ASE Appeal at 2-4.
I The master plan approval and planned action designation for The Landing encompassed a larger site than
is the subject ofthis Site Plan Approval. For purposes of this appeal, "The Landing" is defined to include only
the development and site approved in the Site Plan Approval.
2 On the same date as this appeal, ASE also appealed an InterpretationIPolicy Decision made by the City of
Renton arising out of a proposed Lowe's store development located east of The Landing site, LUA-05-I 61,
SA-H, SA-M, ECF. Mr. Nicholson's name also appears in that appeal. Because the appeals were not
consolidated, the Applicant has filed separate motions to dismiss each of the appeals.
Motion to Dismiss Appeals of
Site Plan Approval -Page 2 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
SeaHle WA 98101-2925
206.623.1745; fax 206.623.7789
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B. Corporate Status of ASE
ASE is a Washington nonprofit corporation established in May of 2006 by the attorney
for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall. In May
and June 2006, ASE filed appeals of the City's master plan approval for The Landing, and the
City's determination that The Landing was consistent with the adopted Planned Action
Ordinance. In the course of those appeals, and based upon ASE's official filings with the
Washington Secretary of State's office, the Applicant gathered the following facts related to
ASE's corporate status:
• As of the date of the hearing on dispositive motions for those appeals, ASE had
only one named member, Brad Nicholson.
• Mr. Buck, an attorney whose law firm represents Westfield, served as ASE's
initial Director, President, Incorporator and Secretary.
• ASE replaced Mr. Buck with a new Director and President, Margaret Potter.
Ms. Potter is a former employee of Buck & Gordon, the firm representing
Westfield.
• Westfield is funding ASE's litigation.
• According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to
the Applicant on the eve of the hearing on ASE's previous appeals, ASE's
members had very limited rights overall, and had no rights whatsoever in terms
of directing the course of ASE's litigation. A copy of the excerpt from ASE's
Bylaws is attached hereto as EXHIBIT A and incorporated herein by this
reference.
Based on these facts and standing jurisprudence, on September 5, 2006, the City of
Renton Hearing Examiner dismissed both of ASE's appeals for lack of standing. A copy of
the Hearing Examiner's decision is attached hereto as EXHIBIT B and incorporated herein by
this reference (the "Hearing Examiner Decision").
Motion to Dismiss Appeals of
Site Plan Approval -Page 3 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Sea"le WA 98101-2925
206.623.1745; fax 206.623.7789
At a pre-hearing conference on this appeal, ASE was asked whether anything
2 pertaining to standing had changed. No additional information has been provided; therefore,
3 this motion is based on facts of record.
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IV. ARGUMENT
A. Mr. Nicholson Is Not a Proper Party Because He Lacks Standing.
1. Appellants must establish standing as to the Site Plan Approval.
Standing must be established as to each and every claim. See DaimlerChrysler
Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial
examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled
to an adjudication of the particular claims asserted."). Therefore, it is important to first
identify the particular claims in the appeal, and then determine whether the appellant has
presented evidence sufficient to establish standing for each of those claims.
This is an appeal of the City of Renton's Site Plan Approval for The Landing. Site
plan review is one distinct stage in the City of Renton's development plan review process,
occurring subsequent to master plan review and the environmental review. Unlike earlier
stages where overall project concepts and environmental impacts are analyzed, the site plan
review is focused on specific details of the project. According to the Renton Municipal Code,
"The purpose of the Site Plan process is the detailed arrangement of project elements so as to
be compatible with the physical characteristics of a site and with the surrounding area."
RMC 4-9-200.A.2 (emphasis added). Therefore, in order to establish standing, ASE and
Mr. Nicholson must demonstrate that they have suffered or will suffer a direct, concrete,
particularized injury in fact arising out of this Site Plan Approval. Any assertions of standing
based upon the overall project concepts or environmental impacts -including those such as
traffic, water quality, aesthetics or any other "impact" related to the master plan review and
environmental review stages -are insufficient to establish standing for purposes of this
appeal.
Motion to Dismiss Appeals of
Site Plan Approval -Page 4 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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Here, there is no relationship between Mr. Nicholson and the challenged action such
that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could
he possibly assert, that he is directly damaged in any way by the Site Plan Approval. The
supposed basis for Mr. Nicholson's alleged harm is simply too remote and indirect to the Site
Plan to establish standing, as discussed below.
2. Mr. Nicholson has not met his burden to show injury in/act.
To establish standing, the appellant bears the burden of demonstrating that he will be
specifically and perceptibly harmed by the challenged action of approving the detailed
arrangement of the Site Plan; in other words, the appellant must show a "direct stake" in the
Site Plan Approval. See Concerned Olympia Residentsfor the Environment (C.o.R.E.) v.
City a/Olympia, 33 Wn. App. 677,684,657 P.2d 790 (1983), When alleging a threatened
injury, the appellant must present sufficient evidentiary facts to show that a threatened injury
is "immediate, concrete, and specific to him or herself. If the injury is merely conjectural or
hypothetical, there can be no standing." Trepanier v. City 0/ Everett, 64 Wn. App. 380, 383,
824 P.2d 524 (1992). A mere assertion of injury, without factual support, is not sufficient to
demonstrate an injury in fact. Jd. at 384.
The requirement that the appellant demonstrate his "direct stake" in the controversy
consequently means that generalized grievances are insufficient to establish standing. Courts
have consistently held that there be a particularized injury, specific to the appellant:
It is an established principle ... that to entitle a private individual to invoke the
judicial power to determine the validity of executive or legislative action he
must show that he has sustained or is immediately in danger of sustaining a
direct injury as the result of that action and it is not sufficient that he has
merely a general interest common to all members of the public.
Lujan v. Defenders of Wildlife, 504 U.S. 555,573-74 (1992), quoting Ex parte Levitt,
302 U.S. 633 (1937).
Here, Mr. Nicholson fails to present any evidentiary facts to show that he suffers an
injury that is immediate, concrete, and specific to himself as a result of the Site Plan, which
relates only to the arrangement of the elements on the site. Mr. Nicholson presents no
Motion to Dismiss Appeals of
Site Plan Approval -Page 5 of 11
HILLIS CLARK MARTIN &
PETERSON, P. S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
evidence whatsoever of his "direct stake" in the Site Plan and makes no specific claims of
2 actual or threatened injury to his person or property arising out of the Site Plan Approval.
3 Instead, Mr. Nicholson relies on generalized assertions of injury that could be raised
4 by any citizen of the City or, indeed, any member of the public. Furthermore,
5 Mr. Nicholson's supposed "injuries" could not possibly arise from the Site Plan Approval, the
6 only approval at issue in this appeal. For example, Mr. Nicholson states that he will suffer
7 injury in fact due to the "increased traffic" and "decreased water quality" arising from the
8 "unanalyzed and unmitigated traffic and storm water impacts." ASE Appeal at 4. Not only do
9 these generalized grievances have no direct link to Mr. Nicholson, but such claims have no
10 direct link whatsoever to the source of the appeal -the Site Plan Approval. These claims of
11 unanalyzed environmental impacts, or flaws in the overall project concepts, do not arise from
12 the Site Plan Approval, These claims are therefore inappropriate for this appeal, and any
13 assertion of standing on the basis of these claims is inappropriate and insufficient to establish
14 standing for this appeal. Examination of all of the asserted justifications for standing, by
15 Mr. Nicholson and ASE, reveals that not one of the supposed injuries in fact actually arises
16 from the Site Plan Approval. ASE is simply trying to collaterally attack the Master Plan,
17 which appeal was dismissed due to ASE' s own errors. Such a collateral attack is not
18 permitted. See Habitat Watch v. Skagit County, 155 Wn.2d 397, 411,120 P.3d 56 (2005).
19 B. Mr. Nicholson Is Not a Proper Party Because He Has Not Perfected an Appeal.
20 In addition to Mr. Nicholson's lack of standing, the appeals should be dismissed due
21 to Mr. Nicholson's failure to perfect an appeal, and due to ASE's failure to establish
22 associational standing. The arguments presented in this Part IV.B (regarding Mr. Nicholson's
23 failure to perfect an appeal), and the arguments presented below in Part IV.C (regarding
24 ASE's lack of standing), are essentially the same as the arguments presented in Applicant's
25 Motion to Dismiss ASE and Nicholson Appeals of the Director's InterpretationIPolicy
26 Decision for Lack of Jurisdiction, filed on the same date as this motion. Because the appeals
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Motion to Dismiss Appeals of
Site Plan Approval -Page 6 of I I
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
were not consolidated, the Applicant has filed separate motions to dismiss each of the appeals.
2 For the Examiner's convenience, the arguments are repeated below.
3 Even if Mr. Nicholson did have standing to bring this appeal, and even if Mr.
4 Nicholson intended to appeal the Site Plan Approval, the appeal filed by ASE was
5 nevertheless inadequate to also serve as Mr. Nicholson's appeal. Analogous court rules make
6 clear that all pleadings, including appeals, should include the names, addresses, and
7 Washington State Bar Association membership numbers of the attorneys for each party, if
8 any, and should be signed and dated by the attorneys or the parties. See, e.g., RAP 5.3, 18.7;
9 see also CR 11.
10 Here, although Mr. Nicholson's name is listed in the caption of the appeal, there is no
11 signature block for Mr. Nicholson or his attorney. The appeal only contains the signature of
12 the attorney for ASE. The "Conclusion" in the appeal, in which ASE submits its specific
13 request for relief, omits Mr. Nicholson's name as well. Finally, only ASE paid the filing fee
14 for the appeal; Mr. Nicholson did not pay a filing fee.
15 Without a signature by Mr. Nicholson or on Mr. Nicholson's behalf, without a specific
16 request for relief from Mr. Nicholson, and without a filing fee paid by Mr. Nicholson, there is
17 no evidence to suggest that Mr. Nicholson or his attorney approved of the appeal, or intended
18 to file this appeal at all. Indeed, the absence of Mr. Nicholson's personal seal of approval
19 anywhere in this appeal, whether by signature, request, or payment of the fee, can only lead
20 one to the conclusion that Mr. Nicholson, the sole named member of ASE, did not perfect an
21 appeal. It is also further evidence that he is not in control of this litigation.
22 In addition to the arguments set forth above, the Applicant joins in the City of
23 Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's Administrative Site
24 Plan Approval for Lack of Jurisdiction Due to Nicholson's Failure to Perfect His Appeal,
25 which motion is incorporated herein by this reference.
26 Mr. Nicholson is not a proper party to this appeal. However, even if Mr. Nicholson is
27 deemed a party, he has not met his burden of proof to establish standing. The Applicant
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Motion to Dismiss Appeals of
Site Plan Approval -Page 7 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
respectfully requests that the Examiner dismiss the appeal from the City of Renton's Site Plan
2 Approval as to Mr. Nicholson.
3 C.
4
ASE Lacks Associational Standing.
1. ASE has the burden to establish associational standing.
5 In order to appeal an administrative decision, an appellant must have standing.
6 RMC 4-8-11 O.E.3.b. A party asserting standing bears the burden of establishing the elements
7 of standing. C.o.R.E., 33 Wn. App. at 683. The appellant must demonstrate an injury in fact,
8 and must also show that its allegedly endangered interest is within the "zone of interest" to be
9 protected or regulated. Trepanier, 64 Wn. App. at 382-83.
