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HomeMy WebLinkAboutLUA-06-071_Report 02Buc:k0 Gordon LLP VIA HAND DELIVERY Ms. Bonnie Walton City Clerk City of Renton 1055 South Grady Way Renton, WA 98055 March 23, 2007 Re: Appellant's Prehearing Brief Dear Ms. Walton: We submit the following on behalf of appellant Brad Nicholson: • Appellant's Prehearing Brief .?025 1 ,,s,· Av,:r·.Ho :; ;ite ::>·'.)'.) Sr:c1~t 1 {:. Vv'A 98'12'1.J'.l,'.:i 2C[-382.-::;S40 206-626 CJ6i'.J f-ax CITY OF RENTON MAR 2 3 2007 RECEIVED CITY CL.EPXS OFFICE f ~ S ( 1' I J'$ p,11,.·,,J Lr ftyc,/ (,,,,,1 ·· This brief is filed in the Matter of the Appeal of Brad Nicholson regarding The Director's Administrative Site Plan Approval. Copies of this letter and the above referenced documents will also be sent to the Hearing Examiner and all counsel of record. Cc: Fred Kauffman, Hearing Examiner Counsel of Record Y:\WP\ASE\Site Plan Appeal\Prehearing Bnef\1032307.doc • CITY OF RENTON MAR 2 3 2007 RECEIVED CITY CLERK'S OFFICE 3 33 r''i: JS -;J·(;lV::/f.d. Ly iCC){;/ (c;,1r1f:'•/ v I 2 3 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 4 In the Matter of the Appeal of 5 Brad Nicholson re: 6 The Director's Administrative Site Plan Approval ) ) ) No. LUA-06-071, SA-A ) ) APPELLANT'S PREHEARING ) BRIEF ) 7 8 9 _________________ ) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PPELLANTS' PREHEARING BRIEF - ,\WP\ASEISITE PLAN APPEAL\PREHEARING BR[ff,flNAL PREHEARING RIEF.LMO.OOC Bucke Gordon LLP 2025 First Ave:1ue, Suite SOJ SeCJt:ie, VJA 98121-3140 (2Cl6) 382 -9540 ORIGINAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF ARGUMENT III. THE SITE PLAN APPROVAL AND MODIFICATION APPROVAL ARE DEVOID OF CODE-REQUIRED FINDINGS A. Findings Are Required Under the RMC B. Findings Are Required Under Washington Case Law C. The Director's Findings are Inadequate to Support His Conclusions D. The Remedy for an Indefendisble Decision to is Remand IV. IN VIOLATION OF RMC 4-9-200.E(l)(A), THE SITE PLAN LACKS CONFORMANCE WITH RENTON'S LAND USE REGULA TIO NS 1 1 2 3 4 6 7 8 A. Violations ofRMC 4-3-100 ("Urban Design Regulations") 8 I. Intent Statements and Design Criteria in RMC 4-3-100.E 2. Site Plan Violations B. Violations of RMC 4-2-120.E ("Development Standards for Commercial Zoning Designations") C. Violations of RMC 4-9-200.E-F (Site Plan Approval Criteria) V. IN VIOLATION OF RMC 4-9-200.E(3)(A), THE SITE PLAN CONFLICTS WITH THE RENTON COMPREHENSIVE PLAN A. The Site Plan Conflicts With Policies Governing Character of Development B. The Site Plan Conflcits With Policies Regarding Employment C. The Comprehensive Plan Does Not Authorized Delayed Implementation 9 9 13 14 15 15 16 17 ABLE OF CONTENTS -I Bucko Gordon LLP 2025 F:rst /\venue, Suite 500 Se;,ti:le, WA 98121-3140 (206) 382-9540 • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VI. IN VIOLATION OF RMC 4-9-200.E (3)(A), THE SITE PLAN LACKS CONFORMITY TO THE APPROVED CONCEPTUAL PLAN 18 A. Consistenq: with the Conceptual Pain is Reguired 18 B. The Landing's Site Plan is Inconsistent with the Conceptual Plan 18 VII. THE LOWE'S SETBACK DECISION DOES NOT APPLY IN THIS CASE 20 A. The RMC Has Not Been Changed 20 B. Misinterpretation of the RMC Does Not Amend the RMC 22 C. Administrative Interpretations Have No Binding Authoritv 23 VIII. THE LANDING SETBACK DECISION IS ULTRA VIRES AND VOID 24 A. The Landing Setback Decision Exceeded the Director's Authority 24 B. The Landing Setback Decision Usurped the Citv Council's Authoritv to Amend Development Regulations 26 C. The Landing Setback Decision Violated the Planning Enabling Act for Code Cities by Amending the City's Zoning Regulations Without a Reguired Public Hearing 27 D. The Landing Setback Decision Violated the Growth Management Act by Amending the Zoning Code Without Reguired Public Notice 29 E. The Landing Setback Decision Granted a De Facto Variance 29 IX. THE DIRECTOR INCORRECTLY APPLIED THE SETBACK MODIFICATION CRITERIA 31 X. THE DIRECTOR'S SITE PLAN APPROVAL DID NOT RELY ON RMC 4-9-250.D TO MODIFY SETBACK REQUIREMENTS 33 ABLE OF CONTENTS -ii Buckei Gordon LLP 2025 F'rst Avenue, Suite 500 Se2ittle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 XI. OTHER NONCONFORMITIES CANNOT BE JUSTIFIED BY MODIFICATION UNDER RMC 4-9-250.D 34 XII. LOADING DOCKS MUST ALWAYS BE SCREENED IN THE UC-Nl ZONE 37 XIII. DUE TO LARGE PROJECT SCALE, A PUBLIC HEARING AND A DECISION BY THE HEARING EXAMINER IS REQUIRED 38 A. The Director Illegallr Bn1assed the Code-Reguired Public Hearing 38 1. The Environmental Review Committee Failed to Make an A1mellable Determination Regarding to Need for a Public Hearing 38 2. A Public Hearing is Required for The Landing 39 B. The Director Usur11ed the Hearing Examiner's Decision Making Authoricy 40 C. A Public Hearing is Necessarr to Effectuate the Intent of RMC 4-9-200.D 41 1. Under RMC 4-9-200.D, a Public Hearing Must Always Be Held During Master Plan or Site Plan Review 42 2. The Exc~tion in RMC 4-9-200.D(l}(a) Does Not A112ly When There is No Public Hearing During Master Plan Review 42 3. No Public Hearing was Held For The Landing's Master Plan 43 4. The AQ11licant's and City's Ar@ments Violate Rules of Statutory Construction 44 XIV. IN VIOLATION OF RMC 4-6-070, THE CITY FAILED TO PERFORM A CONCURRENCY TEST FOR THE LANDING 45 XV. THE SITE PLAN FAILS TO ENSURE MITIGATION OF STORMW ATER IMPACTS 46 XVI. CONCLUSION 47 ABLE OF CONTENTS -111 Buck@Gordon LLP 2025 First Avenue, Su;te 500 S€att1e, WA 98121-3140 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • I. INTRODUCTION Appellant Brad Nicholson filed his appeal of the Development Director's administrative approval of the Site Plan for The Landing on August 31, 2006. The hearing on the merits of this appeal will be held on March 27, 2007 -nearly seven months after the appeal was filed. Meanwhile, the Applicant speeds ahead, pulling building permits and commencing construction. Due to delays in this appeal, Nicholson is unable to exhaust his administrative remedies and seek judicial help. Nicholson therefore urges speedy resolution of this matter. II. OVERVIEW OF ARGUMENT The Director's review of the Site Plan for The Landing is governed by the City's Site Plan Development Review (SPDR) regulations, which are found in RMC 4-9-200. The SPDR regulations provide detailed review criteria, including substantive review for conformance with land use regulations, Comprehensive Plan policies, and consistency with the approved Conceptual Plan. The SPDR regulations also prescribe the procedures to be followed by the Director, such as referral to the Environmental Review Committee for a decision on whether a public hearing should be required. The Director's Site Plan Approval for The Landing ("Site Plan Approval") violated substantive and procedural requirements found in the SPDR regulations and in other sections of the RMC. These violations cannot be justified by the Director's attempts to circumvent the law through "interpretation" or "modification" of code requirements. There are clear limits on the Director's powers to bend the rules. For example, RMC 4-1-080.A(l) authorizes the Director to "make interpretations regarding the PPELLANTS' PREHEARING BRIEF -1 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Bucke, Gordon LLP 2025 First Avenue, Suite 500 Seattie, WA 98 ·: 21-3140 (206) 382"9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implementation of unclear or contradictory regulations contained in this Title." It does not allow the Director to engage in administrative rulemaking that effectively amends development regulations without notice to the public. 1 Similarly, the Director may grant modifications to certain code requirements, but only when the Director makes the following findings: • "that a specific reason makes the strict letter of this Code impractical"; • "that the intent and purpose of the governing land use designation of the Comprehensive Plan is met"; • "that the modification is in conformity with the intent and purpose of this Code;" and • that the modification meets several detailed review criteria in RMC 4-9- 250.D(2)(a)-(f). RMC 4-9-250.0(2). The Director has reapetedly failed to make these findings, even in the Director's last-minute "Minor Modification of Approved Site Plan" decision dated March 13, 2007 ("Modification Approval"), which has been appealed to the Examiner. The remedy for such code violations and flawed findings is remand. III. THE SITE PLAN APPROVAL AND MODIFICATION APPROVAL ARE DEVOID OF CODE-REQUIRED FINDINGS. Under the RMC and Washinh>ton case law, the Director was required to make factual findings that are adequate to support his conclusions and approval of the Site Plan. The Director failed to make a number of code-required findings necessary to support his decision. Such omissions leave his decision indefensible. 'RMC 4-1-080.A(l) also provides that "[a]nyinterpretation of the Renton Title IV Development Regulations shall be made in accordance with the intent or purpose statement of the specific regulation and the Comprehensive Plan." PPELLANTS' PREHEARING BRIEF -2 :\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.OOC Bucko Gordon LLP 2025 f--irst Avenue, Su1:e 500 Seattle, VVA 98121-3140 (206) ~-;82-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Findings Are Required Under the RMC Relevant sections of the RMC contain numerous references to findings. Sections E and F of the SPDR regulations include explicit references to required findings: • RMC 4-9-200.E provides that "[t]he Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies and the criteria in this subsection and in subsection F of this Section, as applicable." • RMC 4-9-200.F provides that "[a]pproval of plans subject to these criteria requires the additional finding that the project complies with the intent and policies of the Land Use and Community Design Element of the Comprehensive Plan." Similarly, the RMC sections authorizing "modifications" to certain development regulations require detailed findings. RMC 4-9-250.0(2) provides as follows: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; PPELLANTS' PREHEARING BRIEF-3 ,\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEFflNAL PREHEARING RIEF.LMO.DOC Buckz;;1 Gordon LLP 2025 f:irst Avem,e, Su;tc 500 Seattle, WA 98121<J140 (206) 332.95~0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. RMC 4-9-250.0(2) (emphasis added).2 B. Findings Are Required Under Washington Case Law. Washington courts have repeatedly held that failure to make adequate findings constitutes legal error. In a number of cases, courts have remanded where legal conclusions were not supported by factual findings. In Andrew v. King County, the Superior Court reversed a decision by the King County Board of Appeals and determined that the Raging River Quarry was not a valid nonconforming use. Andrew v. King County, 21 Wn.App. 566, 568, 586 P.2d 509 (1978). The quarry owner appealed, and the Court of Appeals reversed, holding that the Board erred by failing to find facts necessary to sustain a legal conclusion regarding the nonconforming use status of the quarry: As we have also determined, the board of appeals in making its determination did violate rules of law in not finding the ultimate material facts necessary to sustain its conclusion and determination that the quarry was a nonconforming use. 24 2 For modifications to Urban Design Regulations, tbe Director must also find that tbe proposed modification meets the criteria in RMC 4-3-100.L(l). 25 PPELLANTS' PREHEARING BRIEF -4 :IWP\ASE\SITE PLAN APPEAL\PREHEARJNG BRIEF'\FINAL PREHEARING RJEF.LMO.DOC Buck Gordon LLP 20?5 First Aver,ue, Suite 500 Seattie, WA 98121-314(1 (206) 3-328540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Id. at 574. The court held that the Superior Court had also erred "when it went on to then decide itself that the quarry was not a lawful nonconforming use, rather than remanding the case the board of appeals." Id. at 570.3 An administrative body's failure to make required findings is not harmless error. In Boeing Co. v. Gelman, 102 Wn.App. 862, IO P .3d 4 75 (2000), Boeing appealed a tax assessment to the Pierce County Board of Tax Appeals. The Board affirmed the assessment and Boeing appealed, arguing that the Board had failed to make certain findings as required by WAC 456-09-930. Id. at 865. The Superior Court agreed and the Court of Appeals affirmed, holding that the Board's failure to enter required findings prejudiced Boeing's right to effective judicial review: Id. at 870.4 Formal findings of fact serve an important function for meaningful judicial review of agency action Failing to detail these determinations in required findings and conclusions, which limits Boeing's ability to secure effective judicial review, is not harmless. To our knowledge, reported cases do not discuss the particular context of findings required for an administrative site plan approval, but the principle is the same. In 3 See also Coupeville School Dist. No. 204 v. Vivian, 36 Wn.App. 728,677 P.2d 192 (1984) ("An inferior tribunal in making its decision violates a rule of law if it fails to find the ultimate material facts necessary to sustain its conclusion and determination" (citing Andrew v. King County, 21 Wn.App. 566,574,586 P.2d 509 (1978))). 4 See also Nagatani Bros., Inc. v. Skagit County Ed. ofCom'rs, 108 Wn.2d 477, 739 P.2d 696 (1987) ("An adequate record, including intelligible findings based upon the evidence presented to the decision makers, must be made to allow required judicial review"); Seattle Bldg. and Constr. Trades Council v. Apprenticeship and Training Council, 129 Wn.2d 787,804,920 P.2d 581 (1996), cert. denied, 520 U.S. 1210, 117 S.Ct. 1693 (1997) ("Absent compliance with these and other procedural requirements, judicial review of the merits of agency action is significantly hampered and may even be effectively foreclosed"). PPELLANTS' PREHEARING BRIEF -5 :\WP\ASE\SITE PLAN APPEAL.IPREHEARING BRIEflFINAL ?REHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 First Avcr;:.1e, Suite 500 So:attls;, WA 98121 314C (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reviewing the Site Plan for compliance with the RMC, the Director is charged with making certain findings. Failure to make these findings deprives the public of the opportunity to confront the Director's reasoning and determine whether and how to challenge the Approval. It also hampers the Hearing Examiner's ability to review the Director's decision. C. The Director's Findings are Inadequate to Support his Conclusions In both his original Site Plan Approval and in the recent Modification Approval, the Director failed to make findings that are explicitly required by the RMC. For example, the Director has not found that any of the code modifications is "the minimum adjustment necessary," as required by RMC 4-9-250.D(2)(a). Often the Director fails to make anything that approaches a finding. In the Modification Approval, the Director offers the following rationale for modifications to requirements for building entries in the Urban Design Regulations: To remain in keeping with the pedestrian-oriented design of The Landing, the applicant contends that it is preferable to allow the primary entrance of Building 400 to be located on the north fa,,:ade towards the surface parking area, which is consistent with the entrances of Buildings 401-407 that abut Building 400. In addition, the applicant contends that requiring the primary entrance of Building 400 to be located along Park Avenue N frontage would result in a distuption to the pedestrian flow as the primary entrance of this building would not be consistent with the location of the primary entrance of the abutting buildings. Modification Approval at p. 2. These are not findings. They are recitations of arguments advanced by the applicant. PPELLANTS' PREHEARING BRIEF -6 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF',FINAL PREHEARJNG RJEF.LMO.DOC Buck(:!' Gordon LLP 2025 First Avenue, Suite 5:JO Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This brief will demonstrate that the Site Plan Approval and subsequent Modification Approval are not supported by findings that are required by the RMC. Evidence at the hearing will show that, because the current Site Plan does not satisfy review criteria in the RMC, a number of the findings could not have been made. D. The Remedy for an Indefensible Decision is Remand. The Examiner should not attempt to fill gaps in the Director's findings. Instead, the Examiner should remand to the Director with instructions to redraft his findings and conclusions in a manner that complies with the law. The court in Andrew v. King County held that the trial court erred by determining factual questions instead of remanding to the board of appeals: Here the board of appeals was functioning in a quasi- judicial capacity utilizing the expertise of its members on zoning matters and it, not the court, must determine the facts. [T]he trial court erred in determining these questions as a matter oflaw. 