10 An association only has standing to bring suit on behalf of its members if its members
11 would otherwise have standing to sue in their own right. Int 'I Ass 'n of Firefighters,
12 Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002). In determining
13 whether associational standing exists, the U.S. Supreme Court has looked to whether the
14 alleged "members" of an association possess certain "indicia of membership" in the
15 organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333,344-45 (1977).
16 This "indicia of membership" analysis often turns upon whether the individuals
17 making up the association have the ability to guide the association's actions or exert control
18 over the association's directors. See, e.g., Friends of Tilden Park v. Dist. of Columbia,
19 806 A.2d 1201, 1208 (D.C. 2002). By focusing on whether the association possesses the
20 "indicia of membership," courts are able to analyze whether the alleged "member" actually
21 has control, or is merely a puppet for other interests.
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2. The Hearing Examiner previously held that ASE lacked
associational standing.
Applying the associational standing test to the first round of ASE appeals, the Renton
Hearing Examiner determined that ASE had not met its burden of proof to establish standing.
Hearing Examiner Decision, Ex. B, at 8. The Examiner determined that Mr. Nicholson, the
sole named member of ASE, lacked any meaningful control in the organization. Hearing
Examiner Decision, Ex. B, at 5. Therefore, the Examiner held, ASE failed in demonstrating
Motion to Dismiss Appeals of
Site Plan Approval -Page 8 of 11
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
associational standing: "This office finds that ASE does not have standing. It is a mere shell
2 created by the applicant's potential competitor, SouthcenterlWestfield for the purpose of
3 thwarting a competitor's proposed development." Hearing Examiner Decision, Ex. B, at 8.
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3. ASE has presented no evidence that its member(s) have meaningful control
over ASE.
Despite requests by the City at the pre-hearing conference, ASE has not yet presented
evidence sufficient to meet its burden of proof. Indeed, as of the date ASE filed this appeal,
the evidence suggests that the facts have not changed since ASE' s first round of appeals.
ASE is still funded and controlled by Westfield, and is still represented by Westfield's law
firm, Buck & Gordon. ASE has still provided evidence of only one alleged member, Brad
Nicholson. Based upon the only portion of ASE's Bylaws that it has provided, the two-page,
undated and unsigned "excerpt," its members' rights remain extremely restricted such that the
members are left with no meaningful control over the organization or the course of this
litigation. See Bylaws, Ex. A.
The Examiner must determine if ASE has carried its burden to establish associational
standing based on the evidence provided in the record. ASE has failed to produce any new
evidence to support its associational standing. There remains no evidence whatsoever that
ASE is controlled by a member with standing.
4. ASE has not met its burden to show injury in fact.
Even if ASE was able to demonstrate that it had associational standing to bring this
appeal on behalf of its members, the association also bears the burden of establishing that its
members, if any, meet the elements of standing.
Here, ASE has also failed to demonstrate that its members suffer an injury in fact.
While the ASE appeal contains general assertions of injury, it does not contain supporting
evidentiary facts to establish a specific, concrete injury to its members arising out of the Site
Motion to Dismiss Appeals of
Site Plan Approval -Page 9 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
Plan Approval.3 Mr. Nicholson is the only known member of ASE, yet ASE has fallen far
2 short of its burden of establishing that Mr. Nicholson has standing. As detailed in Part N .A.2
3 above, neither ASE nor Mr. Nicholson has presented evidence to demonstrate that Mr.
4 Nicholson has suffered or will suffer a concrete, particularized injury arising out of the Site
5 Plan Approval. By failing to present any evidence of injury in fact to its member, ASE has
6 failed to establish standing.
7 V. CONCLUSION
8 The parties to an appeal must have standing as to each and every claim asserted in
9 their appeal. Mr. Nicholson, as a purported appellant, must have standing in his own right
10 and must perfect his appeal by following the rules. Mr. Nicholson only asserts generalized
11 grievances without any evidence of particularized harm arising out of the Site Plan Approval,
12 and thus has not established that he has standing to bring this appeal. Furthermore,
13 Mr. Nicholson's failure to sign the appeal, and Mr. Nicholson's failure to pay a filing fee,
14 suggest that Mr. Nicholson had no intent to file this appeal. By failing to file a proper appeal,
15 Mr. Nicholson is not a party to this appeal. Mr. Nicholson's appeal must therefore be
16 dismissed.
17 ASE has the burden of proof to demonstrate its associational standing. An association
18 that brings suit on behalf of its members bears the burden of establishing that its members
19 with standing have meaningful control in the association. The Hearing Examiner dismissed
20 ASE's prior appeals for lack of associational standing, and ASE has failed to present
21 additional evidence that the status of its members has changed. Further, ASE has failed to
22 demonstrate that it has suffered an injury in fact. Because ASE has failed to carry its burden,
23 its appeal must be dismissed.
24 For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
25 of Renton's Site Plan Approval should be DISMISSED.
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3 The appeals should be dismissed on the basis of the pleadings and undisputed facts; however, movant
28 hereby reserves the right to request discovery based on any responses that ASE or Mr. Nicholson may file.
Motion to Dismiss Appeals of
Site Plan Approval -Page 10 of 11
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
1 DATEDthis ICY"""" dayofJanuary, 2007.
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Motion to Dismiss Appeals of
Site Plan Approval -Page 11 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
By , L
Jerome L: Hil s, WSBA # 1704
T. Ryan D' an, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fa> 206.623.7789
Excerpt of Bylaws for ASE
BYLAWS
OF
ALL~CEFORSOUTHEND
ARTICLE 1
MEMBERSHIP
Section 1.1 Election of Members. The members of the
corporation ("Members") shall consist of individuals, domestic or foreign
profit or nonprofit corporations, general or limited partnerships,
associations or other entities (each, a "Person'') that have each of the
following qualifications, as determined by the board of directors in its
sole discretion:
(a) The Person will support the purposes of the corporation and
will not have a conflict with supporting the purposes of the corporation.
(b) The Person has paid dues to the corporation in such amounts
and at such times as the board of directors may establish by resolution.
(c) The Person has made such applications or entered into such
agreements as the board of directors may require.
(d) The Person has been elected as a Member by the board of
directors at any meeting thereof.
Section 1.2 Rights of Members. The rights of the Members
shall be exclusively as follows, and none of the Member shall have any
other rights whatsoever:
(a) The Members shall have voting rights with regard to the
question of whether to approve a plan of merger or consolidation,
pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the
question of whether to approve a sale, lease, exchange, or other
disposition of all, or substantially all, the property and assets of the
corporation not in the ordinary course of business, pursuant to RCW
24.03.215(1).
(c) The Members shall have voting rights with regard to the
question of whether to approve the voluntary dissolution and winding up
of the corporation, pursuant to RCW 24.03.220(1).
1 of2 pages EXHIBIT _A __
(d) The Members shall have voting rights with regard to the
question of whether to approve a plan of distribution, pursuant to RCW
24.03.230(1 ).
Section 1.3 Certificates of Membership. Certificates of
membership in the corporation may be issued. If issued, they shall be
numbered, and the respective Members' names shall be entered in the
membership register of the corporation as the certificates are issued.
Certificates, if any are issued, shall bear the Member's name and shall be
signed by the president or the secretary.
Section 1.4 Status of Membership. Membership in the
corporation shall be personal, shall not survive the death of any individual
Member, and may not be transferred by operation oflaw or by any other
means.
Section 1.5 Termination of Membership. Membership in the
corporation may be terminated (a) for any action by a Member that is
detrimental to the best interests of the corporation, (b) or for failure to
actively support corporate purposes, or to actively participate in corporate
activities, or (c) for failure continually to meet the qualifications of a
Member pursuant to Section 1.1 of these Bylaws. Removal shall require
the affirmative vote of the board of directors. In the event that any such
termination is contemplated, the board of directors shall notify the
Member in a record of the reasons for the proposed action, and of the
time and place of the meeting of the board of directors at which
termination is to be considered, not later than ten (10) days prior thereto.
Prior to the meeting, the subj ect Member shall be entitled .submit written
responses to the stated reasons for termination. At the option of the
Board, the termination may be immediate, without prior notice, but with
full post termination appeal proceedings.
2 of2 pages
September 5, 2006
DECISION OF THE HEARING EXAMINER ON
MATTERS OF STANDING AND JURISDICTION BROUGHT BY
ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND
PROGRESSIVE ALLIANCE FOR A SUST AlNABLE SOUTHEND (PASS)
While some background may help frame this decision, elaborate details and history need not be
provided at this time as the only issues currently are whether the parties have standing to bring
challenges of the City's actions and whether the Hearing Examiner has jurisdiction to hear the
challenges if the parties do have standing.
This matter concerns City decisions regarding The Landing, a land use project proposed for
approXimately 47 acres in north Renton. The land, in the main, was property used by the Boeing
Company for its airplane business and vacated as the company consolidated its operations toward
the north and west. With the potential for the land to be developed or redeveloped the City of
Renton conducted an environmental review of proposed changes to its Comprehensive Plan and
Zoning Code and potcntialland use changes for the property. The City issued an Environmental
Impact Statement (EIS). The adequacy of the ElS was appealed and after a publie hearing on the
appeal. the appeal was derueci The appellant in that matter is a member of one of two groups
challenging current decisions regarding the current proposaL
Subsequently, Boeing sold off some of the acreage and a dcveloper offered a development plan.
The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. That
ordinance designated as Planned Actions uses and activities descnbed in the FEIS and subject to
mitigation measures that had been separately proposed as part of a Development Agreement
originally agreed to by Boeing and the City .. That ordinance further allowed changes to that or
other proposals that fell within the scope and character of the original plan. The original developer
abandoned their original plans and the propcrty cbanged hands to the current applicant. New plans
were submitted and found by the Director of Development Services (Director) to be in
conformance with the original Planned Action. The proposal was approved as a Planned Action
and the Master Site Plan was approved. These actions by the director apparently removed any need
for subsequent public hearings or cnvirorunental analysis of the new proposal An appeal of the
City's proposed infrastructure improvements in thc area where the subject proposal would be
developed had been initially filed but was withdrawn.
Two separate citizen groups filed appeals ofthe City's action OT actions. No individual filed an
appeal on his or her own behalf
The City and the underlying applicant, Harvest Partners (Applicant). challenged the standing of the
two groups that brought the appeals. At a Pre-hearing Conference the issue of standing as well as
the Examiner's jurisdiction to hear the appeals were defined as issues to be resolved prior to any
public hearing on the merits of the appeal or appeals. The various parties SUbmitted motions and
responses and oral argument was heard on the motions.
EXHIBIT B
Hearing Examiner ""~cision
September 5, 2006
Page 2
The panies to the proceeding are the City, the applicant and the two citizen groups.
Standing to Bring the Appeals:
The Hearing Examiner Ordinance in part provides the following language on appeals:
RMC 4-8-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATNE DECISIONS AND
ENVlRONMENTAL DETERMINATIONS: (Amd. Ord. 4827,1-24-2000)
1. Applicability and Authority;
a. Administrative Determinations: My administrative decisions made may be
appealed to the Hearing Examiner, in writing, with the Hearing Examiner,
Examiner'S secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations; Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, whcn any
proposal Of action is granted, conditioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisions of this Section.
c. Authority: To that end, the Examiner shall have aU of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request fOTReconsideration; See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmental Determinations;
Appeals from environmental determinations as set forth in subsection Elb of
this Section OT RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. AJJ.y agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance ofa Threshold
Detennination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor ofrha! person
would substantially eliminate or redress the prejudice to that person caused
or likely to be causcd by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153,9-26-2005)
b. Standing for Appeals of Administrative Determinations other than
Environmental: Appeals from administrative detenninations of the City's
land use regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer. department, board or
bureau of the City affected by such detennination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Hearing Examiner I . ~ion
September 5,2006
Page 3
AIly individual or party of record who is adversely affected by such a
'~cision may appeal the decision to the City's Hearing Examiner pursuant to
~eprocedures established in this Section. (Ord. 4351, 5-4-1992)
d. lpec:ial Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected OT regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
One citizen group is identified as the "Alliance for South End" (hereinafter, ASE). They
challenged two actions:
The Director's decision designating "The Landing" as a planned action;
The Director'S decision approving the Master Plan for "The Landing."
The only member of ASE identified was Brad Nicholson. He lives northeast or the project area.
He drives through the area where the project is proposed. He also uses the nearby Coulon Park.
He has identified traffic as an issue that would affect him. He also identified impacts to the water
quality ofLalce Washington as an issue that concerns him. He also identifies himself as someone
who might shop, work or live in the area that would be developed if The Landing were approved.
It was Mr. Nicholson, as an individual. who challenged the original EIS prepared for the City's
Comprehensive Plan amendments and Zoning Code amendments.
The second group is identified as ''PTogressive Alliance for a Sustainable Southend" (hereinafter,
PASS). This second group appealed three actions:
The Director's decision on the Master Site Plan
The Planned Action decision on the roadwork and utility improvements
The Planned Action decision on "The Landing."
Two PASS members specifically identified are Patrick Kik and Sheila Pratt. Mr. Kik is a member
of United Food and Construction Workers Local 21. which is amcmbcr of PASS. He lives at 530
Burnett Avenue North in Renton, Washington, a few blocks south of the proposed development.
He has resided there since May 1997. He maintained that he wanted to be involved in the review
process. He noted traffic and construction would affect him. Ms Pratt, according to her signed
Declaration, lives at 300 Vennont (sic: Most likely Vuemont) Place Northeast in Renton,
Washington. also a few blocks from the proposed development. She wants to be involved because
anything that occurs on that site would affect her due to her proximity to the proposed
development. Traffic was identified as one area that concerns and would affect her. Her use of
Coulon Memorial Park would be affected by more users, parking dynamics and pollution to Lake
Washington adjacent to the park.
Hearing Examiner Decision
September 5, 2006
Page 4
Since neither appeal was filed by any of the named individuals, the associations or groups they
belong to can only have standing if some member of the association would have standing. Int'l
Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002).
The first group to be considered would be ASE, the group in which Mr. Nicholson is a member.
The attorney representing ASE also represents Westfield, WEA South.center LLC, a business which
owns and operates a large shopping center, Southcenter, located in Tukwila, Washington, a few
miles southwest of the current proposal's location. The business, the attorney admitted is involved
in providing at least some funding for this litigation and is on record (press releases and
announcements -citations omitted) as opposing this development. Both the City and applicant
challenged the standing of ASE based on the association of Westfield with this litigation and its
funding. They challenged ASE as a shell corporation intending to directly impede the subject
proposal by indirect means that Westfield could not do directly. Westfield, as an economic
competitor has no standing to bring an appeal. Evidence presented at the hearing was the
membership application of Mr. Nicholson and the bylaws of ASE.
The membership application contains the following footer text:
"C:IDOCUMENTS AND SEITlNGIPETERlMY
DOCUMENTSIDAT AlDOClWESTFIELDINON PROFITIMEMBERSHJP FORM.DOC"
(Exhibit A, Membership Application -Alliance for South End that Mr. Nicholson submitted for
membership in ASE)
The Bylaws of ASE provide the voting rights of members of ASE:
Section 1.2 Rights ofMembors. The rights of the Members shall be exclusively as follows. and
none of the Member (sic) shall have any other rights whatsoever:
(3) The Members shall have voting rights with regard to the question of whether to
approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the question of whether to
approve a sale, lease. exchange, or other disposition of all, or substantially all, the
property and assets of the corporation not in the ordinary course of business,
pursuant to RCW 24.03.215(1).
(c) The Members shall have voting rights with regard to the question of whether to
approve the voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03.220(1).
(d) The Members shall have voting rights with regard to the question of whether to
approve a plan ofdistnlmtion, pursuant to RCW 24.03.230(1). (Exhibit B)
At the hearing this office in trying to understand the relationship of ASE's members and
specifically Mr. Nicholson's relationship to the litigation and also guided thc litigation asked: "Who
is driving the car?"
Hearing Examiner: SlOn
September 5, 2006
Page 5
Staying with the "who is driving the car" analogy:
Mr. Nicholson has no official say in the course or direction that this litigation will take. He cannot
steer the litigation with any vote he can take. ASE's attorney noted Mr. Nicholson has a say in the
litigation. It is easy to say that he can provide input but there is nothing he can do to control where
it goes. He has no vote in the organization that controls or governs or even gently directs the
appeal. ASE merely uses his "stature" as an affected person to give it standing.
Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice.
The other members could outnumber and outvote him. Except, clearly. those others cannot out
vote him since none of them has a vote.
Steering ahead with this "who is driving" analogy, one has to determine what is being driven.
Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they
have a say. On a public bus they do nol In some cases they can get off (bus) and at other times,
they are on for the ride until it reaches a predetermined destination (airplane). With a bus. the
conveyance may still be driven but no one is onboard any longer. A bus goes to the last stop even
if there is no longer anyone on board. The course of the bus was clear from the start and that's
where the bus goes. Can this litigation continue if there are no riders?
ASE only has standing while there are members and while there are members with standing. that is,
persons with the potential to be injured if they don't get a reasonable resolution of their appeal.
Which itself brings up an interesting point -what if the membership dissolves, that is fades away,
without dissolving ASE officially? Does ASE have any standing if there were no members any
longer even if they or he did exist when the appeal was filed?
The appellants labeled Mr. Nicholson a "poster child" (ASE's response to applicant's motions to
dismiss for lack of standing. Page I) for the type of person within the zone of interest ofSEPA. He
could actually be a "poster child" of a "straw man" for an organization which has no meaningful
substance.
The definition of a "straw man" is: A third party used in
some transactions as a temporary transferee to allow the
principal parties to accomplish something that is otherwise
impermissible." (Black's Law Dictionary, Seventh Edition)
We have a litigant or litigants, if one accepts that there are other members of ASE (although there
was no proofoftheir existence or their individual attributes of standing), who have no control of
the litigation.
The Bylaws of ASE specifically limit the participation, at least, in any voting that might control or
influence the actions of the corporation. An interesting side note is that variously ASE's Attorney
noted that: (I) there were "no members" in its initial filing with the Secretary of State; (2) then in
pleadings indicated that was a mistake and it should have said "no voting members"; (3) but the
.. Hearing Examiner -:ision
September 5, 200b
Page 6
bylaws provide a vote. Allhough as seen above, the vote is very limited and provides no control of
this litigation. A series of mistakes was identified by the parties in some oCthe various filings in
tlus matter. They do cast a bit oca shadow over some of tile evidence.
So as noted above, if there are a number of other members of ASE, Mr. Nicholson would not
necessarily get to call the shots or "drive" the bus or steer the litigation. But there is no evidence
that even a real majority of ASE's members can do anything to conlTOi the course of this appeal.
The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the
members any right to control the appeal. Since ASE filed an appeal and its atlorney continues to
make appearances one has to presume someone or some entity, somewhere is in charge, calls the
shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no votc
on litigation matters nor do any of ASE's "members."
That footer shown above could be somewhat telling in determining who is directing the litigation
on behalf of ASE. Mr. Nicholson'S Membership Application has a footer that identifies,
presumably, that document's computer storage origins. The footer line contains the following text:
"C:\DOCUMENTS AND SETTING/PETERIMY
DOCUMENTSIDAT AfDOCIWESTFIELDINON
PROFITIMEMBERSHIP FORM.DOC"
That footer line would seem to indicate that Westfield's legal business and the ASE association's
litigation might be handled or originate together. It would merge the potential interests of the two.
Again, recalilhat Westfield is a competitor of the underlying applicant for the land use decisions
being challenged. Or the "footer" could be just one more mistake in the way this matter was
handled by Westfield's and ASE's attorney. It might have been a mistake in how the document was
. initially created in whatever word processing software was used. But ASE's attorneys have been
frank. There have been no real attempts to hide the fact that Westfield employs them and actually
pays some of the bills for ASE. But this blending, merging or blWTing of the lines of control all
lead to the inevitable question of who conlrols the litigation and whose interest is being served by
the litigation. Tbe conclusion would appear to be inescapable· Westfield is paying some of the
bills and no one else, neither Mr. Nicholson nor any other individual or majority of ASE has been
identified as being a principle litigant who can direct the litigation of this appeal.
So even if this office were to acknowledge that ML Nicholson might have standing under this
office's nonnal inclination to liberally grant standing to an individual who can show some interest
in a matter, Mr. Nicholson did not file the appeal in his own right. Sticking with our transportation
analogy just a bit longer -Mr. Nicholson hitched his cart to the wrong horse and now has no
control or say in this litigation. Mr. Nicholson has no ability to do much in his "non-voting'.'
capacity as a mere member. But Mr. Nicholson is not alone (if there are other members of ASE) as
no member of ASE or the combined membership of ASE can do anything with this litigation. It
may be unfortunate to preclude Mr. Nicholson's right to have his standing ascertained or appeal
heard but he ti'cd his rights, if any, to an associ ation that granted him no rights to direct litigation.
He chose that course rather than file an appeal in his own right.
Hearing Examiner Deci,sion
September 5, 2006
Page 7
While one generally "pierces the corporate veil" to get at underlying persons or assets, it is
generally done so that justice can prevail. Discard the cOYporate veil in this case and what we find
is a competitor, Westfield Corporation. They own the nearby Southcenter Shopping Center. They
appear to be paying a good portion of the litigation, employ the attorney who is representing ASE
and may havc control over the litigation. Although, this office finds no evidence that Westfield .
controls the litigation, this office finds that no one really seems to control ASE and the attorneys in
this maller. ASE, again, has no voting members controlling the appeal. The bylaws provide the
ASE membership with a limited range of power and none that go to the heart of who controls this
litigation.