21 Wn. App. at 574-575 (citations omitted). In so holding, the appellate court made clear that the only remedy for inadequate findings is remand: Where, as here, the administrative fact-finding tribunal is required to enter written findings of fact, the pumose of such findings is not only to inform the parties of the basis of the decision, but is also to assist the courts in reviewing the administrative action. [W]e adopt the following language in a similar case, Salsbery v. District of Columbia Bd. of Zoning Adjustment, 318 A.2d at 898, wherein Judge Nebeker, writing for the District of Columbia Court of Appeals, concluded: PPELLANTS' ?REHEARING BRIEF -7 :IWPIASEISITE PLAN APPLALIPREHEARING BRIEF-.FINAL ?REHEARING RIEF.LMO.DOC Buck f,":i Gordon LLP 2:J25 First Avem:e, Su,te 500 SE·atlie, WA 92121-31.::0 (206) 382-95.'.;Q I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The proper disposition in this case must be remand. Such remand is not solely for the purpose of redrafting findings and conclusions to facilitate our review and reinforce the Board's decision. The Board may deem it desirable, in applying the (appropriate) criteria ... , to conduct further hearings or to even reach a different result. Id. at 576 ( emphasis added). Here, as in Andrew v. King County, the Director has failed to make a number of findings necessary to support his approval of the Site Plan. The Hearing Examiner should therefore remand the Site Plan Approval to the Director with instructions to draft findings that address each of the review criteria and other Code requrirements applicable to the Site Plan. IV. IN VIOLATION OF RMC 4-9-200.E(l)(B), THE SITE PLAN LACKS CONFORMANCE WITH RENTON'S LAND USE REGULATIONS The SDPR regulations require "conformance with existing land use regulations." RMC 4-9-200.E. l (b ). The Site Plan before the Hearing Examiner exhibits several nonconformities with the City's land use regulations, the most egregious of which include the following: A. Violations ofRMC 4-3-100 ("Urban Design Regulations") The Site Plan violates land use regulations found in RMC 4-3-100, the City's Urban Design Regulations. The SDPR regulations place special emphasis on the Urban Design Regulations for projects in the Urban Center-North 1 (UC-NI) zone5 by 5 The Landing site is located within the UC-NI zone. PPELLANTS' PREHEARING BRIEF -8 :IWP\ASE\SITE PLAN APPEALIPREHEARING BRIEFIFINAL PREHEARING BRIEF.LMO.DOC Buck@Gordon LLP 2025 First il.venue. Suite 500 Secattle, WA 98121~3148 (206) 332-9540 I 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 explicitly requiring conformance to "the intent and the mandatory elements of the design guidelines located in RMC 4-3-100." RMC 4-9-200.E(3)(b) ( emphasis added). This criterion provides additional force and clarity to statements of intent found in RMC 4-3- 100.6 Many of the regulations in RMC 4-3-100 apply to development on designated "pedestrian-oriented streets." The Site Plan Approval indicates that Park Avenue North and North JO'h Street are pedestrian-oriented streets. Evidence at the hearing will rebut the Applicant's and City's stated position that there are no pedestrian-oriented streets.7 The following sections describe the regulatory framework and outline the Site Plan's noncompliance with requirements related to pedestrian-oriented streets. I. Intent Statements and Design Criteria in RMC 4-3-100.E. The Urban Design Regulations are intended to achieve the following: • "To ensure that buildings are located in relation to streets and other buildings" and "to encourage pedestrian activity throughout the district." RMC 4-3-100.E ("Site Design and Building Location"). • "To ... allow an active pedestrian environment by maintaining contiguous street frontages, without parking lot siting along sidewalks and building facades; minimize the visual impact of parking lots; and use access streets and parking to maintain an urban edge to the district. RMC 4-3-100.F ("Parking and Vehicular Access"). 6 Several of the intent statements in RMC 4-3-100.E, .F, and .G, quoted in full below, are directive and unambiguous. For example, the intent "[t]o ... allow an active pedestrian environment by maintaining contiguous street frontages, without parking lot siting along sidewalks and building facades" is not malleable. RMC 4-3-100.F (emphasis added). 7 As documented in Appellants' Remand Reply Brief, Park Avenue was designated as "pedestrian-oriented" in the Conceptual Plan approved by City Council and re-designated by the Council in 2005. PPELLANTS' PREHEARING BRIEF -9 :\WP'·ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RfEF.LMO.OOC Buck~ Gordon LLP 2025 F;rst Avenue, S<Jite SOJ S%tc1e, WA 98121-3i40 (2C6) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "To enhance the urban character of development in the Urban Center by creating pedestrian networks and by providing strong links from streets and drives to building entrances" and to "promote the use of multi-modal and public transportation systems in order to reduce other vehicular traffic." RMC 4-3- 100.G ("Pedestrian Environment"). In accordance with these intent statements, the Urban Design Regulations require site plans to comply with detailed design criteria for this zone that include the following: • Site Design and Building Location (RMC 4-3-100.E): "Buildings on designated pedestrian-oriented streets shall feature 'pedestrian-oriented facades' and clear connections to the sidewalk (see illustration, RMC 4-3-IOOE7a). Such buildings shall be located adjacent to the sidewalk, except where pedestrian-oriented space is located between the building and the sidewalk. Parking between the building and pedestrian-oriented streets is prohibited." RMC 4-3- 1 OO.E.2(b )(i). "On pedestrian-oriented streets, the primary entrance of each building shall be located on the facade facing the street." RMC 4-3- 1 OO.E.3(b )(i). • Parking and Vehicular Access (RMC 4-3-100.F): "On Designated Pedestrian-Oriented Streets: (a) Parking shall be at the side and/or rear of a building, with the exception of on-street parallel parking. No more than sixty feet (60') of the street frontage measured parallel to the curb shall be occupied by off-street parking and vehicular access." RMC 4-3-100.F.l(b)(i). "Surface parking driveways are prohibited on pedestrian-oriented streets." RMC 4-3-100.F .4(b )(ii). • Pedestrian Connections (RMC 4-3-100.G): "Through-block connections should be made between buildings, between streets, and to connect sidewalks with public spaces. Preferred location for through-block connections is mid-block (see PPELLANTS' PREHEARING BRIEF -10 :\ WP\ASEIS!TE PLAN APPEALIPREHEARING BRIEFJ'INAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 First Avenue, S1Jitc SOJ Sec.ttle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • illustration, subsection G4e of this Section)." RMC 4-3- 1 OO.G(2)( c)(i). 2. Site Plan Violations The Site Plan deviates from the explicit intent statements and design criteria in RMC 4-3-100: • Parking between buildings and pedestrian-oriented streets0 RMC 4-3- 1 OO.E.2(b )(i) prohibits parking between buildings and pedestrian-oriented streets. The Site Plan locates parking between buildings and two pedestrian- oriented streets: North 81h Street and Park Avenue North. Three obvious violations are shown on Exhibit A to Appellants' Motion to Remand ("Remand Motion"). 8 • Buildings on designated pedestrian-oriented streets to be located adjacent to the sidewalk. RMC 4-3-100.E.2(b)(i) requires buildings on designated pedestrian-oriented streets to be located adjacent to the sidewalk. The Site Plan fails to locate buildings adjacent to sidewalks. For example, buildings 202 and 407 are not located adjacent to sidewalks along Park Avenue North. See Exhibit E to Remand Motion. • Entrances facing pedestrian-oriented streets. RMC 4-3-100.E.3(b)(i) requires that, on pedestrian-oriented streets, the primary entrance of each building must be located on the fac,:ade facing the street. The Site Plan locates primary entrances for several buildings on fac,:ades facing parking lots. For example, buildings 202 and 407 are oriented to the north toward a surface parking lot rather than toward Park Avenue North. See Exhibit D to Remand Motion. • Off street parking and vehicular access on pedestrian-oriented street. RMC 4- 3-100.F.1 (b )(i) provides that no more than 60 feet of street frontage along a pedestrian-oriented street may be occupied by off-street parking and vehicular access. Over 900 feet of the Park Avenue North street frontage and over 300 feet of North 1 O'h street are dedicated to off-street parking and vehicular access. See Exhibit B to Remand Motion. • Parking in front of building. RMC 4-3-100.F(l)(b)(i) provides that parking on designated pedestrian-oriented streets must be at the side and/or rear of a 8 The Remand Motion and all other pleadings filed by Appellants ASE and Nicholson in this appeal are incorporated herein by this reference. PPELLANTS' PREHEARING BRIEF -11 :\WP\ASEISITE PLAN APPEAL\PREHEARING BRIEF\F!NAL PREHEARING RIEF.LMO.DOC Buck(::i Gordon LLP 2025 ;::i,st A,enue, Suite 500 Seattle, WA 98121-3 '!40 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ill! !Ill Ill! • building. The Site Plan includes a large surface parking lot between building 200 and North 1 o'h Street. See Exhibit G to Remand Motion. • Surface parking driveways on pedestrian-oriented streets. RMC 4-3- 100.F( 4 )(b )(ii) prohibits such driveways on pedestrian-oriented streets. The Site Plan shows nine surface parking access driveways from North IO'h Street and Park Avenue North, both pedestrian-oriented streets. See Exhibit C to Remand Motion. • No Pedestrian Through-Block Connections. RMC 4-3-100.G(2)(c)(i) provides that "[t]hrough-block connections should be made between buildings, between streets, and to connect sidewalks with public spaces. Preferred location for through-block connections is mid-block (see illustration, subsection G4e of this Section)." The Site Plan fails to make any such through-block connections, even in the location illustrated in RMC 4-3-100.G(4)(e), which is shown below: Illustration in RMC 4-3-100.G(4)(e) /'l(Y./ \ .;$,.,, / t ~/ I •t I /J ~~ "·---j rt / ?' ~", ~---...____ ' .;;~/ f / ""'-, -~~~~ "~"·-··-·-·-·-····-····--·-·---·-- // / I // / I II ,' /,1 I~ j ;I_,,,,,_ Peaestna'l Com~cr I ~ ......._ Pe::!estnan C I ·1 ~ •••••••••••••• ··• ~ ~ •••••••• /! j' l ------'+-i!ft-S.tt -------·-·::::=..::_ ··-···-·-·--·-------·-~-, Ir------~--~-~~ PPELLANTS' PREHEARING BRIEF -12 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEAR!NG RIEF.LMO.DOC Buck~ Gordon LLP 2C25 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-95,10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 By contrast, the Site Plan for The Landing covers the potential pedestrian corridor with a sea of parking: B. Violations of RMC 4-2-120.E ("Development Standards for Commercial Zoning Designations") The second category of land use regulations violated by the Site Plan is found in RMC 4-2-120.E, Development Standards for Commercial Zoning Designations. The Site Plan shows the following violations of these development standards: • Setbacks. RMC 4-2-120.E requires a maximum setback of five feet for both front yards and side yards along a street. 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. See Exhibit H to Remand Motion. • Unscreened Loading Docks. RMC 4-2-120.E requires parking, docking, and loading areas for truck traffic to be both off-street and screened from view of PPELLANTS' PREHEARING BRIEF-13 :\ WPIASE\SITE PLAN APPEALIPREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Bucke,Gordon LLP 2025 First Avenue, SJite 500 Seattle, WA 98121-3'. 40 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abutting public streets.9 The Site Plan fails to screen at least seven truck loading docks from view of abutting public streets. See Exhibit F to Remand Motion. C. Violations of RMC 4-9-200.E -F (Site Plan Approval Criteria) The third category of land use regulations violated by the Site Plan is found in RMC 4-9-200.E-F. These are approval criteria found in the SPDR regulations intended to ensure pedestrian-friendly design and promote alternative modes of transportation. Designation of Pedestrian-Oriented Streets: RMC 4-9-200.E(3)( c) provides that "[ a J sufficient number of pedestrian- oriented streets must be designated to implement the vision for each district in the Urban Center North Comprehensive Plan designation." The Applicant and City have argued that there are no designated pedestrian-oriented streets. If this is true, the Site Plan violates RMC 4-9-200.E(3)(c).10 On the other hand, if there are pedestrian-oriented streets, those streets trigger the requirements in RMC 4-3-100. • Promotion of Alternative Modes of Transportation: Under RMC 4-9-200.E(2)(i), the reviewing official must ensure that the Site Plan "accommodates and promotes transit, pedestrian, and other alternative modes of transportation." Similarly, RMC 4-9-200.F(3)(h) requires "[p]rovisions for transit and carpool facilities and access where appropriate." The form of the proposed development neither accommodates nor promotes pedestrian activity along existing City sidewalks.11 There is no evidence that the applicant is seeking to promote transit, pedestrian, carpool facilities or other alternative modes of transportation. The City should have identified and planned for transit needs and facility locations before making a decision on the 9 Similarly, RMC 4-9-200.F(J)(g) requires "[s]eparation ofloading and delivery areas from parking and pedestrian areas." 10 This provision mandates the designation of"streets" as pedestrian-oriented. Use of the plural implies that more than one street must be designated. To satisfy this criterion, at least two pedestrian-oriented streets must be designated in the Site Plan. 11 The buildings on the southern half of the project face away from the public sidewalk. Fronting public sidewalks with delivery areas, refuse storage, and large walls without store entrances is no way to accommodate or promote pedestrian activity. Park Avenue, a designated pedestrian-oriented street, is fronted by large expanses of surface parking. PPELLANTS' PREHEARING BRIEF -14 :\\VP\ASE\SITE PLAN APPEAL'-PREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.DOC Buck Ci Gordon LLP 2025 FirstAvensJe, Sui:e SC·O Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Site Plan application. The Site Plan should be remanded so that the applicant can change the orientation of buildings within the site to promote pedestrian activity and other alternative forms of transportation. • Limitation of Impervious Surfaces: RMC 4-9-200.F(2)(e) provides that the Site Plan must limit "paved or impervious surfaces, where feasible, to reduce runoff and increase natural infiltration." There is no evidence that the applicant has sought to limit the impervious surface areas within the site. Due to the suburban-style surface parking areas, there is far more impervious surface than would be necessary if more urban parking calculations and configurations were used. V. IN VIOLATION OF RMC 4-9-200.E(l)(A), THE SITE PLAN CONFLICTS WITH THE RENTON COMPREHENSIVE PLAN. The SDPR regulations also require that site plans conform to "the Comprehensive Plan and its elements, goals, objectives, and policies." RMC 4-9-200.E.l(a). This provision gives regulatory effect to the Comprehensive Plan. The Site Plan fails to comply with many of the Urban Center-North policies found in the City's Comprehensive Plan, including the following: A. The Site Plan Conflicts With Policies Governing Character of Development: • 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 of the 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. PPELLANTS' PREHEARING BRIEF-15 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buckei Gordon LLP 2025 Hrs~ Avent..c, Su:te 500 Seattie, WA 98121-3140 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Policy LU-287: Discourage parking lots between structures and street right-of- way. • Policy LU-288: Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District. The Site Plan fails to conform to any of these policies. The proposed building bulk, layout, and parking are more suburban than urban in nature, in direct contravention ofLU-265. Contrary to LU-267, the Site Plan fails to include any office uses. In addition, the residential uses are separated into the northeast quadrant of the site, rather than mixed throughout the site or proposed as second stories above retail uses. To separate the uses within the site -not only into separate buildings but also into separate geographic areas - is inconsistent with LU-269. Many of the streets abutting the project are fronted by large surface parking areas, in violation ofLU-287. The southern half of the project is primarily single-story buildings, with the back or side of the buildings oriented to the public right- of-way and served exclusively by surface parking areas. Last, the proposed parking ratios reinforce the suburban nature of the development. These features violate the requirement in LU-288 to "maximize pedestrian activity and minimize automobile use." B. The Site Plan Conflicts With Policies Regarding Employment. • Policy LU-266: Achieve a mix of uses that improves the City's tax and employment base. • Policy LU-271: Support uses that sustain minimum Urban Center employment levels of 50 employees per gross acre and residential levels of 15 households per gross acre within the entire Urban Center. The Site Plan does not comply with these policies. Because office uses have been eliminated, the Site Plan cannot achieve a "mix of uses." Nor does it sustain "minimum PPELLANTS' PREHEARING BRIEF-16 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEPflNAL PREHEARJNG RJEF.LMO.DOC Bucke, Gordon ccP 2025 First Ave:-iu02, S:Jitc 500 Seattle, Wt-\ 98121-3'. 