In SODERBERG ADV. v. KENT-MOORE CORP. 11 Wn. App. 721, 734, 524 P.2d 1355 (1974)
the court found:
" The court could conclude from the evidence here and reasonable inferences
therefrom that ICM used its undue domination and control, through KM personnel
with a primary loyalty to KM, to obtain and then avoid payment for essential
services from which KM expected to receive great benefit. The domination was
so complete that "the controlled coYpoTation [had], so to speak, no separate mind,
will or existence ofits own and [was] but a business conduit for its principal." I
W. Fletcher, Private C01pOrations § 43, at 205 (perm. cd. rev. 1963). In Seattle
Ass'n of Credit Men v. Daniels, 15 Wn.2d 393, 396,130 P.2d 892 (1942), the court
in diSCUSSing the doctrine of disregard quoted the following with app,oval from
Pittsburgh Reflector Co. v. Dwyer & Rhodes Co., 173 Wash. 552, 555,23 P.2d 1114
(1933):
"In order to justify the judicial disregard of corporate identities, one, at least, of two
things must clearly appear. Either the dominant corporation must control and use the
other as a mere tool or instrument in Carrying out its own plans and pmposes so that
justice requires that it be held liabJe for the results, or there must be such a confusion
of identities and acts as to work a fraud upon third persons." Even ifboth things must
be shown as suggested in Sommer v. Yakima Motor Coach Co., 174 Wash. 638, 26
P .2d 92 (1933) (decided prior to Seattle Ass'n of Credit Men v. Daniels, supra), the
court could and did conclude from the evidence that both things had been proved.
Footnote 1, supra. See 1.1. Case Credit Corp. v. Stark, SUpTa at 475. See also Forest
Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23,29 So. 2d 298 (1947); Linco Servs., Inc.
v. DuPont, 239 Cal. App. 2d 841, 49 Cal. Rptr. 196 (1966); Dillard & Coffin Co. v.
Richmond Cotton Oil Co., 140 Tenn. 290, 204 S.W. 758 (1918). KM in good conscience
can scarcely complain if the trial court determined that to recognize the separate entity
ofPK under the peculiar circumstances here would in effect place the court in the untenable
position of assisting in the accomplishment of a breach of duty owing to plaintiff."
As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization
without standing have found that no individual member had sufficient standing on their own right.
Or the claims made on behalf of the association were too personal to the members and could not be
Hearing Examiner n~~ision
September 5, 2006
Page 8
attached to an association. But those cases that fOlmd a lack of standing can still be elucidating.
Here we have an organization in which no member can call the shots.
See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 866-67,576
P.2d 401 (1978); Lujan v. Defenders oiWildlifc, 504 U.S. 555,561, 112 S.C!. 2130, 2136,119
L.Ed.2d 351 (1992). International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146
Wn.2d 207,213-14,45 P.3d 186 (2002); Des Moines Marina Ass'n v. City of Des Moines, 124 Wn.
App. 282, TIMBERLANE v. BRAME 30979 Wn. App. 303, 901 P.2d 1074.
This office finds that ASE does not have standing. It is a mere shell created by the applicant's
potential competitor, SouthcenterfWestfield for the purpose of thwarting a competitor's proposed
development.
This brings us to the standing of PASS. Since the underlying nature of the association was never
challenged nor evidence produced to make it suspect as to its aims, it would appear that PASS has
members who individually could have standing and as such, PASS has standing to bring its appeal
or appeals. Thc two identified members both live close to the proposed projecl They could be
affected by the traffic generated by the proposed development. TIley could be affected by the
construction ofthe project itself. One of them uses a park that could further be affected by
additional residents that would occupy proposed residences. Those interests appear to be within
the zone ofinterests the appeal provisions were intended to protect. Thc increased traffic could
slow down their respective commutes, increase roadway congestion and possibly lead 10 increased
risk of accidents. They could suffer injury in fact It will be up to the appellants to prove their case
to prevail in obtaining the remedy they seek but they have the right to present a case for review.
Jurisdiction to Hearing the Appeal:
Repeating again for clarity, the Hearing Examiner Ordinance in part provides the following
language on appeals:
RMC 4-8-11 0(E}(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
1. Applicability and Authority:
a. Administrative Detenninations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing. with the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action. is granted, conditioned, or denied on the basis of SEP A by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under thc provisions of this Section.
Hearing Examiner D-~ision
September 5, 2006
Page 9
c. Authority: To that end, the Examiner shall have all of the powers ofrhe
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals ofrhe City's Environmental Determinations:
Appeals from environmental detenninations as set forth in subsection Elb of
this Section or RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer. department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance of a Threshold
Determination. A person is aggrieved when all of the followin:g conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Stancling for Appeals of Administrative Determinations other than
Environmental; Appeals from administrative determinations of the City's
land usc regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, department, board or
bureau of the City affected by such determination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Any individual or party of record who is adversely affected by sueh a
decision may appeal the decision to the City's Hearing Examiner pursuant to
!he procedures established in this Section. (Ord. 4351,5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
It appears on the face of the appeal that the action or actions challenged were those of the Director.
Those appear to be the type of decisions that fall within thc jurisdiction of the Hearing Examiner.
Thc appeal of PASS may proceed with the following guidance: The party may not challenge the
underlying ordinance (Ordinance 5107) since this office cannot review decisions of the City
Council. The Planned Action and Master Plan decisions of the Director can be challenged.
.. Hearing Examiner D~cision
September 5, 2006
Page 10
Decision:
The appeal of ASE is dismissed, as they have no standing.
The appeal of PASS may proceed to arguments on the merits.
ORDERED TIDS 5!b day of September 2006.
HEARING EXAMINER
TRANSMITTED THIS 5th day of September 2006 to the parties of record:
Zanetta Fontes Peter Buck Jerome L Hillis
Warren Barber & Fontes, P.S.
PO Box 626
Renton, WA 98057
Buck & Gordon LLP
2025 First Ave, Suite 500
Seattle. WA 98121
Hillis Clark Martin & Peterson, P.S.
500 Galland Building
1221 Second Avenue
Seattle, WA 98101
Brad Nicholson Claudia M. Newman
Bricklin Newman Dold LLP
1001 Fourth Ave., Ste. 3303
Seattle, WA 98154
2811 Dayton Avenue
Renton, WA 98056
King County Journal Newspaper
Attn: Dean Radford
600 Washington Ave S
Renton Reporter
Attn: Oscar Halpert
POBox 130
Kent, W A 98032
Kent, WA 98032
TRANSMITTED THIS 5 th day of September 2006 to the following:
Mayor Kathy Keolkcr
Jay Covington, CAO
Julia Medzegian, Council Liaison
Gregg Zimmennan, PBPW Administrator
Alcx Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King County Journal
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Neil Walts. Development Services
Janet Conklin, Development Services
Hearing Examinerf 'sion
September 5, 2006
Page 11
Pursuant to Title IV, Chapter 8, Section 100GDfthe City's Code, request for reconsideration
must be filed in writing on or before 5:00 P.m., September 19. 2006. Any aggrieved person
feeling that the decision of the Examiner is ambiguous or based on erroneous procedlU'e, errors of
law or fact, error in judgment, or the discDvery of new evidence which could not be reasonably
available at the prior hearing may make a written request fOT a review by the Examiner within
fourteen (14) days from the date of the Examiner's decision. This request shall set forth the specific
ambiguities or errors discovered by such appellant, and the Examiner may, after review of the
record, take further action as he deems proper.
Au appeal to the City Council is govcrned by Title IV, Chapter 8, Section 110, which requires that
such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other
specified requirements. Copies of this ordinance are available for inspection or purchase in the
Finance Department, first floor of City Hall. An appeal must be fUed in writing on or before
5:00 p.m., September 19. 2006.
If the Examiner's Recommendation or Decision eontains the requirement Cor Restrictive
Covenants, the executed Covenants will be required prior to approval by City Conncil or
final processing oethe IDe. You may contact this office for information on formatting
covenants.
The Appearance ofFaimess Doctrine provides that no ex parte (private one-on-one)
communications may occur concerning pending land use decisions. This means that parties to a
land use decision may not communicate in private with any decision-maker concerning the
proposal. Decision-makers in the land use process include both the Hearing Examiner and
members of the City Council
All communications concerning the proposal must be made in public. This public communication
pennits all interested parties to know the contents of the communication-and would allow them to
openly rebut the evidence. Any violation ofthis doctrine would result in thc invalidation of the
request by the Court.
The Doctrine applies nOI only to the initial public hearing but to all Requests for Reconsideration as
well as Appeals to the City Council.
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In the Matter of the Appeal of
Alliance for South End CASE) and
Brad Nicholson re:
The Director's Administrative Site Plan
Approval.
No. LUA-06-071, SA-A
CERTIFICATE OF SERVICE
12 I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson,
13 P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. I hereby certify that
14 on the 12tb day of January 2007, I caused to be delivered via legal messenger a true and
15 correct copy of Applicant Harvest Partners (1) Motion to Dismiss ASE and Nicholson
16 Appeals Of The Director's Interpretation/Policy Decision for Lack of Jurisdiction;
17 (2) Motion to Dismiss ASE And Nicholson Appeals From The Landing Administrative Site
18 Plan Approvalfor Lack of Standing; and (3) this Certificate of Service to the following:
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Mr. Fred Kaufman, Hearing Examiner
City of Renton
1055 South Grady Way
Renton, WA 98055
Lawrence 1. Warren, City Attorney
Warren Barber & Fontes, P.S.
100 South Second Street
Renton, WA 98057
Brad Nicholson
clo Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
Certificate of Service -Page 1 of 2
Office of the Clerk
City of Renton
1055 South Grady Way
Renton, WA 98055
Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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DATED this \2.-11'\. day of January, 2007.
#345401 18449-004 7#$hOI!.doc II12{07
Certificate o/Service -Page 2 0/2
HILLIS CLARK MARTIN &
PETERSON, P.S.
GinaC. Pan
Legal Assistant to T. Ryan Durkan
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
November 7,2006
Zanetta Fontes
Ann Nielsen
Warren Barber & Fontes, P.S.
POBox 626
Renton, W A 98057
Peter Buck
Buck & Gordon
2025 First Avenue, Ste. 500
Seattle, W A 98121
Jerome L. Hillis
Hillis Clark Martin & Peterson, P .S.
500 Galland Building
1221 Second Avenue
Seattle, W A 9810 I
Re: Appeal of the Site Plan Approval and InterpretationIPolicy Decision.
(LUA-06-071, SA-A)
Dear Counsel:
Hearing Examiner
Fred J. Kaufman
Please be advised that as previously agreed to among the parties during the Pre-Hearing
Conference in the above matter the following dates with their respective requirements were set:
January 12, 2007
January 26, 2007
February 2, 2007
February 13, 2007
March 27 & 29, 2007
All Motions are to be filed
Responses to Motions to be served
Replies to responses to be served
Oral argument on all Motions to be heard
Hearing on Merits
If this office can provide any further assistance, please address those comments in writing.
Sincerely,
1lC&~U~J/~
Nancy Thompson
Secretary to Hearing Examiner
City of Renton
----IO-S-S-S-ou-th-G-r-a-dy-W-ay---R-e-nt-on-,-W-as-h-in-gt-o-n-9-g-0S-S---(4-2-S)-4-3-0--6S-1-S----~
~ This paper contaIns 50% recycled material, 30% post consumer
AHEAD OF THE CURVE
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In the Matter of the Appeals of
Alliance for South End CASE) and
Brad Nicholson re:
The Director's Administrative
Site Plan Approval.
I.
LUA-06-071, SA-A
APPLICANT'S MOTION TO DISMISS
ASE AND NICHOLSON APPEALS FROM
THE LANDING ADMINISTRATIVE
SITE PLAN APPROVAL FOR
LACK OF STANDING
RELIEF REQUESTED
13 Applicant Harvest Partners seeks an order from the Hearing Examiner dismissing the
14 appeals of Alliance for South End CASE) and Brad Nicholson, dated August 31, 2006,
15 pertaining to the City of Renton's administrative decision approving Harvest Partner's Site
16 Plan for The Landing. The appeals should be dismissed for lack of standing.
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II. OVERVIEW
This case represents another attempt by ASE, a front group funded by a competing
shopping mall, to stop an economic competitor from locating in the City of Renton. This
time, ASE is challenging the Site Plan Approval for The Landing. In an attempt to correct its
lack of standing identified by the Hearing Examiner in ASE's prior appeals, ASE also
includes the name of its one known member, Brad Nicholson, in the caption of this appeal.
However, due to numerous flaws, Mr. Nicholson has failed to perfect his appeal.
Furthermore, although this appeal purports to be an appeal of the Site Plan Approval, all
assertions of standing stem from claims wholly unrelated to the Site Plan Approval, and the
generalized claims are insufficient to establish injury in fact. The Examiner should dismiss
the appeals for lack of standing.
Motion to Dismiss Appeals of
Site Plan Approval -Page 1 of 11 ORIGINAL
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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III. STATEMENT OF FACTS
A. ASE Appeals the City of Renton's Approval of The Landing Site Plan
On August 17, 2006, the City of Renton Department of Planning, Building and Public
Works issued a decision approving the Site Plan for The Landing, an approximately
572,700-square foot commercial/retail development to be constructed on a 38.22-acre site
within the Urban Center-North I (UC-NI) zone in Renton, Washington (the "Site Plan
Approval"). The City had previously approved the master plan for The Landing project, and
determined that The Landing project was consistent with the adopted Planned Action
Ordinance. I
On August 31, 2006, "Alliance for South End" ("ASE"), a Washington nonprofit
corporation, filed an appeal of the Site Plan Approval.2 Although Mr. Nicholson's name is
also included in the caption of the appeal, neither Mr. Nicholson, nor an attorney for
Mr. Nicholson, signed the appeal. Only Peter Buck, an attorney with Buck & Gordon LLP,
signed the appeal as "Attorneys for Alliance for the South End." In addition, only ASE, not
Mr. Nicholson, submitted a request for relief in the "Conclusion" section of the appeal. ASE
Appeal, at 9. Finally, only one filing fee was submitted for the appeal, by the attorneys for
ASE. See City of Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's
Administrative Site Plan Approval. Neither Mr. Nicholson, nor an attorney for Mr.
Nicholson, submitted a filing fee for his supposed appeal. Finally, the appeal cites no direct
injury in fact; rather, it contains only abstract, general assertions of standing for ASE and Mr.
Nicholson. ASE Appeal at 2-4.
1 The master plan approval and planned aclion designalion for The Landing encompassed a larger site than
is the subject of this Site Plan Approval. For purposes of this appeal, "The Landing" is defined to include only
the development and site approved in the Site Plan Approval.
2 On the same date as this appeal, ASE also appealed an Interpretation/Policy Decision made by the City of
Renton arising out ofa proposed Lowe's store devclopmcnllocated east of The Landing site, LUA-05-161,
SA-H, SA-M, ECF. Mr. Nicholson's name also appears in that appeal. Because the appeals were not
consolidated, the Applicant has filed separate motions to dismiss each of the appeals.
Motion to Dismiss Appeals of
Site Plan Approval -Page 2 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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B. Corporate Status of ASE
ASE is a Washington nonprofit corporation established in May of2006 by the attorney
for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall. In May
and June 2006, ASE filed appeals of the City's master plan approval for The Landing, and the
City'S determination that The Landing was consistent with the adopted Planned Action
Ordinance. In the course of those appeals, and based upon ASE's official filings with the
Washington Secretary of State's office, the Applicant gathered the following facts related to
ASE's corporate status:
• As of the date of the hearing on dispositive motions for those appeals, ASE had
only one named member, Brad Nicholson.
• Mr. Buck, an attorney whose law firm represents Westfield, served as ASE's
initial Director, President, Incorporator and Secretary.
• ASE replaced Mr. Buck with a new Director and President, Margaret Potter.
Ms. Potter is a former employee of Buck & Gordon, the firm representing
Westfield.
• Westfield is funding ASE's litigation.
• According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to
the Applicant on the eve ofthc hearing on ASE's previous appeals, ASE's
members had very limited rights overall, and had no rights whatsoever in terms
of directing the course of ASE's litigation. A copy of the excerpt from ASE's
Bylaws is attached hereto as EXHIBIT A and incorporated herein by this
reference.
Based on these facts and standing jurisprudence, on September 5, 2006, the City of
Renton Hearing Examiner dismissed both of ASE's appeals for lack of standing. A copy of
the Hearing Examiner's decision is attached hereto as EXHIBIT B and incorporated herein by
this reference (the "Hearing Examiner Decision").
Motion to Dismiss Appeals of
Site Plan Approval -Page 3 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
SeaUie WA 98101-2925
206.623.1745; fax 206.623.7789
At a pre-hearing conference on this appeal, ASE was asked whether anything
2 pertaining to standing had changed. No additional information has been provided; therefore,
3 this motion is based on facts of record.
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IV. ARGUMENT
A. Mr. Nicholson Is Not a Proper Party Because He Lacks Standing.
1. Appellants must establish standing as to the Site Plan Approval.
Standing must be established as to each and every claim. See DaimlerChrysler
Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial
examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled
to an adjudication of the particular claims asserted."). Therefore, it is important to first
identify the particular claims in the appeal, and then determine whether the appellant has
presented evidence sufficient to establish standing for each of those claims.
This is an appeal of the City of Renton's Site Plan Approval for The Landing. Site
plan review is one distinct stage in the City of Renton's development plan review process,
occurring subsequent to master plan review and the environmental review. Unlike earlier
stages where overall project concepts and environmental impacts are analyzed, the site plan
review is focused on specific details of the project. According to the Renton Municipal Code,
"The purpose of the Site Plan process is the detailed arrangement of project elements so as to
be compatible with the physical characteristics of a site and with the surrounding area."
RMC 4-9-200.A.2 (emphasis added). Therefore, in order to establish standing, ASE and
Mr. Nicholson must demonstrate that they have suffered or will suffer a direct, concrete,
particularized injury in fact arising out of this Site Plan Approval. Any assertions of standing
based upon the overall project concepts or environmental impacts -including those such as
traffic, water quality, aesthetics or any other "impact" related to the master plan review and
environmental review stages -are insufficient to establish standing for purposes of this
appeal.
Motion to Dismiss Appeals of
Site Plan Approval -Page 4 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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Here, there is no relationship between Mr. Nicholson and the challenged action such
that Mr. Nicholson has standing to bring this appeal. Mr. Nicholson does not assert, nor could
he possibly assert, that he is directly damaged in any way by the Site Plan Approval. The
supposed basis for Mr. Nicholson's alleged harm is simply too remote and indirect to the Site
Plan to establish standing, as discussed below.
2_ Mr. Nicholson has not met his burden to show injury in fact.
To establish standing, the appellant bears the burden of demonstrating that he will be
specifically and perceptibly harmed by the challenged action of approving the detailed
arrangement of the Site Plan; in other words, the appellant must show a "direct stake" in the
Site Plan Approval. See Concerned Olympia Residents for the Environment (c. 0. R. E,) v.
City of Olympia, 33 Wn. App. 677, 684, 657 P.2d 790 (1983). When alleging a threatened
injury, the appellant must present sufficient evidentiary facts to show that a threatened injury
is "immediate, concrete, and specific to him or herself. If the injury is merely conjectural or
hypothetical, there can be no standing." Trepanier v. City of Everett, 64 Wn. App. 380, 383,
824 P.2d 524 (J 992). A mere assertion of injury, without factual support, is not sufficient to
demonstrate an injury in fact. Id. at 384.
The requirement that the appellant demonstrate his "direct stake" in the controversy
consequently means that generalized grievances are insufficient to establish standing. Courts
have consistently held that there be a particularized injury, specific to the appellant:
It is an established principle ... that to entitle a private individual to invoke the
judicial power to determine the validity of executive or legislative action he
must show that he has sustained or is immediately in danger of sustaining a
direct injury as the result ofthat action and it is not sufficient that he has
merely a general interest common to all members of the public.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992), quoting Ex parte Levitt,
302 U.S. 633 (1937).
Here, Mr. Nicholson fails to present any evidentiary facts to show that he suffers an
injury that is immediate, concrete, and specific to himself as a result of the Site Plan, which
relates only to the arrangement of the elements on the site. Mr. Nicholson presents no
Motion to Dismiss Appeals of
Site Plan Approval -Page 5 of II
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seatlie WA 98101-2925
206.623.1745; fax 206.623.7789
evidence whatsoever of his "direct stake" in the Site Plan and makes no specific claims of
2 actual or threatened injury to his person or property arising out of the Site Plan ApprovaL
3 Instead, Mr. Nicholson relies on generalized assertions of injury that couId be raised
4 by any citizen ofthe City or, indeed, any member of the public, Furthermore,
5 Mr. Nicholson's supposed "injuries" could not possibly arise from the Site Plan Approval, the
6 only approval at issue in this appeaL For example, Mr. Nicholson states that he will suffer
7 injury in fact due to the "increased traffic" and "decreased water quality" arising from the
8 "unanalyzed and unmitigated traffic and storm water impacts," ASE Appeal at 4, Not only do
9 these generalized grievances have no direct link to Mr. Nicholson, but such claims have no
10 direct link whatsoever to the source of the appeal -the Site Plan Approval. These claims of
11 unanalyzed environmental impacts, or flaws in the overall project concepts, do not arise from
12 the Site Plan ApprovaL These claims are therefore inappropriate for this appeal, and any
13 assertion of standing on the basis of these claims is inappropriate and insufficient to establish
14 standing for this appeaL Examination of all of the asserted justifications for standing, by
15 Mr. Nicholson and ASE, reveals that not one of the supposed injuries in fact actually arises
16 from the Site Plan ApprovaL ASE is simply trying to collaterally attack the Master Plan,
17 which appeal was dismissed due to ASE's own errors. Such a collateral attack is not
18 permitted, See Habitat Watch v. Skagit County, 155 Wn.2d 397, 411, 120 P.3d 56 (2005),
19 B. Mr. Nicholson Is Not a Proper Party Because He Has Not Perfected an Appeal.
20 In addition to Mr. Nicholson's lack of standing, the appeals should be dismissed due
21 to Mr. Nicholson's failure to perfect an appeal, and due to ASE's failure to establish
22 associational standing, The arguments presented in this Part IV,B (regarding Mr, Nicholson's
23 failure to perfect an appeal), and the arguments presented below in Part IV,C (regarding
24 ASE's lack of standing), are essentially the same as the arguments presented in Applicant's
25 Motion to Dismiss ASE and Nicholson Appeals of the Director's InterpretationIPolicy
26 Decision for Lack of Jurisdiction, filed on the same date as this motion, Because the appeals
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Motion to Dismiss Appeals of
Site Plan Approval -Page 6 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
were not consolidated, the Applicant has filed separate motions to dismiss each of the appeals.