40 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Urban Center employment levels of 50 employees per gross acre." The SEPA checklist submitted by Harvest Partners for The Landing estimates only 350 new employees would work on the site. The current proposal would provide employment levels ofless than eight (8) employees per acre. C. The Comprehensive Plan Does Not Authorize Delayed Implementation. The Applicant's and City's arguments about delayed implementation of Comprehensive Plan policies are misplaced. RMC 4-9-200.E requires provides that "[t]he Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies ... ") (emphasis added). Thus, the question is not whether other, future projects might some day meet these poicies and help achieve the stated objectives. The question is whether "the proposal" itself does so. 12 It is apparent that the proposed Site Plan is simply not the type of development called for by the Comprehensive Plan. The proposed Site Plan is a suburban retail and a residential plan, not a mixed-use urban center plan. The City may want to approve a suburban, auto-oriented oriented shopping center. If so, the City must amend its Comprehensive Plan and development regulations. Neither the City nor the Applicant can simply ignore them. 13 Ill/ Ill/ 12 Policies LU-266 and LU-271 use the directive verbs "achieve," "sustain" and "support." The Landing has not achieved a mix of uses, and does not sustain or support required employment levels. 13 The Director's Site Plan Approval failed to even mention six of the seven Comprehensive P1an policies cited above. PPELLANTS' PREHEARING BRIEF -17 :\WPIASE\SITE PLAN APPEAUPREHEARING BRIEf\FINAL PREHEARING RIEF.LMO.DOC Buck Gordon LLP 20?5 Fir~t Aver'ue, Suite 500 Seattle, WA 78121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 VI. IN VIOLATION OF RMC 4-9-200.E(3)(A), THE SITE PLAN LACKS CONFORMITY TO THE APPROVED CONCEPTUAL PLAN. A. Consistency with the Conceptual Plan is Required. Two key sources of authority require site plans to be consistent with the Conceptual Plan approved by City Council. First, a fundamental regulatory criterion for site plans is the following: "The plan conforms to the approved conceptual plan required by development agreement for the subarea in question, if applicable." RMC 4-9- 200.E(3)(a). Second, the 2003 Development Agreement for this subarca provides that "Renton will evaluate all subsequent development permit applications within the Subdistricts based on consistency with the approved Conceptual Plan."l 4 City Council minutes and memoranda confirm that the Council and the public relied on these consistency requirements during review and approval of the Conceptual Plan. The Committee of the Whole report recommending adoption of the Conceptual Plan and stamped "Approved by City Council" on October 18, 2004, states as follows: "As outlined in the 2003 Development Agreement with The Boeing Company, all subsequent land use applications related to this property will be checked against the Conceptual Plan document for consistency prior to approval." B. The Landing's Site Plan is Inconsistent with the Conceptual Plan. The Site Plan proposed for The Landing in 2006 reflects a project quite different from the Conceptual Plan for the property approved in November 2003 for the "Lakeshore Landing" project. 25 14 Development Agreement at 7. § 3.3. PPELLANTS' PREHEARING BRIEF-18 :\WP\ASE\SITE PLAN APPEAL\PREHEARIKG BRIEF\FINAL PREHEARING RJEF.LMO.DOC Buck~ Gordon LLP 2025 Fir~t Avenue, Suite 500 Seattle, WA 98121-3'.40 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Lakeshore Landing was to be an urban-style, integrated mixed-use retail and employment center. The approved Conceptual Plan described a development where large- format retailers were located along 8th Avenue, Logan Avenue, and Garden Avenue; medium-format retailers between the large-format tenants; and small specialty retail shops and amenities along Park Avenue. The Applicant's "Landing" project, by contrast, is predominantly a suburban-style big box center, with multifamily housing and a theater located in separate areas of the site. The Site Plan does not provide the pedestrian amenities and small retail shops required along Park Avenue, a designated pedestrian-oriented street. Instead, Park Avenue would be fronted by medium-and large-format retailers and large expanses of parking. The Site Plan also lacks the diversity and mix of uses described in Conceptual Plan. The proposed Site Plan does not appear to inelude any office uses. Nor does it achieve the 20-pereent mix of small-scale retail relative to large and medium format retailers required by the Conceptual Plan. Using the categories established in the Conceptual Plan narrative, large-format retailers are those with footprints of 50,000 square feet or more, while medium-format retailers range in size between 10,000 and 50,000 square feet. In the proposed Site Plan, only a small percentage of the retail area will be comprised of small-scale retailers. As proposed, the project fails to create the concentrated employment area originally proposed for the site. The Conceptual Plan estimated 2,646 direct jobs and 622 indirect jobs would be created by the development of the site. As discussed above, the PPELLANTS' PREHEARING BRIEF -19 c\WP\ASE\SITE PLAN APPEAL\PREHEARJNG BR!Ef'\FINAL PREHEARING RJEF.LMO.DOC Bucke Gordon LLP 2025 F:rst Avenue, Suite 500 Sezttle, WA 98121-3140 (206) 382 9540 1 2 3 4 5 6 7 8 9 10 1 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • SEPA checklist submitted by Harvest Partners for The Landing estimates only 350 new employees would work on the site. Moreover, the elimination of office uses significantly impacts the range and quantity of employment opportunities that will be available. VII. THE LOWE'S SETBACK DECISION DOES NOT APPLY IN THIS CASE The City and Applicant have argued that violations of the five-foot setback requirement are excused by the Director's Interpretation/Policy Decision issued for the Lowe's project on July 17, 2006 (the "Lowe's Setback Decision"). These arguments presume that the Director has the power to amend development regulations in the RMC. In reality, the Lowe's Setback Decision is is a nullity in this case. A. The RMC Has Not Been Changed. The Lowe's Setback Decision did not amend the RMC. The RMC still requires a maximum 5-foot setback. RMC 4-1-080 authorizes the Director to make interpretations regarding the "implementation" of certain regulations: "The Planning/Building/Public Works Administrator is hereby authorized to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title." RMC 4-1-080.A(J). Apparently he did so during review of the Lowe's project. The RMC does not specify the effect of such an interpretation. Nor does the Lowe's Setback Decision itself indicate it has any effect in review of projects other than Lowe's. But one thing is clear-interpretations cannot be used to amend the RMC.15 15 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). PPELLANTS' PREHEARING BRIEF-20 :I WPIASE\SITE PLAN APPEALIPREHEARING BRlEF\FlNAL PREHEARING RIEF.LMO.OOC Buck~ Gordon LLP 2025 First Avenue. Suite SOC Seottle, W/\ 98121-314J (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The RMC does not provide for interpretations of general applicability. As other cities have done, Renton could have expressly implemented a procedure whereby an interpretation may be generally applied.16 It similarly could have implemented procedures for formal, published rule making, as is provided by many local governments.17 Renton has not provided for such rule making. Thus, RMC 4-1-080 authorizes only project- specific interpretations, not interpretations that modify RMC requirements as to all projects throughout the City. The Director issued the Lowe's Setback Decision during review of the Lowe's project. Because the Director did not issue a new project-specific interpretation during review for The Landing, the setback regulations in RMC 4-2-120.E must be implemented without '"interpretation." Thus, the maximum setbacks for The Landing may not be modified by the Lowe's Setback Decision. Before the setback requirements in RMC 4-2-120.E can be modified, the City Council must enact an ordinance amending that regulation. The Lowe's Setback Decision confirms that an amendment is the appropriate course of action if the interpretation is to be incorporated into the RMC: This development standard to allow for the modification of the maximum setback requirement in the UC-Nl zone 16 See, e.g., North Bend Municipal Code, Ch. 18.04.020(D): "The director's interpretation shall be subject to review and confirmation by resolution of the city council prior to reliance on the interpretation for general administrative purposes .... Administrative interpretations shall be recorded as official city policy, and incorporated into NBMC update on an annual, or more frequent, basis as needed by council legislation." See also Snohomish Municipal Code, Ch. 14.05.050: "The City Planner shall interpret and apply this Development Code consistently. As may be necessary. the City Planner shall render new interpretations in writing, file said interpretations, and apply said interpretations in future like instances .... " 17 For example, in Seattle, a director may promulgate rules, subject to certain notice provisions and requirements of dissemination to the public. See SMC 23.88.010, 3.06.030 -040, and 3.02.030. PPELLANTS' PREHEARING BRIEF -21 c\WP•ASEISITE PLAN APPEALIPREHEARING BR!Efof!NAL PREHEARING RJEF.LMO.DOC Buck(~ Gordon LLP 2025 FirstAver:ue, Suite 500 Seattle, WA 9B121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject to the above listed criteria should be included in the annual docket procedure for addition into Title IV. Lowe's Setback Decision, p. 2 (emphasis added). B. Misinterpretation of the RMC Does Not Amend the RMC. The misinterpretation of a regulation does not alter its meaning or create a substitute enactment. In Faben Point Neighbors v. City of Mercer Island, 102 Wn.App. 775, 781 11 P.3d 322 (2000), the court rejected the argument it should defere to the City's prior interpretation of its zoning code: "Misunderstanding or misinterpretation of a statute or ordinance by those charged with its enforcement does not alter its meaning or create a substitute enactment. Both the City and Pacific Properties are bound by the ordinances as written." Absent ambiguity, an agency's construction or interpretation of a statute does not receive deference. When a statute is unambiguous, construction is not necessary as the plain meaning controls. McTavish v. City of Bellevue, 89 Wn.App. 561,565,949 P.2d 837 (1998), citing Arco Prods. Co. v. Washington Utils. & Transp. Comm 'n, 125 Wn.2d 805, 810, 888 P .2d 728 (1995). ''The court should assume that the legislature means exactly what it says. Plain words do not require construction." City of Snohomish v. Joslin, 9 Wn.App. 495, 498, 513 P.2d 293 (1973). Absent ambiguity there is no need for the agency's expertise. Waste Management of Seattle, Inc. v. Utilities & Transp. Comm 'n, 123 Wn.2d 621,627,869 P.2d 1034 (1994). PPELLANTS' PREHEARING BRIEF-22 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEFflNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 First Ave'Lue, S-1ite 500 Sea:tie, 'WA 98121-3:40 (206; 332-95,10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director's leap oflogic in the Lowe's Setback Decision has no effect on the underlying regulations, nor does it apply here to The Landing. The plain meaning of the statute controls. C. Administrative Interpretations Have No Binding Authority. The Lowe's Setback Decision is not a rule, nor was it implemented pursuant to any authority in the RMC for rulemaking procedures. Thus, it has no effect beyond the specific circumstance for which it was adopted. Washington courts have consistently held that administrative interpretations are not binding and, where contrary to statute, are are not accorded any deference. See Department of Labor and Industries of Washington v. Granger, No. 78139-7, slip op. at ,r 20, ---P.3d---, 2007 WL 611257 at *5.18 Even official interpretative rules implemented pursuant to delegated rule-making authority have no binding effect on reviewing courts or on the public generally. Associaton of Washington Business v. State of Washington, Dept. of Revenue, 155 Wn.2d 430, 446-447, 120 P.3d 46 (2005). In that case, in a lengthy analysis entitled "The Force and Effect oflnterpretive Rules," the court noted that the difference between legislative rules and interpretive rules is their binding effect: "[Courts] need not defer to agency judgments embodied in [interpretative rules]" and " ... interpretive rules are not binding on the public. They serve merely as advance notice of the agency's position ... " Id. at 447. 18 See also Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-815, 828 P.2d 549 (1992); Clay v. Portik, 84 Wn.App. 553, 557-558, 929 P.2d 1132 (1997) (reviewing court does not defer to an agency interpretation that is inconsistent with the statute or that determines the scope of its own authority). PPELLANTS' PREHEARING BRIEF -23 :IWP•ASE\SITE PLAN APPEALIPREHEARrNG BRIEF'flNAL PREHEARrNG RIEF.LMO.OOC Buckei Gordon LLP 2025 First Aver'.(Je, Suite 500 Seattle, WA %12'.-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Lowe's Setback Decision is not a rule. As an "interpretation" applied to The Landing, it is contrary to governing regulations including the RMC, the Comprehensive Plan, Washington's planning enabling act for code cities, and the Growth Management Act. It has no binding effect in these proceedings. 19 VIII. THE LANDING SETBACK DECISION IS ULTRA VIRES AND VOID To the extent that the Director issued a new interpretation regarding setbacks in the Site Plan Approval for The Landing (the "Landing Setback Decision"), that interpretation is also a nullity. The Landing Setback Decision has no force and effect because it is ultra vires: it exceeded the Director's authority, violating the RMC and state law. "Acts done without legal authorization or in direct violation of existing statutes are ultra vires. "Miller v. City of Bainbridge Island, 111 Wn.App. 152, 165, 43 P .3d 1250 (2002). It is well settled in Washington that ultra vires acts are null and void as a matter of law. See. e.g.. McGuire v. State, 58 Wn.App. 195, 199, 791 P.2d 929 (1990; Port Townsend School Dist. No. 50 v. Brouillet, 21 Wn.App. 646,653, 587 P.2d 555 (1978) (citations omitted). A. The Landing Setback Decision Exceeded the Director's Authority. RMC 4-1-080.A(l) authorizes the Director "to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title." The 19 Application of the Lowe's Setback Decision would also violate fundamental principles of due process, as discussed in the Remand Motion. However, it is assumed that the Examiner does not wish to consider consitutional issues and will instruct that they be held until judicial review. Accordingly, Nicholson will not delineate these arguments, but does adopt them here by reference to the Remand Motion. Nicholson is happy to argue them at the hearing, but will not do so unless invited. PPELLANTS' PREHEARING BRIEF -24 :\WP\ASE\SITE PLAN APPEALIPREHEARING BRIEF'flNAL PREHEARING RJEF.LMO.DOC Buck0Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 981?~-3140 :206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Landing Setback Decision violated this provision by purporting to interpret regulations that are neither unclear nor contradictory. RMC 4-2-120.E requires a maximum setback for front and side yard along a street of 5 feet. The terms of this provision are clear and straightforward. The maximum setback is five feet. Five feet is a well-known distance. The Director has no authority to modify such a clear and unambiguous regulation. RMC 4-1-080.A(l) also provides that "[ a ]ny interpretation of the Renton Title IV Development Regulations shall be made in accordance with the intent or purpose statement of the specific regulation and the Comprehensive Plan." Contrary to the purpose of RMC 4-2-120.E ("DEVELOPMENT STANDARDS FOR COMMERCIAL ZONING DESIGNATIONS"), the Landing Setback Decision undermines development standards by waiving the code-required setbacks in the UC-NI zone. It also contravenes several provisions of the Comprehensive Plan. The Landing site is located within the Urban Center North-I (UC-Nl) Comprehensive Plan land use designation. The Landing Setback Decision conflicts with several UC-NI policies, including the following: • Policy LU-287: Discourage parking lots between structures and street right-of- way. • Policy LU-288: Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District. By interpreting RMC 4-2-120.E to allow modifications of the maximum setback in UC-Nl zone, the Director is in fact encouraging parking lots between structures and pedestrian-oriented streets. As noted at the outset of this paragragh, RMC 4-1-0SOA(l) PPELLANTS' PREHEARING BRIEF -25 :IWP'·ASE\SITE PLAN APPEALIPREHEARING BRIEfl.FI:>:AL PREHEARING RIEF.LMO.DOC Bucke Gordon LLP 2025 F;rst Avenue. Suite 500 S-e~ttle, W/1. 98121-3148 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requires interpretations be "in accordance with the intent and purpose statement of the specific regulation and the Comprehensive Plan." That is simply not the case here. B. The Landing Setback Decision Usurped the City Council's Authority to Amend Development Regulations. RMC 4-8-070.l provides that "[t]he City Council shall review and act on the following: ... Development and zoning regulations text amendment." The Landing Setback Decision violated this provision by attempting to amend the development regulations in RMC 4-2-120.E. The Landing Setback Decision goes beyond mere interpretation of RMC 4-2-120.E. It proposes substantive changes to the Code by adding the setback modification criteria that appear in RMC 4-2-120.C.15, which apply only in the Commercial Neighborhood (CN) and Center Village (CV) zones, to the provisions of RMC 4-2-120.E, which apply in the UC-NI zone. Only the Renton City Council has the authority to amend the City's development and zoning regulations. The procedure for amendment 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. 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 Landing Setback Decision failed to follow any of the City's text revision procedures and therefore violated RMC 4-9-025. PPELLANTS' PREHEARING BRIEF-26 :IWP\ASEISITE PLAN APPEAL\PREHEARING BRIEF·.FINAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 f'."irst Aveciue, S:.iitc, 500 Sea~te, WA 98121-3~40 (206) 3S2·954C 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C. The Landing Setback Decision Violated the Planning Enabling Act for Code Cities by Amending the City's Zoning Regulations Without a Required Public Hearing. Renton is an optional municipal code city. See RMC 1-5-1.A. Washington's planning enabling act for code cities requires public involvement in the amendment of development regulations. See Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376,389,868 P.2d 861 (1994). Specifically, RCW 35A.63.100(1) provides that "[ n Jo 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 gazette, if any, of the code city, at least ten days prior to the date of the hearing. RCW 35A.63.070. Municipalities and government agencies are required to apply regulations consistently with governing enabling statutes. Cobra Roofing Service, Inc. v. Department of Labor & Industries, 122 Wnh.App. 402, 409, 97 P.3d 17 (2004). To our knowledge, the City did not provide notice or hold a public hearing before the Director attempted to amend RMC 4-2-120.E. The Director's decision violated the provisions of RCW 35A.63.100(1) by attempting to administratively amend the Code without the public notice and participation required by state law for zoning text amendments. PPELLANTS' PREHEARING BRIEF -27 :\ WPIASE\SITE PLAN APPEALIPREHEARING BRIEF\FINAL PREHEARING lRIEF.LMO.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Sec.ttle, WA 98121-314'.J \206) 3-32-954] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Landing Setback Decision characterized "the requirement for a maximum setback in the UC-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." While this assertion is not supported by the provisions of the Renton Code or the rules of statutory construction, 20 notice is required under RCW 35A.63. I 00 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, 123 Wn.2d at 387,868 P.2d 861 (1994). Further, it is a false assumption that an "error" was made by allowing variance from setbacks in the Commercial Neighborhood (CN) and Center Village (CV) zones without authorizing such modification in the UC-Nl zone.21 The CN and CV zones are intended for smaller-scale projects where varying setbacks has much Jess significance for the City's vision and policies as expressed in the Comprehensive Plan. The setback regulation in the CN and CV zones provides for a maximum of 15 feet, which is not particularly rigorous. On the other hand, the UC-NI zone is tied to very stringent new urbanist parameters involving the streetscape, which is illustrated by the 5-foot maximum. /Ill /Ill Ill/ 2° 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). 21 One can easily see that a lot of care went into drafting the setback regulations. The provisions are footnoted with precision. \PPELLANTS' PREHEARING BRIEF -28 .':\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FlNAL PREHEARING !RIEF.LMO.DOC Buck ft, Gordon LLP 2025 Fir~t Avem.e, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 D. The Landing Setback Decision Violated the Growth Management Act by Amending the Zoning Code without Required Public Notice. The Growth Management Act (GMA) requires public participation in the development and amendment of zoning regulations. See City of Burien v. Central Puget Sound Growth Management Hearings Bd., 113 Wn.App. 375, 53 P.3d 1028 (2002. RCW 36.70A.035(1) provides as follows: 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 amendments to comprehensive plans and development regulation. The GMA outlines examples ofreasonable notice provisions, including: (i) publishing notice in the newspaper, (ii) "notifying public or private groups with known interest in a certain proposal or in the type of proposal being considered;" (iii) placing notices in appropriate regional or neighborhood journals; or (iv) publishing notice in agency newsletters or sending notice to agency mailing lists. RCW 36.70A.035(l)(c) (emphasis added). The City did not utilize any of these notice suggestions. Because the City provided no such notice, the Landing Setback Decision violated GMA's public participation requirements. E. The Landing Setback Decision Granted a De Facto Variance. The true effect of the Landing Setback Decision was to grant a setback variance. A variance may be lawfully granted only within the guidelines set forth in the zoning ,PPELLANTS' PREHEARING BRIEF -29 c\WPIASE\SITE PLAN APPEAL\PREHEARrNG BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buck~Gordon LLP 2025 First /\venue, Suite 500 Seattle, WA 9812'.-3140 (206) 382-95110 1 2 3 4 5 6 7 8 9 10 I 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance ( emphasis added). See Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994); see also Orion Corp. v. State, 103 Wn.2d 441, 693 P.2d 1369 (1985). The Director has no authority to issue a variance for setbacks in commercial developments. RMC 4-9-250.B.(1 )( c) authorizes administrative variances only for the following uses: (i) Residential Land Uses; (ii) "Commercial and Industrial Land Uses: Screening of surface-mounted equipment and screening of roof-mounted equipment;" and (iii) Proposals Located Within Critical Areas. Modification to setbacks for The Landing is simply not authorized. These setbacks may not be modified except by the Hearing Examiner through the variance process outlined in RMC 4-9-250.B. See RMC 4-9-250.B.(l)(a) and RMC 4-8-070.H(l)(p) (authorizing the Examiner to grant "variances associated with a development permit that requires review by the Hearing Examiner"). Because a variance essentially constitutes governmental approval to deviate from the law, local and state laws provide strict guidelines for approval of a variance permit. Renton's code-required variance process mandates public notice and vetting of the application pursuant to 4-9-250.8(4). Variances under the RMC may only be granted "upon making a determination in writing that the conditions specified below have been found to exist": a. That the applicant suffers undue hardship and the variance is necessary because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings of the subject property, and the strict application of the Zoning Code is found to deprive subject property owner of rights and privileges enjoyed by other property owners in the vicinity and under identical zone classification; PPELLANTS' PREHEARING BRIEF-30 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF-flNAL PREHEARING RIEF.LMO DOC Buck~Gordon LLP 2025 First A.venue, Suite 500 (206) 38L-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 b. That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated; c. That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is situated; d. That the approval as determined by the Reviewing Official is a minimum variance that will accomplish the desired purpose. RMC 4-9-250.8(5).22 For these reasons, the Landing Setback Decision is ultra vires and void. Thus, it cannot be used to justify violations of the five-foot setback requirement. IX. THE DIRECTOR INCORRECTLY APPLIED THE MODIFICATION CRITERIA IN THE LOWE'S SETBACK DECISION Even assuming that the Lowe's Setback Decision has any effect in this proceeding, the Director fails to correctly apply the decision criteria established for granting setback modifications. The Lowe's Setback Decision purports to authorize setbacks in excess of five feet in that zone. The Director opined that maximum setbacks may be modified if the site plan meets the following criteria (currently found in RMC 4-2-120.C(l5)): a. Orients development to the pedestrian through such measures as providing pedestrian walkways beyond those required by the Renton Municipal Code (RMC), encouraging pedestrian amenities and supporting alternatives to single occupant vehicle (SOY) transportation; and b. Creates a low scale streetscape through such measures as fostering distinctive architecture and mitigating the visual dominance of extensive and unbroken parking along the street front; and 22 Washington's planning and enabling act for code cities provides similar approval criteria for variances. See RCW 35A.63.l 10(2). PPELLANTS' PREHEARlNG BRIEF -31 :IWP\ASE\SITE PLA!-: APPEAL:PREHEARING BRIEFIFINAL PREHEARING RJEF.LMO.DOC Buck<::; Gordon up 2025 First Avenue, Suite 500 Scattie, VVA 98121.3140 '.206) 332-95,~0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 c. Promotes safety and visibility through such measures as discouraging the creation of hidden spaces, minimizing conflict between pedestrian and traffic and ensuring adequate setbacks to accommodate required parking and/or access that could not be provided otherwise. Alternatively, the Reviewing Official may also modify the maximum setback requirement if the applicant can demonstrate that the preceding criteria cannot be met; however, those criteria which can be met shall be addressed in the site development plan; d. Due to factors including but not limited to the unique site design requirements or physical site constraints such as critical areas or utility easements the maximum setback cannot be met; or e. One or more of the above criteria would not be furthered or would be impaired by compliance with the maximum setback; or f. Any function of the use which serves the public health, safety or welfare would be materially impaired by the required setback. Lowe's Setback Decision at I. The Director relied solely on the Setback Decision to justify setback violations in the Site Plan but failed to address all but one of the decision criteria cited in the Setback Decision. Instead of addressing these criteria, the Director found as follows: The purpose of the maximum setback requirement is to foster a pedestrian-oriented development. The proposed development incorporates pedestrian-oriented elements within and around the development (such as street furnishings, coordinated paving, awnings, etc.). In particular a private internal street is proposed (Entertainment Blvd), which would have the retail store fronts adjacent to the sidewalk. In addition, the retail store fronts along the northern portion of Park Ave N would also be located adjacent to the sidewalk. Pedestrian pathways are proposed throughout the surface parking lot to connect the various retail districts, would would further encourage a pedestrian environment. Due to the pedestrian- oriented elements included in the development, it would appear that The Landing has complied with the intent of the UC-Nl zone and the front and side yard along a street maximum setback may be increased.23 25 23 Director's Site Plan Decision at 5. PPELLANTS' PREHEARING BRIEF -32 ,\WPIASE\SITE PLAN APPEAL\PREHEARJNG BRIEF\FINAL PREHEARJNG RJEF.LMO.OOC Buck@ Gordon LLP 2025 First Aversue, SL..ite 500 Seattle, WA 98121-3140 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The Director glosses over the modification criteria in the Lowe's Setback Decision, making no findings regarding criteria (b) (regarding a "low scale streetscape"), criteria (c) (promotion of safety and visibility), or criteria (d) through (f).24 Without such findings, the Site Plan Decision is flawed and should be remanded for further proceedings that address each of the criteria in the Setback Decision. X. THE DIRECTOR'S SITE PLAN APPROVAL DID NOT RELY ON RMC 4-9-250.D TO MODIFY SETBACK REQUIREMENTS. The Applicant has suggested in earlier briefing that setback violations can be justified by RMC 4-9-250.D. However, this authority was not used in the original Site Plan Approval to modify setbacks. The Director's decision cites the Lowe's Setback Decision as the authority for modifying setbacks. It did not mention the modification process under RMC 4-9-250.D modification process. Modification of setbacks under RMC 4-9-250.D is an after-the-fact concoction of the Applicant's and City's attorneys, as reflected in their briefing and in the recent Modification Approval dated March 13, 2007. The Modification Approval does rely on RMC 4-9-250.D in an attempt to authorize setback violations. However, for the reasons discussed in the appeal of the Modification Approval filed by Nicholson and Alliance for End (ASE), that decision only compounds the problem. The Director cannot modify code requirements applicable to a site plan that has already been approved. Additionally, the Modification Approval results in greater setback violations, and again fails to make findings that are adequate to support the Director's conclusions. 25 24 Id. PPELLANTS' PREHEARING BRIEF -33 ,\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF,FINAL ?REHEARING RIEF.LMO.DOC Buck(;!>Gordon LLP 2025 First Avenue, Su:te 500 Seatt:e, WA 98121-3140 (206) 332-%40 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 XI. OTHER NONCONFORMITIES CANNOT BE JUSTIFIED BY MODIFICATION UNDER RMC 4-9-250.D The Applicant and the City argue that other violations ofRenton's development regulations cited by the Appellants are made legitimate by the Director's reference to "modification" of design regulations. The Appellant recognizes that the RMC allows limited modifications to development regulations. He simply asks that the modification process be in conformance with the law. RMC 4-9-250.D(2) authorizes the Director to make modifications to Renton's development standards in very limited circumstances and under exacting requirements. RMC 4-9-250.D(2) provides a two-part test. Both parts of the test must be met. First, there must be a showing that the standards are "impractical" due to "a special individual reason." Second, a number of limiting criteria exist as to the extent of the modifiction. 4-9-250 VARIANCES, WAIVERS, MODIFICATIONS, AND ALTERNATES: A. PURPOSES ( ... J 3. Modifications: To modify a Code requirement when there are practical difficulties involved in carrying out the provisions of this Title when a special individual reason makes the strict letter of this Code impractical. D. MODIFICATION PROCEDURES: [ ... ] 2. Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of PPELLANTS' PREHEARING BRIEF -34 :IWPIASE\SITE PLAN APPEAL\PREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.OOC Buck€! Gordon LLP 2025 F!rst Aver,ue, Suite 500 Seattle, WA 98121-3148 [206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. RMC 4-3-100.L imposes an additional layer of requirements for modifications to Urban D .Rl' 2s es1gn egu at10ns. 25 RMC 4-3-100.1(1) provides as follows: PPELLANTS' PREHEARING BRIEF-35 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF-.FINAL ?REHEARING RIEF.LMO.DOC Buck~Gordon LLP 2025 Fir~t /\venue, Su:te 500 Seattle, WA 92 ,i 21 ,3140 (206) 382-954(< I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director granted seven modifications to the Applicant in his Site Plan Approval pursuant to RMC 4-9-250.D and RMC 4-3-100.L.26 Only three are relevant to the Site Plan Appeal and the violations cited above: (1) parking between buildings and pedestrian-oriented streets;27 (2) surface parking in front ofbuildings;28 and (3) surface parking driveways on pedestrian-oriented streets.29 The three relevant modifications are facially invalid because the Director failed to make the code-required findings necessary for such changes pursuant to RMC 4-9- 250.D(2) and RMC 4-3-100.L.3° For example, the Director did not make any of the following required findings: 1) that each of the proposed modifications is the "the minimum adjustment necessary"; 2) that the deviation manifests high quality design; that the modifications are justified and required for the use and situation intended; or 3) that the modifications meet the appearance intended by the Renton Code. The Director of the Development Services Division shall have the authority to modify the minimum standards of the design regulations, subject to the provisions of RMC 4-9-250D, Modification Procedures, and the following requirements: a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. 