2 For the Examiner's convenience, the arguments are repeated below.
3 Even if Mr. Nicholson did have standing to bring this appeal, and even if Mr.
4 Nicholson intended to appeal the Site Plan Approval, the appeal filed by ASE was
5 nevertheless inadequate to also serve as Mr. Nicholson's appeal. Analogous court rules make
6 clear that all pleadings, including appeals, should include the names, addresses, and
7 Washington State Bar Association membership numbers of the attorneys for each party, if
8 any, and should be signed and dated by the attorneys or the parties. See, e.g., RAP 5.3, 18.7;
9 see also CR 11.
10 Here, although Mr. Nicholson's name is listed in the caption of the appeal, there is no
II signature block for Mr. Nicholson or his attorney. The appeal only contains the signature of
12 the attorney for ASE. The "Conclusion" in the appeal, in which ASE submits its specific
13 request for relief, omits Mr. Nicholson's name as well. Finally, only ASE paid the filing fee
14 for the appeal; Mr. Nicholson did not pay a filing fee.
15 Without a signature by Mr. Nicholson or on Mr. Nicholson's behalf, without a specific
16 request for relieffrom Mr. Nicholson, and without a filing fee paid by Mr. Nicholson, there is
17 no evidence to suggest that Mr. Nicholson or his attorney approved of the appeal, or intended
18 to file this appeal at all. Indeed, the absence of Mr. Nicholson's personal seal of approval
19 anywhere in this appeal, whether by signature, request, or payment of the fee, can only lead
20 one to the conclusion that Mr. Nicholson, the sole named member of ASE, did not perfect an
21 appeal. It is also further evidence that he is not in control of this litigation.
22 In addition to the arguments set forth above, the Applicant joins in the City of
23 Renton's Motion to Dismiss Appeal of Brad Nicholson of the Director's Administrative Site
24 Plan Approval for Lack of Jurisdiction Due to Nicholson's Failure to Perfect His Appeal,
25 which motion is incorporated herein by this reference.
26 Mr. Nicholson is not a proper party to this appeal. However, even if Mr. Nicholson is
27 deemed a party, he has not met his burden of proof to establish standing. The Applicant
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Motion to Dismiss Appeals of
Site Plan Approval -Page 7 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
respectfully requests that the Examiner dismiss the appeal from the City of Renton's Site Plan
2 Approval as to Mr. Nicholson.
3 C.
4
ASE Lacks Associational Standing.
1. ASE has the burden to establish associational standing.
5 In order to appeal an administrative decision, an appellant must have standing.
6 RMC 4-8-11 O.EJ.b. A party asserting standing bears the burden of establishing the elements
7 of standing. Co.R.E., 33 Wn. App. at 683. The appellant must demonstrate an injury in fact,
8 and must also show that its allegedly endangered interest is within the "zone of interest" to be
9 protected or regulated. Trepanier, 64 Wn. App. at 382-83.
lOAn association only has standing to bring suit on behalf of its members if its members
II would otherwise have standing to sue in their own right. Int 'I Ass 'n of Firefighters,
12 Local 1789 v. Spokane Airports, 146 Wn.2d 207,213,45 PJd 186 (2002). In determining
13 whether associational standing exists, the U.S. Supreme Court has looked to whether the
14 alleged "members" of an association possess certain "indicia of membership" in the
15 organization. Hunt v. Wash. State Apple Adver. Comm 'n, 432 U.S. 333, 344-45 (1977).
16 This "indicia of membership" analysis often turns upon whether the individuals
17 making up the association have the ability to guide the association's actions or exert control
18 over the association's directors. See, e.g., Friends of Tilden Park v. Dist. of Columbia,
19 806 A.2d 1201,1208 (D.C. 2002). By focusing on whether the association possesses the
20 "indicia of membership," courts are able to analyze whether the alleged "member" actually
21 has control, or is merely a puppet for other interests.
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2. The Hearing Examiner previously held that ASE lacked
associational standing.
Applying the associational standing test to the first round of ASE appeals, the Renton
Hearing Examiner determined that ASE had not met its burden of proof to establish standing.
Hearing Examiner Decision, Ex. B, at 8. The Examiner determined that Mr. Nicholson, the
sole named member of ASE, lacked any meaningful control in the organization. Hearing
Examiner Decision, Ex. B, at 5. Therefore, the Examiner held, ASE failed in demonstrating
Motion to Dismiss Appeals of
Site Plan Approval -Page 8 of II
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
associational standing: 'This office finds that ASE does not have standing. It is a mere shell
2 created by the applicant's potential competitor, Southcenter/Westfield for the purpose of
3 thwarting a competitor's proposed development." Hearing Examiner Decision, Ex. B, at 8.
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3. ASE has presented no evidence that its member(s) have meaningful control
over ASE.
Despite requests by the City at the pre-hearing conference, ASE has not yet presented
evidence sufficient to meet its burden of proof Indeed, as of the date ASE filed this appeal,
the evidence suggests that the facts have not changed since ASE's first round of appeals.
ASE is still funded and controlled by Westfield, and is still represented by Westfield's law
firm, Buck & Gordon. ASE has still provided evidence of only one alleged member, Brad
Nicholson. Based upon the only portion of ASE's Bylaws that it has provided, the two-page,
undated and unsigned "excerpt," its members' rights remain extremely restricted such that the
members are left with no meaningful control over the organization or the course of this
litigation. See Bylaws, Ex. A.
The Examiner must determine if ASE has carried its burden to establish associational
standing based on the evidence provided in the record. ASE has failed to produce any new
evidence to support its associational standing. There remains no evidence whatsoever that
ASE is controlled by a member with standing.
4. ASE has not met its burden to show injury in fact.
Even if ASE was able to demonstrate that it had associational standing to bring this
appeal on behalf of its members, the association also bears the burden of establishing that its
members, if any, meet the elements of standing.
Here, ASE has also failed to demonstrate that its members suffer an injury in fact.
While the ASE appeal contains general assertions of injury, it does not contain supporting
evidentiary facts to establish a specific, concrete injury to its members arising out of the Site
Motion to Dismiss Appeals of
Site Plan Approval -Page 9 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101·2925
206.623.1745; fax 206.623.7789
Plan Approval. J Mr. Nicholson is the only known member of ASE, yet ASE has fallen far
2 short of its burden of establishing that Mr. Nicholson has standing. As detailed in Part IV.A.2
3 above, neither ASE nor Mr. Nicholson has presented evidence to demonstrate that Mr.
4 Nicholson has suffered or will suffer a concrete, particularized injury arising out of the Site
5 Plan Approval. By failing to present any evidence of injury in fact to its member, ASE has
6 failed to establish standing.
7 V. CONCLUSION
8 The parties to an appeal must have standing as to each and every claim asserted in
9 their appeal. Mr. Nicholson, as a purported appellant, must have standing in his own right
10 and must perfect his appeal by following the rules. Mr. Nicholson only asserts generalized
II grievances without any evidence of particularized harm arising out of the Site Plan Approval,
12 and thus has not established that he has standing to bring this appeal. Furthermore,
\3 Mr. Nicholson's failure to sign the appeal, and Mr. Nicholson's failure to pay a filing fee,
14 suggest that Mr. Nicholson had no intent to file this appeal. By failing to file a proper appeal,
15 Mr. Nicholson is not a party to this appeal. Mr. Nicholson's appeal must therefore be
16 dismissed.
17 ASE has the burden of proof to demonstrate its associational standing. An association
18 that brings suit on behalf of its members bears the burden of establishing that its members
19 with standing have meaningful control in the association. The Hearing Examiner dismissed
20 ASE's prior appeals for lack of associational standing, and ASE has failed to present
21 additional evidence that the status of its members has changed. Further, ASE has failed to
22 demonstrate that it has suffered an injury in fact. Because ASE has failed to carry its burden,
23 its appeal must be dismissed.
24 For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
25 of Renton's Site Plan Approval should be DISMISSED.
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3 The appeals should be dismissed on the basis of the pleadings and undisputed facts; however, movant
28 hereby reserves the right to request discovery based on any responses that ASE or Mr. Nicholson may file.
Motion to Dismiss Appeals of
Site Plan Approval -Page 10 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
'p-,
OATEDthis /9 day ofJanuary, 2007.
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Molion 10 Dismiss Appeals of
Site Plan Approval -Page 11 of 11
HILLIS CLARK MARTIN &
PETERSON, P.S.
BYl
Jerome L. Hil IS, WSBA # 1704
T. Ryan 0' an, WSBA #11805
Karen O. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S,
500 Galland Building. 1221 Second Ave
Seatue WA 98101-2925
206.623.1745; fax 206.623.7789
Excerpt of Bylaws for ASE
BYLAWS
OF
ALLIANCE FOR SOUTH END
ARTICLE 1
MEMBERSHIP
Section 1.1 Election of Members. The members of the
corporation ("Members") shall consist of individuals, domestic or foreign
profit or nonprofit corporations, general or limited partnerships,
associations or other entities (each, a "Person") that have each of the
following qualifications, as determined by the board of directors in its
sole discretion:
(a) The Person will support the purposes of the corporation and
will not have a conflict with supporting the purposes of the corporation.
(b) The Person has paid dues to the corporation in such amounts
and at such times as the board of directors may establish by resolution.
( c) The Person has made such applications or entered into such
agreements as the board of directors may require.
(d) The Person has been elected as a Member by the board of
directors at any meeting thereof.
Section 1.2 Rights of Members. The rights of the Members
shall be exclusively as follows, and none of the Member shall have any
other rights whatsoever:
(a) The Members shall have voting rights with regard to the
question of whether to approve a plan of merger or consolidation,
pursuantto RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the
question of whether to approve a sale, lease, exchange, or other
disposition of all, or substantially all, the property and assets of the
corporation not in the ordinary course of business, pursuant to RCW
24.03.215(1).
(c) The Members shall have voting rights with regard to the
question of whether to approve the voluntary dissolution and winding up
of the corporation, pursuant to RCW 24.03.220(1).
1 of2 pages EXHIBIT A --
(d) The Members shall have voting rights with regard to the
question of whether to approve a plan of distribution, pursuant to RCW
24.03.230(1).
Section 1.3 Certificates of Membership. Certificates of
membership in the corporation may be issued. If issued, they shall be
numbered, and the respective Members' names shall be entered in the
membership register of the corporation as the certificates are issued.
Certificates, if any are issued, shall bear the Member's name and shall be
signed by the president or the secretary.
Section 1.4 Status of Membership. Membership in the
corporation shall be personal, shall not survive the death of any individual
Member, and may not be transferred by operation of law or by any other
means.
Section 1.5 Termination of Membership. Membership in the
corporation may be terminated (a) for any action by a Member that is
detrimental to the best interests of the corporation, (b) or for failure to
actively support corporate purposes, or to actively participate in corporate
activities, or (c) for failure continually to meet the qualifications of a
Member pursuant to Section 1.1 of these Bylaws. Removal shall require
the affirmative vote of the board of directors. In the event that any such
termination is contemplated, the board of directors shall notify the
Member in a record of the reasons for the proposed action, and of the
time and place of the meeting of the board of directors at which
termination is to be considered, not later than ten (10) days prior thereto.