26 Director's Site Plan Approval at 22, § E(5). 27 Id. at 10. 28 Id. at 12. 29 Id. at 12-13. 30 Id. at 10, 12-13. PPELLANTS' PREHEARING BRIEF-36 ,\WP\ASE\StTE PLAN APPEAL\PREHEARING BRJEF\FJNAL PREHEARING RIEF.LMO.DOC Buck I!;, Gordon LLP 2025 First Ave~ue, Suite 500 Seai:t'e, VVA. 98121-3 ·,40 (206:, 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director has also attempted to excuse The Landing's nonconformities by issuing the Modification Approval, which attempts to authorize after-the-fact code modifications for the approved Site Plan. Even in this recent decision, issued on March 13, 2007 (two weeks before the hearing in this matter), the Director fails to make findings required for modifications under RMC 4-9-250.D(2) and RMC 4-3-100.L. These failures are outlined in Nicholson's and ASE's appeal of the Modification Approval and will be further illustrated by evidence at the hearing. XII. LOADING DOCKS MUST ALWAYS BE SCREENED IN THE UC-Nl ZONE. As discussed above, the Site Plan fails to screen loading docks as required by RMC 4-2-120.E. The Applicant and City have argued that loading docks in UC-NI zones are only required to be screened when adjacent to residentially-zoned lots.31 This argument presumes an exception that does not exist. 32 RMC 4-2-120.E (page 2 -130.3 ofRenton's Development Regulations) provides that "[p ]arking, docking, and loading areas for truck traffic shall be off-street and screened from view of abutting public streets."33 See Exhibit Q-2 to Third Buck Deel. This standard does not reference RMC 4-4-095, which contains the exception for residential zoning. 34 Therefore, the Applicant and the City incorrectly cite "Screening" Development 31 See Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 6; City ofRenton's Reponses to Appellants' Motion to Remand Site Plan Approval at 7. 32 See Director's Site Plan Decision at 5 ("The UC-NI zone requires that all setback areas from a public street be landscaped and that truck docking and loading areas be screened from public streets."). 33 Appellants' Motion to Remand Site Plan Approval at 4 and Exhibit G. 34 The "Loading Docks" standard references RMC 4-4-080 and RMC I 0-10-13 generally, not RMC 4-4- 095. PPELLANTS' PREHEARING BRIEF -37 ,IWPIASEIS!TE PLAN APPEAL\PREHEARNG BRIEF·FlNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 First /\venue, Suite 500 Seatt:e, WP.. 98121-3' 40 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Regulation RMC 4-2-120.E on page 2 -130.2, as the source of The Landing site plan violation. See Exhibit Q-1 to Third Buck Deel. The Applicant and the City cannot avoid examination of the Site Plan's code violations by inventing exceptions to Renton's development standards. XIII. DUE TO LARGE PROJECT SCALE, A PUBLIC HEARING AND A DECISION BY THE HEARING EXAMINER IS REQUIRED. A public hearing before the Hearing Examiner is required by RMC 4-9-200.D. Because a public hearing is required, the Hearing Examiner is the appropriate official to take action on this project, not the Director. RMC 4-9-200.G(l 2). A. The Director Illegally Bypassed the Code-Required Public Hearing. 1. The Environmental Review Committee Failed to Make an Appealable Determination Regarding to Need for a Public Hearing. The SDPR regulations require a determination by the Environme ntal Review Commiteee (ERC) regarding whether a public hearing is required: Environmental Review Committee to Determine Necessity for Public Hearing: Upon receipt of final departmental comments and after the close of the public comment period, the Environmental Review Committee shall determine the necessity for a public hearing pursuant to subsection D2a of this Section. RMC 4-9-200.G(9) (emphasis added). The ERC's decision is appealable to the Hearing Examiner. RMC 4-9-200.G(lO). There is no exception to the requirement of an ERC determination. PPELLANTS' PREHEARING BRIEF -38 c\WPIASEISITE PLAN APPEAL'PREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.DOC Buck!~ Gordon LLP 2025 F;r:St Avenue. SuitB 500 Seat:.le, WA 98121-3140 (2C6; 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It appears that the ERC never made a decision regarding the need for a public hearing. The Director's decision does not mention the appealable determination required by RMC 4-9-200.G(9)-(l 0). 2. A Public Hearing is Required for The Landing. The SDPR regulations provide 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: I. Master Plans: a. All Master Plans proposed or required per subsection 8 of this Section, Master Plan Review, Applicability. Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing. b. Exception for Planned Actions: A hearing before the Hearing Examiner is not required if both of the following criteria are met: i. One or more public hearings were held where public comment was solicited on the proposed Planned Action Ordinance, and ii. The environmental impact statement for the planned action reviewed preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements. PPELLANTS' PREHEARING BRIEF -39 ,1WP\ASEISITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREIIEARING Buck zi:: Gordon LLP 2025 First Averue, Suite 500 Se::ttl<=", WA 78121-3140 (206) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Site Plan Review: a. Significant Environmental Concerns Remain: The Environmental Review Committee determines that based on departmental comments or public input there are significant unresolved concerns that are raised by the proposal; or 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). If the ERC determines that there are unresolved concerns about the proposal, a public hearing is needed. A public hearing is also required if a project includes more than 300 parking stalls or encompasses an area greater than IO acres. The Site Plan triggers both of these criteria for a public hearing. First, there are a number of unresolved concerns about The Landing's design and mitigation of its impacts, as argued by Nicholson. The Site Plan also exceeds parameters for "Large Project Scale" in RMC 4-9-200.D(2)(b ): the Site Plan calls for 2,630 parking stalls -nearly 10 times the threshold number of300; and the site consists of38.22 acres, an area that exceeds by a factor of four the project area threshold. B. The Director Usurped the Hearing Examiner's Decision Making Authority. The RMC provides for Hearing Examiner review of all site plan approvals requiring a public hearing, including large-scale projects like The Landing. RMC 4-9- 200.0(12) provides as follows: PPELLANTS' PREHEARING BRIEF-40 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARJNG RJEF.LMO.DOC Buck~ Gordon LLP 2025 Fir-st A-,enue, Su:te 500 SE'attle, WJ-\ 98121-31110 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [ flor 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 G 13 of this Section. See also RMC 4-8-070.H(l )(n) (providing for Hearing Examiner review of and action on "[ s ]ite 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. C. A Public Hearing is Necessary to Effectuate the Intent of RMC 4-9-200.D. The Applicant and City argue that a public hearing was not required due to the exception in RMC 4-9-200.D(l)(a): "Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing."35 Any reliance on this exception is misplaced. The exception in RMC 4-9- 200.D(l )(a) applies only when a public hearing was previously held for Master Plan approval. Here, there was no public hearing during review of The Landing's Master Plan, so a public hearing is required during Site Plan review. The Applicant's and City's literal reading would allow avoidance of any public hearing. This reading is contrary to the intent of RMC 4-9-200.D and rules of statutory construction. /Ill 35 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8; City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 4. PPELLANTS' PREHEARING BRIEF -41 ,\WP\ASE\SITE PLAN APPEALIPREHEARING BR!Ef'HNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 F'rst Avenue, Suite 500 Seattle, WA 98121-314: lL06J :::3~:\9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. Under RMC 4-9-200.D, a Public Hearing Must Always Be Held During Master Plan or Site Plan Review, A public hearing must be held for all projects subject to the SDPR regulations. RMC 4-9-200.D is intended to ensure that at least one public hearing is held, and that the hearing is held at a time when the proposal is sufficiently detailed to inform the public: In all cases, the public hearing for Master Plan or Site Plan Review should be conducted concurrently with any other required hearing, such as rezone or subdivision, if the details of the development are sufficiently defined to permit adequate review. RMC 4-9-200.D ( emphasis added). This language presupposes the occurrence of at least one public hearing for Master Plan or Site Plan review. 2. The Exception in RMC 4-9-200.D(l)(a) Does Not Apply When There is No Public Hearing During Master Plan Review. RMC 4-9-200.D( 1 )(b) requires a public hearing for all Master Plans, with a limited exception for Planned Actions: Exception for Planned Actions: A hearing before the Hearing Examiner is not required if both of the following criteria are met: i. One or more public hearings were held where public comment was solicited on the proposed Planned Action Ordinance, and ii. The environmental impact statement for the planned action reviewed preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements. PPELLANTS' PREHEARING BRIEF -42 :IWPIASE\SITE PLAN APPEAL\PREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.DOC Buck© Gordon LLP 2025 First Avenue, Sui:t SC:O Seattle, WA 9812'.-3140 '.206) 382-9)40 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When this exception is applied during Master Plan review, the exception in in RMC 4-9- 200.D(l )(a) cannot apply to Site Plan review. Otherwise, there will be no public hearing during Master Plan or Site Plan review. 3. No Public Hearing was Held For The Landing's Master Plan. There was no public hearing during Master Plan review for The Landing. The Director cited the exception for Planned Actions in RMC 4-9-200.D( 1 )(b ). 36 Now the Applicant and City rely on another exception to avoid a public hearing during Site Plan review. As a result, the public has never had a chance to review details such as the proposed parking areas, setbacks, and other auto-oriented elements of the The Landing. The Landing is precisely the type of large-scale project which merits a public hearing at the Master Plan or Site Plan stage, in addition to any hearings that may have been held at an earlier, conceptual stage of planning that lacks any detail about the project that will ultimately be built. At a minimum, the ERC should have had the opportunity to determine whether, "based on departmental comments or public input there are significant unresolved concerns that are raised by the proposal" RMC 4-9-200.D(2)(a).37 36 This excetion does not apply because the EIS for the Planned Action did not review "preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements." RMC 4-9- 200.D(I )(b )(ii). 37 In making this determination, the ERC should also consider whether the EIS for the Planned Action reviewed a conceptual plan "which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements." RMC 4-9- 200.D( I )(b )(ii). PPELLANTS' PREHEARING BRIEF -43 ,\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEP,FINAL PREHEARING RIEF.LMO.DOC Buck (!J, Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4. The Applicant's and City's Arguments Violate Rules of Statutory Construction. The Applicant's and City's reading of RMC 4-9-200.D() )(a) is contrary to rules of statutory construction. Ordinances must be interpreted: (a) in their entirety, reviewing all provisions in relation to each other; and (b) to best advance and effectuate the municipality's legislative purpose. See HJS Development, Inc. v. Pierce County, 148 Wn.2d 451, 61 P.3d 1141 (2003); Eugster v. City a/Spokane, 118 Wn.App. 383, 76 P.3d 741 (2003). A reading ofRMC 4-9-200.D(l)(a) that results in no public hearing conflicts with its central purpose. As discussed above, the SDPR regulations intend at least one public hearing during either Master Plan or Site Plan review. The City and Applicant misapprehend the meaning of"may" in RMC 4-9- 200.D(l)(a) ("Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing"). ( emphasis added). The permissive "may" does not equate to a mandatory "shall." Courts have found that the word "may" conveys discretion. "According to Webster's Third New International Dictionary (1969), 'may', in its ordinary and usual meaning, conveys the idea of choice, option or discretion. The general rule of statutory construction has long been that the word 'may' when used in a statute or ordinance is permissive and operates to confer discretion." In re Guardianship of Johnson, 112 Wn.App. 384, 387 (2002) (internal citations omitted).38 38 See also National Elec. Contractors Ass'n v. Rive/and, 138 Wn.2d 9, 28 (1999); In re Marriage of Tsarbopoulos, 125 Wn.App. 273,281 (2004). PPELLANTS' PREHEARING BRIEF-44 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL ?REHEARING RIEF.LMO.DOC Buck~ Gordon LLP 202:> First Avenue, Su,te 500 Seattle, WA 98121-3140 (206) 382-9540 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Here, the word "may" in RMC 4-9-200.D(l)(a) grants discretion to the ERC regarding whether a public hearing is required. It does not prohibit the ERC from requiring a hearing, but gives the ERC a choice. XIV. IN VIOLATION OF RMC 4-6-070, THE CITY FAILED TO PERFORM A CONCURRENCY TEST FOR THE LANDING. RMC 4-6-070 ("Transportation Concurrency Requirements") requires the City to perform a concurrency test for "any construction, building expansion, or change in use which creates additional demand upon or need for transportation facilities and which requires a development permit from the City of Renton." The Transportation Concurrency Requirements are intended to "ensure Renton transportation level of service standards are achieved concurrently with development, or within a reasonable time after development occupancy and use." RMC 4-6-070.A. Contrary to RMC 4-6-070, the Director fails to reference any concurrency test for the Site Plan. There is no evidence that such a test has ever been performed for The Landing. This is a glaring omisssion. The 2003 EIS prepared for the Boeing Renton Comprehensive Plan ("BRCPA EIS") assumed the existence of infrastructure improvements that have not materialized or been funded. For example, freeway ramps that were assumed as a baseline condition in the BRCP A EIS are not funded at this time. 39 39 Because the more recent traffic study performed by Transportation Engineering North West (TENW) largely relies on the assumptions and analysis in the BRCPA EIS, that study suffers from the same defects found in the EIS. In order to determine that transportation impacts on surrounding properties and uses have be adequately mitigated, additional study based on existing conditions is needed. These deficiencies can be addressed by performing a transportation concurrency test pursuant to RMC 4-6-070. PPELLANTS' PREHEARING BRIEF -45 ,\WP\ASEISITE PLAN APPEAL\PREHEARING BRIEF'.FINAL PREHEARING RIEF.LMO DOC Buck~Gordon LLP 2025 Farst ,-'\,;eriue, su:te 500 Seattle, WA 98 ': 21 -3140 (206) 382-9540 • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Evidence at the hearing will show that transportation mitigation will not happen "concurrently." XV. THE SITE PLAN FAILS TO ENSURE MITIGATION OF STORMW ATER IMP ACTS. The Applicant and City have not committed to the storm water mitigation described in the BRCP A EIS. The EIS assumed that water quality treatment and detention standards in the 2001 Ecology Stormwater Management Manual would be used for all future site development. However, the Applicant apparently continues to rely on a claim of vesting to avoid these standards. The Preliminary Technical Information Report submitted with The Landing Site Plan application (prepared by W&H Pacific and revised May 19, 2006) states that "conveyance facilities" will be based on less stringent standards in the 1990 King County Surface Water Design Manual. If the 1990 standards are used for any element of storm water mitigation, additional study is needed to ensure that stormwater impacts will be adequately mitigated. The declarations filed by the Applicant and Director in the Master Plan appeals were artfully worded to avoid an absolute commitment to the 2001 Ecology standards. Counsel for the Applicant has also refused to stipulate that the 2001 standards would be applied without exception or exemption. Because the Applicant has failed to demonstrate that stormwater and other impacts have been adequately mitigated, the Director's approval of the Site Plan for The Landing violates RMC 4-9-200.E(l)(c) (requiring "[m]itigation of impacts to surrounding PPELLANTS' PREHEARING BRIEF -46 ,IWP\ASEISITE PLAN APPEAUPREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.OOC Buck Gordon LLP 2025 f.rst Aver'.ue, Suite 500 Seattle. \NA 98121-3140 (206) 382-9540 ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 properties and uses") and RMC 4-9-200.E(l )( d) (requiring "[ m ]itigation of impacts of the proposed site plan to the site"). XVI. CONCLUSION For the reasons stated above, the Site Plan Decision should be remanded to the Director for further proce~ings consistent with the RMC and state law. Dated this 23~March, 2007. By: _ _J,-\.+--J'+-----l,~~1_1=~..-=c-- Peter L. c , Attorneys for Brad Nicholson PPELLANTS' PREHEARING BRIEF -47 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buck~~ Gordon LLP 2025 First Avenue, Suite 500 Seatt'e, WA 98121-3140 (206) 382-9540 • 1 2 3 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 4 In the Matter of the Appeal of ) ) 5 Brad Nicholson re: ) No. LUA-06-071, SA-A ) 6 The Director's Administrative Site Plan Approval ) APPELLANT'S PREHEARING 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) BRIEF ) _______________ ) PPELLANTS' PREHEARING BRIEF- :\WPIAsE:snE PLAN APPEAL\PREHEARING BRIEFflNAL PREHEARING BRIEF.LMO.DOC Bucke Gordon LLP 2025 :;:iro.t Avenue, Suite 500 5eatt;e, 1/JA 98 l 21 ·3140 {206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF ARGUMENT III. THE SITE PLAN APPROVAL AND MODIFICATION APPROVAL ARE DEVOID OF CODE-REQUIRED FINDINGS A. Findings Are Required Under the RMC B. Findings Are Required Under Washington Case Law C. The Director's Findings are Inadequate to Support His Conclusions D. The Remedy for an Indefendisble Decision to is Remand IV. IN VIOLATION OF RMC 4-9-200.E(l)(A), THE SITE PLAN LACKS CONFORMANCE WITH RENTON'S LAND USE REGULATIONS A. Violations ofRMC 4-3-100 ("Urban Design Regulations") 1. Intent Statements and Design Criteria in RMC 4-3-100.E 2. Site Plan Violations B. Violations ofRMC 4-2-120.E ("Development Standards for Commercial Zoning Designations") C. Violations of RMC 4-9-200.E-F (Site Plan Approval Criteria) V. IN VIOLATION OF RMC 4-9-200.E(3)(A), THE SITE PLAN CONFLICTS WITH THE RENTON COMPREHENSIVE PLAN A. The Site Plan Conflicts With Policies Governing Character of Development B. The Site Plan Conflcits With Policies Regarding Employment C. The Comprehensive Plan Does Not Authorized Delayed Implementation 1 1 2 3 4 6 7 8 8 9 9 13 14 15 15 16 17 ABLE OF CONTENTS -i Bucke> Gordon LLP 2025 First Avenl:e, Su;te 500 Seat:le, WA 981 21-3140 (206! 382·9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VI. IN VIOLATION OF RMC 4-9-200.E (3)(A), THE SITE PLA.t~ LACKS CONFORMITY TO THE APPROVED CONCEPTUAL PLAN 18 A. Consistenci with the Conce11tual Pain is Reguired 18 B. The Landing's Site Plan is Inconsistent with the Conce11tual Plan 18 VII. THE LOWE'S SETBACK DECISION DOES NOT APPLY IN THIS CASE 20 A. The RMC Has Not Been Changed 20 B. Misinter11retation of the RMC Does Not Amend the RMC 22 C. Administrative Inter11retations Have No Binding Authoritv 23 VIII. THE LANDING SETBACK DECISION IS ULTRA VIRES AND VOID 24 A. The Landing Setback Decision Exceeded the Director's Authoritv 24 B. The Landing Setback Decision Usur11ed the City Council's Authority to Amend Develo11ment Regulations 26 C. The Landing Setback Decision Violated the Planning Enabling Act for Code Cities bi Amending the City's Zoning Regulations Without a Required Public Hearing 27 D. The Landing Setback Decision Violated the Growth Management Act bi Amending the Zoning Code Without Required Public Notice 29 E. The Landing Setback Decision Granted a De Facto Variance 29 IX. THE DIRECTOR INCORRECTLY APPLIED THE SETBACK MODIFICATION CRITERIA 31 X. THE DIRECTOR'S SITE PLAN APPROVAL DID NOT RELY ON RMC 4-9-250.D TO MODIFY SETBACK REQUIREMENTS 33 ABLE OF CONTENTS -jj Buck I.ill Gordon LLP 2025 F:rst Avenue, Suite 500 Seattle, WA 98121-314C (206) 382-9540 1 2 3 4 XI. OTHER NONCONFORMITIES CANNOT BE JUSTIFIED BY MODIFICATION UNDER RMC 4-9-250.D XII. LOADING DOCKS MUST ALWAYS BE SCREENED IN THE UC-Nl ZONE XIII. DUE TO LARGE PROJECT SCALE, A PUBLIC HEARING AND A 34 37 5 DECISION BY THE HEARING EXAMINER IS REQUIRED 38 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The Director Illegally Bvpassed the Code-Required Public Hearing I. The Environmental Review Connnittee Failed to Make an Appellable Determination Regarding to Need for a Public Hearing 2. A Public Hearing is Required for The Landing B. The Director Usurped the Hearing Examiner's Decision Making Authority C. A Public Hearing is Necessary to Effectuate the Intent of RMC 4-9-200.D 1. Under RMC 4-9-200.D, a Public Hearing Must Always Be Held During Master Plan or Site Plan Review 2. The Exception in RMC 4-9-200.D(l)(a) Does Not Apply When There is No Public Hearing During Master Plan Review 3. No Public Hearing was Held For The Landing's Master Plan 4. The Applicant's and City's Arguments Violate Rules of Statutory Construction XIV. IN VIOLATION OF RMC 4-6-070, THE CITY FAILED TO PERFORM A CONCURRENCY TEST FOR THE LANDING XV. THE SITE PLAN FAILS TO ENSURE MITIGATION OF STORMWATERIMPACTS XVI. CONCLUSION 38 38 39 40 41 42 42 43 44 45 46 47 ABLE OF CONTENTS -111 Buck€!1 Gordon LLP 2025 F;rst Avenue, Suit"' 500 Seattle, WA 98121-3'·40 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I. INTRODUCTION Appellant Brad Nicholson filed his appeal of the Development Director's administrative approval of the Site Plan for The Landing on August 31, 2006. The hearing on the merits of this appeal will be held on March 27, 2007 -nearly seven months after the appeal was filed. Meanwhile, the Applicant speeds ahead, pulling building permits and commencing construction. Due to delays in this appeal, Nicholson is unable to exhaust his administrative remedies and seek judicial help. Nicholson therefore urges speedy resolution of this matter. II. OVERVIEW OF ARGUMENT The Director's review of the Site Plan for The Landing is governed by the City's Site Plan Development Review (SPDR) regulations, which are found in RMC 4-9-200. The SPDR regulations provide detailed review criteria, including substantive review for conformance with land use regulations, Comprehensive Plan policies, and consistency with the approved Conceptual Plan. The SPDR re6'Ulations also prescribe the procedures to be followed by the Director, such as referral to the Environmental Review Committee for a decision on whether a public hearing should be required. The Director's Site Plan Approval for The Landing ("Site Plan Approval") violated substantive and procedural requirements found in the SPDR regulations and in other sections of the RMC. These violations cannot be justified by the Director's attempts to circumvent the law through "interpretation" or "modification" of code requirements. There are clear limits on the Director's powers to bend the rules. For example, RMC 4-1-080.A(I) authorizes the Director to "make interpretations regarding the PPELLANTS' PREHEARING BRIEF-I ,IWP\ASEISITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RlEF.LMO.DOC Buck~ Gordon LLP 2825 First A:,enue. Suite 500 Seattle, WA 98121-3140 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implementation of unclear or contradictory regulations contained in this Title." It does not allow the Director to engage in administrative rulemaking that effectively amends development regulations without notice to the public. 1 Similarly, the Director may grant modifications to certain code requirements, but only when the Director makes the following findings: • "that a specific reason makes the strict letter of this Code impractical"; • "that the intent and purpose of the governing land use designation of the Comprehensive Plan is met"; • "that the modification is in conformity with the intent and purpose of this Code;" and • that the modification meets several detailed review criteria in RMC 4-9- 250.D(2)(a)-(f). RMC 4-9-250.0(2). The Director has reapetedly failed to make these findings, even in the Director's last-minute "Minor Modification of Approved Site Plan" decision dated March 13, 2007 ("Modification Approval"), which has been appealed to the Examiner. The remedy for such code violations and flawed findings is remand. III. THE SITE PLAN APPROVAL AND MODIFICATION APPROVAL ARE DEVOID OF CODE-REQUIRED FINDINGS. Under the RMC and Washington case law, the Director was required to make factual findings that are adequate to support his conclusions and approval of the Site Plan. The Director failed to make a number of code-required findings necessary to support his decision. Such omissions leave his decision indefensible. 1 RMC 4-1-080.A(l) also provides that "[a]nyinterpretation of the Renton Title JV Development Regulations shall be made in accordance with the intent or purpose statement of the specific regulation and the Comprehensive Plan." PPELLANTS' PREHEARING BRIEF-2 c\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEPflNAL PREHEARING RIEF.LMO.DOC Buck 0 Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121~3140 (206) 382-9540 ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Findings Are Required Under the RMC Relevant sections of the RMC contain numerous references to findings. Sections E and F of the SPDR regulations include explicit references to required findings: • RMC 4-9-200.E provides that "[t]he Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies and the criteria in this subsection and in subsection F of this Section, as applicable." • RMC 4-9-200.F provides that "[ a ]pproval of plans subject to these criteria requires the additional finding that the project complies with the intent and policies of the Land Use and Community Design Element of the Comprehensive Plan." Similarly, the RMC sections authorizing "modifications" to certain development regulations require detailed findings. RMC 4-9-250.D(2) provides as follows: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; PPELLANTS' PREHEARING BRIEF -3 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RJEF.LMO.DOC Buck Gordon LLP 2025 First Avenue. Suite 500 Seat:ie, WA 98121-3140 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. RMC 4-9-250.D(2) (emphasis added).2 B. Findings Are Required Under Washington Case Law. Washington courts have repeatedly held that failure to make adequate findings constitutes legal error. In a number of cases, courts have remanded where legal conclusions were not supported by factual findings. In Andrew v. King County, the Superior Court reversed a decision by the King County Board of Appeals and determined that the Raging River Quarry was not a valid nonconforming use. Andrew v. King County, 21 Wn.App. 566,568, 586 P.2d 509 (1978). The quarry owner appealed, and the Court of Appeals reversed, holding that the Board erred by failing to find facts necessary to sustain a legal conclusion regarding the nonconforming use status of the quarry: As we have also determined, the board of appeals in making its determination did violate rules of law in not finding the ultimate material facts necessary to sustain its conclusion and determination that the quarry was a nonconforming use. 24 2 For modifications to Urban Design Regulations, the Director must also find that the proposed modification meets the criteria in RMC 4-3-100.L(l). 25 PPELLANTS' PREHEARING BRIEF -4 :\WP\ASE\SITE PLAN APPEAL\PREHEARJNG BRIEF',FINAL PREHEARING RJEF.LMO.DOC Bucke Gordon LLP 2025 F1rs1 Avenue, Suite 500 Sec:ttle, WA 98121-3.140 (206) 3.'32-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Id. at 574. The court held that the Superior Court had also erred "when it went on to then decide itself that the quarry was not a lawful nonconforming use, rather than remanding the case the board of appeals." Id. at 570.3 An administrative body's failure to make required findings is not harmless error. In Boeing Co. v. Gelman, I 02 Wn.App. 862, 10 P Jd 475 (2000), Boeing appealed a tax assessment to the Pierce County Board of Tax Appeals. The Board affirmed the assessment and Boeing appealed, arguing that the Board had failed to make certain findings as required by WAC 456-09-930. Id. at 865. The Superior Court agreed and the Court of Appeals affirmed, holding that the Board's failure to enter required findings prejudiced Boeing's right to effective judicial review: Id. at 870.4 Formal findings of fact serve an important function for meaningful judicial review of agency action Failing to detail these determinations in required findings and conclusions, which limits Boeing's ability to secure effective judicial review, is not harmless. To our knowledge, reported cases do not discuss the particular context of findings required for an administrative site plan approval, but the principle is the same. In 3 See also Coupeville School Dist. No. 204 v. Vivian, 36 Wn.App. 728,677 P.2d 192 (1984) ("An inferior tribunal in making its decision violates a rule oflaw if it fails to find the ultimate material facts necessary to sustain its conclusion and determination" (citing Andrew v. King County, 21 Wn.App. 566, 574, 586 P.2d 509 ( 1978))), 4 See also Nagatani Bros., Inc. v. Skagit County Bd. ofCom'rs, 108 Wn.2d477, 739 P.2d 696 (1987) ("An adequate record, including intelligible findings based upon the evidence presented to the decision makers, must be made to allow required judicial review"); Seattle Bldg. and Constr. Trades Council v. Apprenticeship and Training Council, 129 Wn.2d 787,804,920 P.2d 581 (1996), cert. denied, 520 U.S. 1210, 117 S.Ct. 1693 (1997) ("Absent compliance with these and other procedural requirements, judicial review of the merits of agency action is significantly hampered and may even be effectively foreclosed"). PPELLANTS' PREHEARING BRIEF -5 :IWPIASE\SITE PLAN APPEALIPREHEARING BRIEF\FINAL PREHEARING R!EF.LMO.DOC Buck'::!:Gordon LLP 2025 First Avenue. Su:te 500 Seattle, •NA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reviewing the Site Plan for compliance with the RMC, the Director is charged with making certain findings. Failure to make these findings deprives the public of the opportunity to confront the Director's reasoning and determine whether and how to challenge the Approval. It also hampers the Hearing Examiner's ability to review the Director's decision. C. The Director's Findings are Inadequate to Support his Conclusions In both his original Site Plan Approval and in the recent Modification Approval, the Director failed to make findings that are explicitly required by the RMC. For example, the Director has not found that any of the code modifications is "the minimum adjustment necessary," as required by RMC 4-9-250.D(2)(a). Often the Director fails to make anything that approaches a finding. In the Modification Approval, the Director offers the following rationale for modifications to requirements for building entries in the Urban Design Regulations: To remain in keeping with the pedestrian-oriented design of The Landing, the applicant contends that it is preferable to allow the primary entrance of Building 400 to be located on the north fa<;ade towards the surface parking area, which is consistent with the entrances of Buildings 401-407 that abut Building 400. In addition, the applicant contends that requiring the primary entrance of Building 400 to be located along Park Avenue N frontage would result in a distuption to the pedestrian flow as the primary entrance of this building would not be consistent with the location of the primary entrance of the abutting buildings. Modification Approval at p. 2. These are not findings. They are recitations of arguments advanced by the applicant. PPELLANTS' PREHEARING BRIEF -6 :\WP\ASE\SITE PLAN APPEAL'PREHEARING BRIEF,FINAL PREHEARING RIEF.LMO.DOC Buck,:;_,,Gordon LLP 2025 .::irst Avenue, Suite 500 Seatt'e, WA 98121-3>40 (200) 3828540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This brief will demonstrate that the Site Plan Approval and subsequent Modification Approval are not supported by findings that are required by the RMC. Evidence at the hearing will show that, because the current Site Plan does not satisfy review criteria in the RMC, a number of the findings could not have been made. D. The Remedy for an Indefensible Decision is Remand. The Examiner should not attempt to fill gaps in the Director's findings. Instead, the Examiner should remand to the Director with instructions to redraft his findings and conclusions in a manner that complies with the law. The court in Andrew v. King County held that the trial court erred by determining factual questions instead of remanding to the board of appeals: Here the board of appeals was functioning in a quasi- judicial capacity utilizing the expertise of its members on zoning matters and it, not the court, must determine the facts. [T]he trial court erred in determining these questions as a matter oflaw. 21 Wn. App. at 574-575 (citations omitted). In so holding, the appellate court made clear that the only remedy for inadequate findings is remand: Where, as here, the administrative fact-finding tribunal is required to enter written findings of fact, the purpose of such findings is not only to inform the parties of the basis of the decision, but is also to assist the courts in reviewing the administrative action. [W]e adopt the following language in a similar case, Salsbery v. District of Columbia Bd. of Zoning Ac[justment, 318 A.2d at 898, wherein Judge Nebeker, writing for the District of Columbia Court of Appeals, concluded: PPELLANTS' PREHEARING BRIEF -7 :\WP\ASE\SITE PLAN APPEAL'PREHEARING BRIEF,.FINAL PREHEARING RJEF.LMO.DOC Buck Gordon LLP 2025 First Avenue. Suite 500 Sec:ttle, ',NA 98121-3'.40 (2C6'. 