Prior to the meeting, the subject Member shall be entitled submit written
responses to the stated reasons for termination. At the option of the
Board, the termination may be immediate, without prior notice, but with
full post termination appeal proceedings.
2 of2 pages
September 5, 2006
DECISION OF THE HEARING EXAMINER ON
MATIERS OF STANDING AND JURISDICTION BROUGHT BY
ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND
PROGRESSIVE ALLIANCE FOR A SUSTAINABLE SOUTHEND (PASS)
While some background may help frame this decision, elaborate details and history need not be
provided at this time as the only issues currently are wheth.er the parties have standing to bring
challenges of the City's actions and whether the Hearing Exanliner has jurisdiction to hear the
challenges if the parties do have standing.
This matter concerns City decisions regarding The Landing, a land use project proposed for
approximately 47 acres in north Renton. The land, in the main, was propeny used by the Boeing
Company for its airplane business and vacated as the company consolidated its operations toward
the north and west With the potential for the land to be developed or redeveloped the City of
Renton conducted an enviromnental review of proposed changes to its Comprehensive Plan and
Zoning Code and potcntialland use changes for the: property. The City issued an Environmental
Impact Statement (ElS). The adequacy of the ElS was appealed and after a public hearing on the
appeal, the appeal was denied. The appellant in that matter is a member of one of two groups
challenging eurrent decisions regarding the current proposal.
Subsequently, Boeing sold off some of the acreage and a developer offered a development plan.
The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. That
ordinanee designated as Planned Actions uses and activities described in the FElS and subject to
mitigation measures that had been separately proposed as part of a Development Agreement
originally agreed to by Boeing and llie City .. That ordinance further allowed changes to that or
other proposals that fell within the scope and character of the original plan. The original developer
abandoned their original plans and the property changed hands to the current applicant. New plans
were submitted and found by the Director of Development Services (Director) to be in
confonnance with the original Planned Action. The proposal was approved as a Planned Action
and the Master Site Plan was approved. These actions by the director apparently removed any need
for subsequent public hearings or cnvironmental analysis of the new proposal. An appeal of thc
City's proposed infrastructure improvements in thc area where the subject proposal would be
developed had been initially filed but was withdrawn.
Two separatc citizen groups filed appeals ofthe City'S action or actions. No individual filed an
appeal on his or her own behal(
The City and the underlying applicant, Harvest Partners (Applicant), challenged the standing of the
two groups that brought the appeals. At a Pre-hearing Conference the issue of standing as well as
the Examiner's jurisdiction to hear the appeals were defmed as issues to be resolved prior to any
public hearing on the merits ofllie appeal or appeals. The various parties SUbmitted motions and
responses and oral argument was heard on the motions.
EXHIBIT -.:.B~
Hearing Examine clSlon
September 5, 200_
Page 2
The parties to the proceeding are the City, the applicant ilI1d the two citizen groups.
Standing to Bring the Appeals:
The Hearing Examiner Ordinance in part provides the following language on appeals:
RMC 4-8-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATNE DEcrSIONS AND
ENVlRONMENTAL DETERMlNA TrONS: (Amd. Ord. 4827,1-24-2000)
1. Applicability and Authority:
a. Administrative Determinations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing, with the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action is granted, condilioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisions of this Section.
c. Authority: To that end, the Examiner shall have all of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmental Determinations:
Appeals from environmental determinations as set forth in subsection E1 b of
this Section or RMC 4-9-070N may be taken 10 the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance ofa Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Detennillations other than
Environmental: Appeals from administrative determinations of the City's
land use regulation codes and from environmental determinations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer, department, board or
bureau of the City affected by such detennination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Hearing Examiner
September 5,2006
Page 3
d.
)ision
Any individual or party of record who is adversely affected by such a
(\ecision may appeal the decision to the City's Hearing Examiner pursuant to
~e procedures established in this Section. (Ord. 4351, 5-4-1992)
lpecial Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
One citizen group is identified as the "Alliance for South End" (hereinafter, ASE). They
challenged two actions:
The Director's decision designating "The Landing" as a planned action;
The Director's decision approving the Master Plan for "The Landing."
The only member of ASE identified was Brad Nicholson. He lives northeast of the project area.
He drives through the area where the project is proposed. He also uses the nearlJy Coulon Park.
He has identified traffic as an issue that would affect him. He also identified impacts to the water
quality ofLalce Washington as an issue that concerns him. He also identifies himself as someone
who might shop, work or live in the area that would be developed if The Landing werc approved.
It was Mr. Nicholson, as an individual, who challenged the original EIS prepared for the City'S
Comprehensive Plan amendments and Zoning Code amendments.
The second group is identified as "Progressive Alliance for a Sustainable Southend" (hereinafter,
PASS). This sccond group appeaJed three actions:
The Director's decision on the Master Site Plan
The Planned Action decision on the roadwork and utility improvements
The Planned Action decision on "The Landing."
Two PASS members specifically identified are Patrick Kik and Sheila Pratt. Mr. Kik is a member
of United Food and Construction Workers Local 21, which is amcmbcr of PASS. He lives at 530
Burnett Avenue North in Renton, Washington, a few blocks south of the proposed development.
He has resided there since May 1997. He maintained that he wanted to be involved in the review
process. He noted traffic and conslruction would affect him. Ms Pratt, according to her signed
Declaration, lives at 300 Vennont (sic: Most likely Vuemont) Place Northeast in Renton,
Washington, also a few blocks from the proposed development She wan Is to be involved because
anything that occurs on that site would affect her due to her proximity to the proposed
development. Traffic was identified as one area that concerns and would affect her. Her use of
Coulon Memorial Park would be affected by more users, parking dynamics and pollution to Lake
Washington adjacent to the park.
Hearing Examine ~C\Slon
September 5, 200
Page 4
Sinee neither appeal was filed by any of the named individuals, the associations OT groups they
belong to can only have standing if some member of the association would have standing. Int'l
Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213, 45 P.3d 186 (2002).
The first group to be considered would be ASE, the group in which Mr. Nicholson is a member.
The attorney representing ASE also represents Westfield, WEA Southcenter LLC, a business which
owns and operates a large shopping center, Southcenter, located in Tukwila, Washington, a few
miles southwest of the current proposal's location. The business, the attorney admitted is involved
in providing at least some funding for this litigation and is on record (press releases and
announcements -citations omitted) as opposing this development. Both the City and applicant
challenged the standing of ASE based on the association of Westfield with this litigation and its
funding. They challenged ASE as a shell (:QJporation intending to directly impede the subject
proposal by indirect means that Westfield could not do directly. Westfield, as an economic
competitor has no standing to bring an appeal. Evidence presented at the hearing was the
membership application of Mr. Nicholson and the bylaws of ASE.
The membership application contains the following footer text:
"C:IDOCUMENTS AND SETTINGIPETERJMY
DOCUMENTSIDA T A/DOClWESTFIELDINON PROFITIMEMBERSHIP FORM.DOC"
(Exhibit A, Membership Application -Alliance for South End that Mr. Nicholson submitted for
membership in ASE)
The Bylaws of ASE provide the voting rights of members of ASE:
Section 1.2 Rights of Members. The rights of (he Members shall be exclusively as follows, and
none ofthe Member (sic) shall have any other rights whatsoever:
(a) The Members shall have voting rights with regard to the question of whether to
approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard to the question of whether to
approve a sale, lease, exchange, or other disposition of all, or substantially all, the
property and assets of the corporation not in the ordinary course of business,
pursuant to RCW 24.03.215(1).
(c) The Members shall have voting rights with regard to the question of whether to
approve the voluntary dissolution and winding up of the corpoTation, pursuant to
RCW 24.03.220(1).
(d) The Members shall have voting rights with regard to the question of whether to
approve a plan of distribution, pursuant to RCW 24.03.230( I). (Exhibit B)
At the hearing this office in trying to understand the relationship of ASE's members and
specifically Mr. Nicholson's relationship to the litigation and also guided thc litigation asked: "Who
is driving the car?"
Hearing Examine: CISlOn
September 5, 2006
Page 5
Staying with the "who is driving the car" analogy:
Mr. Nicholson has no official say in the course or direction that this litigation will take. He cannot
steer the litigation with any vote he can take. ASE's attorney noted Mr. Nicholson has a say in the
litigation. It is easy to say that he can provide input but there is nothing he can do to control where
it goes. He has no vote in the organizalion that controis or governs or even gcntly directs the
appeal. ASE merely uses his "stature" as an affected person to give it standing.
Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice.
The other members could outnumber and outvote him. Except, tlearly, those others carmot out
vote him since none of them has a vote.
Steering ahead with this "who is driving" analogy, one has to determine what is being driven.
Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they
have a say. On a public bus they do not. In some cases they can get off (bus) and at other times,
they are on for the ride until it reaches a predetermined destination (airplane). With a bus, the
conveyance may still be driven but no one is onboard any longer. A bus goes to the last stop even
if there is no longer anyone on board. The course of the bus was clear from the start and that's
where the bus goes. Can this litigation continue ifthere are no riders?
ASE only has standing while there are members and while there are members with standing, thal is,
persons with the potential to be injured if they don't get a reasonable resolution of their appeal.
Which itself brings up an interesting point -what if the membership dissolves, that is fades away,
without dissolving ASE officially? Does ASE have any standing if there were no members any
longer even if they or he did exist when the appeal was filed?
The appellants labeled Mr. Nicholson a "poster child" (ASE's response to applicant's motions to
dismiss for lack of standing, Page 1) for the type of person within the zone of interest ofSEPA. He
could actually be a "poster child" of a "straw man" for an organization which has no meaningful
substance.
The definition of a "straw man" is: A third party used in
some transactions as a temporary transferee to allow the
principal parties to accomplish something that is otherwise
impermissible." (Black's Law Dictionary. Seventh Edition)
We have a litigant or litigants, if one accepts that there are other members of ASE (although there
was no proof of their existence or their individual attributes of standing), who have no control of
the litigation.
The Bylaws of ASE specifically limit the participation, at least, in any voting that might control or
influence the actions of the corporation. An interesting side note is that variouslY ASE's Attomey
noted that: (I) there were "no members" in its initial filing with the Secretary of State; (2) then in
plcadings indicated that was a mistake and it should have said "no voting members"; (3) but the
Hearing Examinl ~lSlon
September 5, 200u
Page 6
bylaws provide a vote. Alihough as seen above, tbe vote is very limited and provides no control of
this litigation. A series of mistakes was identified by the parties in some of the various filings in
tlus matter. They do cast a bit of a shadow over some of the evidence.
So as noted above, if there are a nwnber of other members of ASE, Mr. Nicholson would not
necessarily get to call the shots or "drive" the bus or steer the litigation. But there is no evidence
that even a rcal majority of ASE's members can do anything to control the course of this appeal.
The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the
members any right to control the appeal. Since ASE filcd an appeal and its attorney continues to
make appcarances one has to presume someone or some entity, somewhere is in charge, calls the
shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no vote
on litigation matters nor do any of ASE's "members."