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The proper disposition in this case must be remand. Such remand is not solely for the purpose of redrafting findings and conclusions to facilitate our review and reinforce the Board's decision. The Board may deem it desirable, in applying the (appropriate) criteria ... , to conduct further hearings or to even reach a different result. Id. at 576 ( emphasis added). Here, as in Andrew v. King County, the Director has failed to make a number of findings necessary to support his approval of the Site Plan. The Hearing Examiner should therefore remand the Site Plan Approval to the Director with instructions to draft findings that address each of the review criteria and other Code requrirements applicable to the Site Plan. IV. IN VIOLATION OF RMC 4-9-200.E(l)(B), THE SITE PLAN LACKS CONFORMANCE WITH RENTON'S LAND USE REGULATIONS The SDPR regulations require "conformance with existing land use regulations." RMC 4-9-200.E. l (b ). The Site Plan before the Hearing Examiner exhibits several nonconformities with the City's land use regulations, the most egregious of which include the following: A. Violations of RMC 4-3-100 ("Urban Design Regulations") The Site Plan violates land use regulations found in RMC 4-3-100, the City's Urban Design Regulations. The SDPR regulations place special emphasis on the Urban Design Regulations for projects in the Urban Center-North 1 (UC-NI) zone5 by 5 The Landing site is located within the UC-NI zone. PPELLANTS' PREHEARING BRIEF -8 :\WP'ASE\SITE PLAN APPEAL\PREHEARING BRIEF-HNAL PREHEARING RIEF.LMO.OOC Buck@ Gordon LLP 2025 Firs: Avenue, Suite 500 Seattle, WA 98121-31 t.O (206) 332-9540 1 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 explicitly requiring conformance to "the intent and the mandatory elements of the design guidelines located in RMC 4-3-100." RMC 4-9-200.E(3)(b) (emphasis added). This criterion provides additional force and clarity to statements of intent found in RMC 4-3- 100.6 Many of the regulations in RMC 4-3-100 apply to development on designated "pedestrian-oriented streets." The Site Plan Approval indicates that Park Avenue North and North 10th Street are pedestrian-oriented streets. Evidence at the hearing will rebut the Applicant's and City's stated position that there are no pedestrian-oriented streets.7 The following sections describe the regulatory framework and outline the Site Plan's noncompliance with requirements related to pedestrian-oriented streets. 1. Intent Statements and Design Criteria in RMC 4-3-100.E. The Urban Design Regulations are intended to achieve the following: • "To ensure that buildings are located in relation to streets and other buildings" and "to encourage pedestrian activity throughout the district." RMC 4-3-100.E ("Site Design and Building Location"). • "To ... allow an active pedestrian environment by maintaining contiguous street frontages, without parking lot siting along sidewalks and building facades; minimize the visual impact of parking lots; and use access streets and parking to maintain an urban edge to the district. RMC 4-3-100.F ("Parking and Vehicular Access"). 6 Several of the intent statements in RMC 4-3-100.E, .F, and .G, quoted in full below, are directive and unambiguous. For example, the intent "[t]o ... allow an active pedestrian environment by maintaining contiguous street frontages, without parking lot siting along sidewalks and building facades" is not malleable. RMC 4-3-100.F (emphasis added).· 7 As documented in Appellants' Remand Reply Brief, Park Avenue was designated as "pedestrian-oriented" in the Conceptual Plan approved by City Council and re-designated by the Council in 2005. PPELLANTS' PREHEARING BRIEF-9 ;\ WP\ASE\SJTE PLAN APPEAL\PREHEARING BRIEP,.Fll\AL PREHEARING RJEF.LMO.OOC Buck~ Gordon LLP 2025 First Avenue. Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "To enhance the urban character of development in the Urban Center by creating pedestrian networks and by providing strong links from streets and drives to building entrances" and to "promote the use of multi-modal and public transportation systems in order to reduce other vehicular traffic." RMC 4-3- 100.G ("Pedestrian Environment"). In accordance with these intent statements, the Urban Design Regulations require site plans to comply with detailed design criteria for this zone that include the following: • Site Design and Building Location (RMC 4-3-100.E): "Buildings on designated pedestrian-oriented streets shall feature 'pedestrian-oriented facades' and clear connections to the sidewalk (see illustration, RMC 4-3-100E7a). Such buildings shall be located adjacent to the sidewalk, except where pedestrian-oriented space is located between the building and the sidewalk. Parking between the building and pedestrian-oriented streets is prohibited." RMC 4-3- 1 OO.E.2(b )(i). "On pedestrian-oriented streets, the primary entrance of each building shall be located on the facade facing the street." RMC 4-3- 1 OO.E.3(b )(i). • Parking and Vehicular Access (RMC 4-3-100.F): "On Designated Pedestrian-Oriented Streets: (a) Parking shall be at the side and/or rear of a building, with the exception of on-street parallel parking. No more than sixty feet (60') of the street frontage measured parallel to the curb shall be occupied by off-street parking and vehicular access." RMC 4-3-100.F.l(b)(i). "Surface parking driveways are prohibited on pedestrian-oriented streets." RMC 4-3-100.F.4(b)(ii). • Pedestrian Connections (RMC 4-3-100.G): "Through-block connections should be made between buildings, between streets, and to connect sidewalks with public spaces. Preferred location for through-block connections is mid-block (see PPELLANTS' PREHEARING BRIEF -10 :I WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 .:irst Aver1ue, Suite 500 Seatt!e, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 illustration, subsection G4e of this Section)." RMC 4-3- 100.0(2)( c)(i). 2. Site Plan Violations The Site Plan deviates from the explicit intent statements and design criteria in RMC 4-3-100: • Parking between buildings and pedestrian-oriented streets0 RMC 4-3- 1 OO.E.2(b )(i) prohibits parking between buildings and pedestrian-oriented streets. The Site Plan locates parking between buildings and two pedestrian- oriented streets: North 81h Street and Park Avenue North. Three obvious violations are shown on Exhibit A to Appellants' Motion to Remand ("Remand Motion"). 8 • Buildings on designated pedestrian-oriented streets to be located adjacent to the sidewalk. RMC 4-3-1 OO.E.2(b )(i) requires buildings on designated pedestrian-oriented streets to be located adjacent to the sidewalk. The Site Plan fails to locate buildings adjacent to sidewalks. For example, buildings 202 and 407 are not located adjacent to sidewalks along Park Avenue North. See Exhibit E to Remand Motion. • Entrances facing pedestrian-oriented streets. RMC 4-3-1 OO.E.3(b )(i) requires that, on pedestrian-oriented streets, the primary entrance of each building must be located on the fa<;:ade facing the street. The Site Plan locates primary entrances for several buildings on fac,;ades facing parking lots. For example, buildings 202 and 407 are oriented to the north toward a surface parking lot rather than toward Park Avenue North. See Exhibit D to Remand Motion. • Off-street parking and vehicular access on pedestrian-oriented street. RMC 4- 3-100.F. l (b )(i) provides that no more than 60 feet of street frontage along a pedestrian-oriented street may be occupied by off-street parking and vehicular access. Over 900 feet of the Park Avenue North street frontage and over 300 feet of North 101h street are dedicated to off-street parking and vehicular access. See Exhibit B to Remand Motion. • Parking in front of building. RMC 4-3-100.F(l )(b )(i) provides that parking on designated pedestrian-oriented streets must be at the side and/or rear of a 8 The Remand Motion and all other pleadings filed by Appellants ASE and Nicholson in this appeal are incorporated herein by this reference. PPELLANTS' PREHEARING BRIEF -11 c\V{P\ASE\SITE PLAN APPEAL'J'REHEARlNG BRIEF\FINAL PREHEAR!NG RIEF.LMO.DOC Buck@o Gordon LLP 2025 F;rst Avenue, S:.Jite 500 Seat~le, WA 98121-3'140 (206; 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 //II /Ill I I II building. The Site Plan includes a large surface parking lot between building 200 and North 10th Street. See Exhibit G to Remand Motion. • Swface parking driveways on pedestrian-oriented streets. RMC 4-3- l OO.F(4)(b)(ii) prohibits such driveways on pedestrian-oriented streets. The Site Plan shows nine surface parking access driveways from North I O'h Street and Park Avenue North, both pedestrian-oriented streets. See Exhibit C to Remand Motion. • No Pedestrian Through-Block Connections. RMC 4-3-100.G(2)(c)(i) provides that "[t]hrough-block connections should be made between buildings, between streets, and to connect sidewalks with public spaces. Preferred location for through-block connections is mid-block (see illustration, subsection G4e of this Section)." The Site Plan fails to make any such through-block connections, even in the location illustrated in RMC 4-3-100.G(4)(e), which is shown below: Illustration in RMC 4-3-100.G(4)(e) ·========. ·-~-! 1--- Pedestr,a1 C •••1111 II ( PPELLANTS' PREHEARING BRIEF -12 :IWP\ASEISITE PLAN APPEAL\PREHEARING BRIEF\FINAL !'REHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 First Avenue, SL.ite 500 Sec,ttle, WA 98121-3140 (2~6) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 By contrast, the Site Plan for The Landing covers the potential pedestrian corridor with a sea of parking: "\ I B. Violations of RMC 4-2-120.E ("Development Standards for Commercial Zoning Designations") The second category of land use regulations violated by the Site Plan is found in RMC 4-2-120.E, Development Standards for Commercial Zoning Designations. The Site Plan shows the following violations of these development standards: • Setbacks. RMC 4-2-120.E requires a maximum setback of five feet for both front yards and side yards along a street. 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. See Exhibit H to Remand Motion. • Unscreened Loading Docks. RMC 4-2-120.E requires parking, docking, and loading areas for truck traffic to be both off-street and screened from view of PPELLANTS' PREHEARING BRIEF -13 :\ WP:ASE\SITE PLAN APPEAL\PREHEARING BRIEF:FINAL PREHEARING RlEF.LMO.DOC Buck 0, Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abutting public streets. 9 The Site Plan fails to screen at least seven truck loading docks from view of abutting public streets. See Exhibit F to Remand Motion. C. Violations of RMC 4-9-200.E -F (Site Plan Approval Criteria) The third category ofland use regulations violated by the Site Plan is found in RMC 4-9-200.E-F. These are approval criteria found in the SPDR regulations intended to ensure pedestrian-friendly design and promote alternative modes of transportation. Designation of Pedestrian-Oriented Streets: RMC 4-9-200.E(3)(c) provides that "[a] sufficient number ofpedestrian- oriented streets must be designated to implement the vision for each district in the Urban Center North Comprehensive Plan designation." The Applicant and City have argued that there are no designated pedestrian-oriented streets. If this is true, the Site Plan violates RMC 4-9-200.E(3)(c).10 On the other hand, if there are pedestrian-oriented streets, those streets trigger the requirements in RMC 4-3-100. • Promotion of Alternative Modes of Transportation: Under RMC 4-9-200.E(2)(i), the reviewing official must ensure that the Site Plan "accommodates and promotes transit, pedestrian, and other alternative modes of transportation." Similarly, RMC 4-9-200.F(3)(h) requires "[p]rovisions for transit and carpool facilities and access where appropriate." The form of the proposed development neither accommodates nor promotes pedestrian activity along existing City sidewalks.11 There is no evidence that the applicant is seeking to promote transit, pedestrian, carpool facilities or other alternative modes of transportation. The City should have identified and planned for transit needs and facility locations before making a decision on the 9 Similarly, RMC 4-9-200.F(3)(g) requires "[s]eparation of loading and delivery areas from parking and ~edestrian areas." 0 This provision mandates the designation of"streets" as pedestrian-oriented. Use of the plural implies that more than one street must be designated. To satisfy this criterion, at least two pedestrian-oriented streets must be designated in the Site Plan. 11 The buildings on the southern half of the project face away from the public sidewalk. Fronting public sidewalks with delivery areas, refuse storage, and large walls without store entrances is no way to accommodate or promote pedestrian activity. Park Avenue, a designated pedestrian-oriented street, is fronted by large expanses of surface parking. PPELLANTS' PREHEARING BRIEF -14 :\WP\ASEISITE PLAN APPEAL\PREHEAR!NG BRIEF\FINAL PREHEARING R!EF.LMO.DOC Buck0 Gordon LLP 2025 First Avenue, Suite 500 Sea':t:e, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Site Plan application. The Site Plan should be remanded so that the applicant can change the orientation of buildings within the site to promote pedestrian activity and other alternative forms of transportation. • Limitation of Impervious Surfaces: RMC 4-9-200.F(2)(e) provides that the Site Plan must limit "paved or impervious surfaces, where feasible, to reduce runoff and increase natural infiltration." There is no evidence that the applicant has sought to limit the impervious surface areas within the site. Due to the suburban-style surface parking areas, there is far more impervious surface than would be necessary if more urban parking calculations and configurations were used. V. IN VIOLATION OF RMC 4-9-200.E(l)(A), THE SITE PLAN CONFLICTS WITH THE RENTON COMPREHENSIVE PLAN. The SDPR regulations also require that site plans conform to "the Comprehensive Plan and its elements, goals, objectives, and policies." RMC 4-9-200.E.1 (a). This provision gives regulatory effect to the Comprehensive Plan. The Site Plan fails to comply with many of the Urban Center -North policies found in the City's Comprehensive Plan, including the following: A. The Site Plan Conflicts With Policies Governing Character of Development: • Policy LU-265: Support more urban intensity of development (e.g. building height, hulk, landscaping, parking standards) than with land uses in the suburban areas of the 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. PELLANTS' PREHEARING BRIEF -15 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.L\10.DOC Buck".::' Gordon LLP 2025 ~1rs.t Avenue, SJite 500 Sea~,e, WA 98121-3';40 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Policy LU-287: Discourage parking Jots between structures and street right-of- way. • Policy LU-288: Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District. The Site Plan fails to conform to any of these policies. The proposed building bulk, layout, and parking are more suburban than urban in nature, in direct contravention ofLU-265. Contrary to LU-267, the Site Plan fails to include any office uses. In addition, the residential uses are separated into the northeast quadrant of the site, rather than mixed throughout the site or proposed as second stories above retail uses. To separate the uses within the site -not only into separate buildings but also into separate geographic areas - is inconsistent with LU-269. Many of the streets abutting the project are fronted by large surface parking areas, in violation of LU-287. The southern half of the project is primarily single-story buildings, with the back or side of the buildings oriented to the public right- of-way and served exclusively by surface parking areas. Last, the proposed parking ratios reinforce the suburban nature of the development. These features violate the requirement in LU-288 to "maximize pedestrian activity and minimize automobile use." B. The Site Plan Conflicts With Policies Regarding Employment. • Policy LU-266: Achieve a mix of uses that improves the City's tax and employment base. • Policy LU-271: Support uses that sustain minimum Urban Center employment levels of 50 employees per gross acre and residential levels of 15 households per gross acre within the entire Urban Center. The Site Plan does not comply with these policies. Because office uses have been eliminated, the Site Plan cannot achieve a "mix of uses." Nor does it sustain "minimum PPELLANTS' PREHEARING BRIEF -16 1\ WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARJNG RIEF.LMO.DOC Buck@,Gordon LLP 2025 Fir:;t Avenue, SL.ite 500 Seattle, WA 98121-314-J (206) 382-95t,Q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Urban Center employment levels of 50 employees per gross acre." The SEPA checklist submitted by Harvest Partners for The Landing estimates only 350 new employees would work on the site. The current proposal would provide employment levels ofless than eight (8) employees per acre. C. The Comprehensive Plan Does Not Authorize Delayed Implementation. The Applicant's and City's arguments about delayed implementation of Comprehensive Plan policies are misplaced. RMC 4-9-200.E requires provides that "[t]he Reviewing Official shall review and act upon plans based upon a finding that the proposal meets Comprehensive Plan objectives and policies ... ") (emphasis added). Thus, the question is not whether other, future projects might some day meet these poicies and help achieve the stated objectives. The question is whether "the proposal" itself does so. 12 It is apparent that the proposed Site Plan is simply not the type of development called for by the Comprehensive Plan. The proposed Site Plan is a suburban retail and a residential plan, not a mixed-use urban center plan. The City may want to approve a suburban, auto-oriented oriented shopping center. If so, the City must amend its Comprehensive Plan and development regulations. Neither the City nor the Applicant can simply ignore them. 13 I II I I Ill 12 Policies LU-266 and LU-271 use the directive verbs "achieve," "sustain" and "support." The Landing has not achieved a mix of uses, and does not sustain or support required employment levels. 