That footer shown above could be somewhat telling in detemlining who is directing the litigation
on behalf of ASE. Mr. Nicholson's Membership Application has a footer that identifies,
presumably, that document's computer storage origins. The footcr line contains the following text:
"C:\DOCUMENTS AND SETTING/PETERIMY
DOCUMENTSIDAT AlDOCIWESTFIELDINON
PROFIT IMEMBERSHll' FORM.DOC"
That footer line would seem to indicate that Westfield's legal business and the ASE association's
litigation might be handled or originate together. It would merge the potential interests of the two.
Again, recall that Westfield is a competitor of the underlying applicant for the land use decisions
being challenged. Or the "footer" could be just one more mistake in the way this matter was
handled by Westfield's and ASE's attorney. It might have been a mistake in how the document was
. initially created in whatever word processing software was used. But ASE's attorneys have been
frank. There have been no real attempts to hide the fact that Westfield employs them and actually
pays some of the bills for ASE. But this blending, merging or blurring of the lines of control all
lead to the inevitable question of who controls the litigation and whose interest is being served by
the litigation. The conclusion would appear to be inescapable· Westfield is paying some of tile
bills and no one else, neither Me. Nicholson nor any other individual or majority of ASE has been
identified as being a principle litigant who can direct the litigation of this appeal.
So even if this office were to acknowledge that Mr. Nicholson might have standing under this
office's norma! inclination to liberally grant standing to an individual who can show some interest
in a matter, Mr. Nicholson did not file the appeal in Ius own right. Sticking with our transportation
analogy just a bit longer -Mr. Nicholson hitched his cart to the wrong horse and now has no
control or say in this litigation. Mr. Nicholson has no ability to do much in his "non-voting'.'
capacity as a mere member. But Mr. Nicholson is not alone (ifthere are other members of ASE) as
no member of ASE or the combined membership of ASE can do anything with this litigation. It
may be unfortunate to preclude Mr. Nicholson's right to have his standing ascertained or appeal
heard but he tied his rights, if any, to an associ arion that granted him no rights to direct litigation.
He chose that course rather than file an appeal in his own right.
Hearing Examiner T\-c(s;on
September 5, 2006
Page 7
While one generally "pierces the corporate veil" to get at underlying persons or assets, it is
generally done so that justice can prevail. Discard the corporate veil in this case and what we find
is a competitor, Westfield Corporation. They own the nearby Southcenter Shopping Center. They
appear to be paying a good portion of the litigation, employ the attorney who is representing ASE
and may have control over the litigation. Although, this office finds no evidence that Westfield
controls the litigation, this offiee finds that no one really seems to control ASE and the attorneys in
this maller. ASE, again, has no voting members controlling the appeal. The bylaws provide the
ASE membership with a limited rdllge of power and none that go to the heart of who controls this
litigation.
In SODERBERG ADV. v. KENT-MOORE CORP. 11 Wn. App. 721, 734, 524 P.2d 1355 (1974)
the court found:
.. The court could conclude from the evidence here and reasonable inferences
therefrom that KM used its undue domination and control, through KM personnel
with a primary loyalty to KM. to obtain and then avoid payment for essential
services from which KM expected to receive great benefit. The domination Was
so complete that "the controlled corporation [hadl, so to speak, no separate mind,
will or existence of its own and [was] but a business conduit for its principaL" 1
W. Fletcher, Private Corporations § 43, at 205 (perm. ed. rev. 1963). In Seattle
Ass'nofCredit Men v. Daniels, 15 Wn.2d 393,396,130 P.2d 892 (1942), the court
in discussing the doctrine of disregard quoted the following with approval from
Pittsburgh Reflector Co. v. Dwyer & Rhodes Co., 173 Wash. 552, 555,23 P.2d 1114
(1933):
"In order to justify the judicial disregard of corporate identities, one, at least, of two
things must clearly appear. Either the dominant corporation must control and use the
other as a mere tool or instrument in Canying out its own plans and purposes so that
justice requires that it be held liable for the results, or there must be such a confusion
of identities and acts as to work a fraud upon third persons." Even ifboth things must
be shown as suggested in Sommer v. Yakima Motor Coach Co., 174 Wash. 638,26
P .2d 92 (1933) (decided prior to Seattle Ass'n of Credit Men v. Daniels, supra), the
court could and did conclude from the evidence that both things had been proved.
Footnote I, supra. See 1.1. Case Credit Coq>. v. Stark, supra at 475. See also Forest
Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23,29 So. 2d 298 (1947); Linea Servs., Inc.
v. DuPont., 239 Cal. App. 2d 841,49 Cal. Rptr. 196 (1966); Dillard & Coffin Co. v.
Richmond Cotton Oil Co., 140 Tenn. 290, 204 S.W. 75& (1918). KM in good conscience
can scarcely complain if the trial court detennined that to recognize the separate entity
ofPK under the peculiar circumstances here would in effect place the court in the untenable
position of assisting in the accomplishment of a breach of duty owing to plaintiff."
As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization
without standing have found that no individual member had sufficient standing on their own right.
Or the claims made on behalf of the association were too personal to the members and could not be
Hearing ExamineclslOn
September 5, 200_
PageS
attached to an association, But those cases that fotmd a lack of standing can still be elucidating.
Here we have an organization in which no member can call the shots.
See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn_2d 862, 866-67,576
P.2d 401 (1978); Lujan v. Defenders of Wildlife, 504 U.S. 555,561, L12 S.Ct. 2130,2136, 119
L.Ed,2d 351 (1992). InternationalAss'n of Firefighters, Local 1789 v. Spokane Airports, 146
Wn.2d 207,213-14,45 P.3d L86 (2002); Des Moines Marina Ass'n v. City of Des Moines, 124 Wn.
App. 282, TlMBERLANE v, BRAME 309 79 Wn. App. 303, 901 P.2d 1074.
This office finds that ASE does not have standing. It is a mere shell created by the applicant's
potential competitor, SoutheenterlWestfield for the purpose of thwarting a competitor's proposed
development.
This brings us to the standing of PASS. Since the underlying nature of the association was never
challenged nor evidcnce produced to make it suspect as to its aims, it would appear that PASS has
members who individually could have standing and as such, PASS has standing to bring its appeal
or appeals, The two identified members both Live close to the proposed project They could be
affected by the traffic generated by the proposed development. They could be affected by the
construction ofthe project itself. One orthem uses a park that could further be affected by
additional residents that would occupy proposed residences, Those interests appear to be within
thc zonc of interests the appeal provisions were intended to protect. Thc increased traffic could
slow down their respective commutes, increase roadway congestion and possibly lead 10 increased
risk of accidents. They could suffer injury in fact. It will be up to the appellants to prove their case
Lo prevail in obtaining the remedy they seek but they have thc right to present a casc for review.
Jurisdiction to Hearing the Appeal:
Repeating again for clarity, the Hearing Examiner Ordinance in part provides the following
language on appeals:
RMC 4-g-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
1. Applicability and Authority:
a. Administrative Detenninations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing, with the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b, Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action is granted, conditioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisions of this Section.
• Hearing Examiner cision
September 5, 200
Page 9
c. Authority: To that end, the Examiner shall have all of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concerned.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmental Detenninations:
Appeals from environmental detenninations as set forth in subsection E I b of
this Section or RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance of a Threshold
Detennination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Detenninations other than
Environmental: Appeals from administrative detenninati.ons of the City's
land usc regulation codes and from environmental detenninations required
by the Renton environmental review regulations may be taken to the Hearing
Examiner by any person aggrieved, or by any officer. departtnent. board or
bureau of the City affected by such determination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Any individual or party of record who is adversely affected by such a
decision may appeal the decision to the City's Hearing Examiner pursuant to
the procedures established in this Section. (Ord. 4351. 5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551. 9-18-1995)
It appears on the face of the appeal that the action or actions challenged were those of the Director.
Those appear to be the type of decisions that fall within thc jurisdiction ofthe Hearing Examiner.
The appeal of PASS may proceed with the following guidance: The party may not challenge the
underlying ordinance (Ordinance 5107) since this office cannot review decisions of the City
Council. The Planned Action and Master Plan decisions of the Director can be challenged_
Hearing Examine: -ClSlon
September 5, 200,
Page 10
Decision;
The appeal of ASE is dismissed, as they have no standing.
The appeal of PASS may proceed to arguments on the merits.
ORDERED THIS 5 1h day of September 2006 .
. ~\~.
FRED 1. KAdFMAN 'r~
HEARlNG EXAMINER
TRANSMITTED THIS Sth day of September 2006 to the parties of record:
Zanetta Fontes Peter Buck Jerome L. Hillis
Warren Barber & Fontes, P.S.
PO Box 626
Renton, WA 98057
Buck & Gordon LLP
2025 First Ave, Suite 500
Seattle, WA 98121
Hillis Clark Martin & Peterson, P .S.
500 Galland Buildiri.g
1221 Second Avenue
Seattle, WA 98101
Brad Nicholson Claudia M. Newman
Bricklin Newman Dold LLP
1001 Fourth Ave., Ste. 3303
Seattle, WA 98154
2811 Dayton Avenue
Renton, WA 98056
King County Journal Newspaper
Attn: Dean Radford
600 Washington Ave S
Renton Reporter
Attn: Oscar Halpert
POBox 130
Kent, W A 98032
Kent, W A 98032
TRANSMITTED THIS 5 th day of September 2006 to the following:
Mayor Kathy Kooiker
Jay Covington, CAO
1ulia Medzegian, Council Liaison
Gregg Zimmerman, PBPW Administrator
Alex Pietsch, Economic Development
Jennifer Henning. Development Services
Stacy Tucker, Development Services
King County 10urnal
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Neil Watts, Development Services
Janet Conklin, Development Services
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Hearing Examine ClSlOn
September 5, 200u \
Page 11
Pursuant to Title IV, ChapteT" 8, Section 1 OOGofthe City's Code, request for reconsideratioll
must be filed in writing on or before 5:00 p.m., September 19, 2006. Any aggrieved person
feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of
law or fact, error injudgmcnt, or the discovery of new evidence which could not be reasonably
available at the prior hearing may make a written request for a review by the Examiner within
founeen (14) days from the date ofthe Examiner's decision. This request shall set forth the specific
ambiguities or errors discoveT"ed by such appellant, and the Examiner may, after review orthe
record, take further action as he deems proper.
An appeal to the City Council is govcrned by Title IV, Chapter 8, Section 1lO, which requires that
such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other
specified requirements. Copies of this ordinance are available for inspection or purchase in the
Finance Department, first floor of City Hall. An appeal must be filed in writing on or before
5:00 p.rn .. September 19, 2006.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive
Covenants, the executed Covenants will be required prior to approval by City Council or
final processing ofthe me. You may contact this office for information on formatting
covenants.
The Appearance ofFaimess Doctrine provides that no ex parte (private one-on-one)
communications may occur concerning pending land use decisions. This means that parties to a
land use decision may not communicate in private with any decision-maker concerning the
proposal. Decision-makers in the land use process include both the Hearing Examiner and
members of the City Council.
All communications concerning the proposal must be made in public. This public communication
pennits all interested parties to know the contents of the communication' and would allow them to
openly rebut the evidence. Any violation ofthis doctrine would result in the invalidation ofthe
request by the Coun.
The Doctrine applies nOI only to the initial public hearing but to all Requests [or Reconsideration as
well as Appeals to the City Council.