13 The Director's Site Plan Approval failed to even mention six of the seven Comprehensive Plan policies cited above. PPELLANTS' PREHEARING BRIEF-17 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEFflNAL PREHEARING RIEF.LMO.DOC Buck I':!> Gordon LLP 2025 F:rst Aven.ie, Suite 500 Sec:ttle, WA 98121-314() (2:)6) 382-95110 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 VI. IN VIOLATION OF RMC 4-9-200.E(3)(A), THE SITE PLAN LACKS CONFORMITY TO THE APPROVED CONCEPTUAL PLAN. A. Consistency with the Conceptual Plan is Required. Two key sources of authority require site plans to be consistent with the Conceptual Plan approved by City Council. First, a fundamental regulatory criterion for site plans is the following: "The plan conforms to the approved conceptual plan required by development agreement for the subarea in question, if applicable." RMC 4-9- 200.E(3)(a). Second, the 2003 Development Agreement for this subarea provides that "Renton will evaluate all subsequent development permit applications within the Subdistricts based on consistency with the approved Conceptual Plan."14 City Council minutes and memoranda confirm that the Council and the public relied on these consistency requirements during review and approval of the Conceptual Plan. The Committee of the Whole report recommending adoption of the Conceptual Plan and stamped "Approved by City Council" on October 18, 2004, states as follows: "As outlined in the 2003 Development Agreement with The Boeing Company, all subsequent land use applications related to this property will be checked against the Conceptual Plan document for consistency prior to approval." B. The Landing's Site Plan is Inconsistent with the Conceptual Plan. The Site Plan proposed for The Landing in 2006 reflects a project quite different from the Conceptual Plan for the property approved in November 2003 for the "Lakeshore Landing" project. 25 14 Development Agreement at 7, § 3.3. PPELLANTS' PREHEARING BRIEF -18 ;\WP\ASE\SJTE PLAN APPEAL\PREHEAR!NG BR!Ef\FIKAL PREHEARING RIEF.LMO.DOC Buckei Gordon LLP 2025 First Avenue, Suite 500 SeE::ttle, WA 98121-3140 (2C6; 3S2-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lakeshore Landing was to be an urban-style, integrated mixed-use retail and employment center. The approved Conceptual Plan described a development where large- format retailers were located along 8th Avenue, Logan Avenue, and Garden Avenue; medium-format retailers between the large-format tenants; and small specialty retail shops and amenities along Park Avenue. The Applicant's "Landing" project, by contrast, is predominantly a suburban-style big box center, with multifamily housing and a theater located in separate areas of the site. The Site Plan does not provide the pedestrian amenities and small retail shops required along Park Avenue, a designated pedestrian-oriented street. Instead, Park Avenue would be fronted by medium-and large-format retailers and large expanses of parking. The Site Plan also Jacks the diversity and mix of uses described in Conceptual Plan. The proposed Site Plan does not appear to include any office uses. Nor does it achieve the 20-percent mix of small-scale retail relative to large and medium format retailers required by the Conceptual Plan. Using the categories established in the Conceptual Plan narrative, large-format retailers are those with footprints of 50,000 square feet or more, while medium-format retailers range in size between I 0,000 and 50,000 square feet. In the proposed Site Plan, only a small percentage of the retail area will be comprised of small-scale retailers. As proposed, the project fails to create the concentrated employment area originally proposed for the site. The Conceptual Plan estimated 2,646 direct jobs and 622 indirect jobs would be created by the development of the site. As discussed above, the PPELLANTS' PREHEARING BRIEF -19 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BR!EF\FINAL PREHEARING RIEF. LMO.DOC Buck0Gordon LLP 2025 First Avenue, Suite 500 Seat:le, WA 98121-3140 (2:)6) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SEPA checklist submitted by Harvest Partners for The Landing estimates only 350 new employees would work on the site. Moreover, the elimination of office uses significantly impacts the range and quantity of employment opportunities that will be available. VII. THE LOWE'S SETBACK DECISION DOES NOT APPLY IN THIS CASE The City and Applicant have argued that violations of the five-foot setback requirement are excused by the Director's Interpretation/Policy Decision issued for the Lowe's project on July 17, 2006 (the "Lowe's Setback Decision"). These arguments presume that the Director has the power to amend development regulations in the R.MC. In reality, the Lowe's Setback Decision is is a nullity in this case. A. The RMC Has Not Been Changed. The Lowe's Setback Decision did not amend the RMC. The RMC still requires a maximum 5-foot setback. RMC 4-1-080 authorizes the Director to make interpretations regarding the "implementation" of certain regulations: "The Planning/BuildinglPublic Works Administrator is hereby authorized to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title." RMC 4-1-080.A(l). Apparently he did so during review of the Lowe's project. The RMC does not specify the effect of such an interpretation. Nor does the Lowe's Setback Decision itself indicate it has any effect in review of projects other than Lowe's. But one thing is clear -interpretations cannot be used to amend the RMC.15 15 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). PPELLANTS' PREHEARING BRIEF -20 ,I WPIASEISITE PLAK APPEALIPREHEARING BRIEF'J'INAL PREHEARING RIEF.LMO.DOC Buck/11 Gordon LLP 2025 :;:irst Ave'!ue, Suite 500 Sea~tie, WA 98121-31 t.Q (206) 382·9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The RMC does not provide for interpretations of general applicability. As other cities have done, Renton could have expressly implemented a procedure whereby an interpretation may be generally applied.16 It similarly could have implemented procedures for formal, published rule making, as is provided by many local governments.17 Renton has not provided for such rule making. Thus, RMC 4-1-080 authorizes only project- specific interpretations, not interpretations that modify RMC requirements as to all projects throughout the City. The Director issued the Lowe's Setback Decision during review of the Lowe's project. Because the Director did not issue a new project-specific interpretation during review for The Landing, the setback regulations in RMC 4-2-120.E must be implemented without "interpretation." Thus, the maximum setbacks for The Landing may not be modified by the Lowe's Setback Decision. Before the setback requirements in RMC 4-2-120.E can be modified, the City Council must enact an ordinance amending that regulation. The Lowe's Setback Decision confirms that an amendment is the appropriate course of action if the interpretation is to be incorporated into the RMC: This development standard to allow for the modification of the maximum setback requirement in the UC-NJ zone 16 See, e.g., North Bend Municipal Code, Ch. 18.04.020(D): "The director's interpretation shall be subject to review and confirmation by resolution of the city council prior to reliance on the interpretation for general administrative purposes .... Administrative interpretations shall be recorded as official city policy, and incorporated into NBMC update on an annual, or more frequent, basis as needed by council legislation." See also Snohomish Municipal Code, Ch. 14.05.050: "The City Planner shall interpret and apply this Development Code consistently. As may be necessary, the City Planner shall render new interpretations in writing, file said interpretations, and apply said interpretations in future like instances .... " 17 For example, in Seattle, a director may promulgate rules, subject to certain notice provisions and requirements of dissemination to the public. See SMC 23.88.010, 3.06.030 -040, and 3.02.030. PPELLANTS' PREHEARING BRIEF -21 :\WPIASE\SITE PLAN APPEAL\PREHEARJNG BRIEF\F!NAL PREHEAR!NG RIEF.LMO.DOC Buck~Gordon LLP 2025 FirstAven.Je, Suite 500 Seattle, WA 98121·3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject to the above listed criteria should be included in the annual docket procedure for addition into Title IV. Lowe's Setback Decision, p. 2 (emphasis added). B. Misinterpretation of the RMC Does Not Amend the R..l\'.IC. The misinterpretation of a regulation does not alter its meaning or create a substitute enactment. In Faben Point Neighbors v. City of Mercer Island, 102 Wn.App. 775, 781 11 P.3d 322 (2000), the court rejected the argument it should defere to the City's prior interpretation of its zoning code: "Misunderstanding or misinterpretation of a statute or ordinance by those charged with its enforcement does not alter its meaning or create a substitute enactment. Both the City and Pacific Properties are bound by the ordinances as written." Absent ambiguity, an agency's construction or interpretation of a statute does not receive deference. When a statute is unambiguous, construction is not necessary as the plain meaning controls. McTavish v. City of Bellevue, 89 Wn.App. 561, 565, 949 P.2d 837 (1998), citing Arco Prods. Co. v. Washington Utils. & Transp. Comm 'n, 125 Wn.2d 805, 810, 888 P.2d 728 (1995). "The court should assume that the legislature means exactly what it says. Plain words do not require construction." City of Snohomish v. Joslin, 9 Wn.App. 495, 498, 513 P .2d 293 (1973 ). Absent ambiguity there is no need for the agency's expertise. Waste Management of Seattle, Inc. v. Utilities & Transp. Comm 'n, 123 Wn.2d 621,627,869 P.2d 1034 (1994). PPELLANTS' PREHEARING BRIEF -22 :\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARTl\G RJEF.LMO.DOC Buck 11' Gordon LLP 2025 First Ave~ue, Suite 500 Sea-:tie, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director's leap of logic in the Lowe's Setback Decision has no effect on the underlying regulations, nor does it apply here to The Landing. The plain meaning of the statute controls. C. Administrative Interpretations Have No Binding Authority. The Lowe's Setback Decision is not a rule, nor was it implemented pursuant to any authority in the RMC for rulemaking procedures. Thus, it has no effect beyond the specific circumstance for which it was adopted. Washington courts have consistently held that administrative interpretations are not binding and, where contrary to statute, are are not accorded any deference. See Department of Labor and Industries of Washington v. Granger, No. 78139-7, slip op. at ,i 20, ---P.3d---, 2007 WL 611257 at *5.18 Even official interpretative rules implemented pursuant to delegated rule-making authority have no binding effect on reviewing courts or on the public generally. Associaton of Washington Business v. State of Washington, Dept. of Revenue, 155 Wn.2d 430, 446-447, 120 P.3d 46 (2005). In that case, in a lengthy analysis entitled "The Force and Effect of Interpretive Rules," the court noted that the difference between legislative rules and interpretive rules is their binding effect: "[Courts] need not defer to agency judgments embodied in [interpretative rules]" and " ... interpretive rules are not binding on the public. They serve merely as advance notice of the agency's position ... "Id.at 447. 18 See also Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-815, 828 P.2d 549 (1992); Clay v. Portik, 84 Wn.App. 553, 557-558, 929 P.2d 1132 (1997) (reviewing court does not defer to an agency interpretation that is inconsistent with the statute or that determines the scope of its own authority). PPELLANTS' PREHEARING BRIEF -23 :IWPIASE\SITE PLAN APPEAL\PREHEAR!NG BRIEF\Fl,AL ?REHEARING RIEF.LMO.OOC Buck~Gordon LLP 2025 Firs1 Avenue, Suite 500 Seattle, WA 98121-314:J (206) 382-9540 1 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Lowe's Setback Decision is not a rule. As an "interpretation" applied to The Landing, it is contrary to governing regulations including the RMC, the Comprehensive Plan, Washington's planning enabling act for code cities, and the Growth Management Act. It has no binding effect in these proceedings.19 VIII. THE LANDING SETBACK DECISION IS ULTRA VIRES AND VOID To the extent that the Director issued a new interpretation regarding setbacks in the Site Plan Approval for The Landing (the "Landing Setback Decision"), that interpretation is also a nullity. The Landing Setback Decision has no force and effect because it is ultra vires: it exceeded the Director's authority, violating the RMC and state law. "Acts done without legal authorization or in direct violation of existing statutes are ultra vires. "Miller v. City of Bainbridge Island, 111 Wu.App. 152, 165, 43 P.3d 1250 (2002). It is well settled in Washington that ultra vires acts are null and void as a matter oflaw. See, e.g., McGuire v. State, 58 Wu.App. 195, 199, 791 P.2d 929 (1990; Port Townsend School Dist. No. 50 v. Brouillet, 21 Wu.App. 646, 653, 587 P.2d 555 (1978) (citations omitted). A. The Landing Setback Decision Exceeded the Director's Authority. R,_\1C 4-1-080.A( I) authorizes the Director "to make interpretations regarding the implementation of unclear or contradictory regulations contained in this Title." The 19 Application of the Lowe's Setback Decision would also violate fundamental principles of due process, as discussed in the Remand Motion. However, it is assumed that the Examiner does not wish to consider consitutional issues and will instruct that they be held until judicial review. Accordingly, Nicholson will not delineate these arguments, but does adopt them here by reference to the Remand Motion. Nicholson is happy to argue them at the hearing, but will not do so unless invited. PPELLANTS' PREHEARING BRIEF-24 i,WPIASE\SITE PLAN APPEAUPREHEARING BRJEF,FINAL PREHEARING RIEF.LMO.DOC Buck€1Gordon LLP 2025 First Aven;Je, Suite 500 Seade, WA 98121-3140 (286) 382-9540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Landing Setback Decision violated this provision by purporting to inteIJJret regulations that are neither unclear nor contradictory. RMC 4-2-120.E requires a maximum setback for front and side yard along a street of 5 feet. The terms of this provision are clear and straightforward. The maximum setback is five feet. Five feet is a well-known distance. The Director has no authority to modify such a clear and unambiguous regulation. RMC 4-1-080.A(l) also provides that "[a]ny inteIJJretation of the Renton Title IV Development Regulations shall be made in accordance with the intent or puIJJose statement of the specific regulation and the Comprehensive Plan." Contrary to the puIJJose of RMC 4-2-120.E ("DEVELOPMENT STANDARDS FOR COMMERCIAL ZONING DESIGNATIONS"), the Landing Setback Decision undermines development standards by waiving the code-required setbacks in the UC-NI zone. It also contravenes several provisions of the Comprehensive Plan. The Landing site is located within the Urban Center North-I (UC-NJ) Comprehensive Plan land use designation. The Landing Setback Decision conflicts with several UC-NJ policies, including the following: • Policy LU-287: Discourage parking lots between structures and street right-of- way. • Policy LU-288: Orient buildings to streets to emphasize urban character, maximize pedestrian activity and minimize automobile use within the District. By inteIJJreting RMC 4-2-120.E to allow modifications of the maximum setback in UC-NI zone, the Director is in fact encouraging parking lots between structures and pedestrian-oriented streets. As noted at the outset of this paragragh, RMC 4-l-080A(l) PPELLANTS' PREHEARING BRIEF -25 ;\WP\ASE\SITE PLAN APPEAUPREHEARING BRIEF,FrNAL PREHEARING RIEF.LMO.DOC Buck~Gordon LLP 2025 First Avenue. Suite 500 Seattle, WA 98 '. 21-3140 (206) 382"9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requires interpretations be "in accordance with the intent and purpose statement of the specific regulation and the Comprehensive Plan." That is simply not the case here. B. The Landing Setback Decision Usurped the City Council's Authority to Amend Development Regulations. RMC 4-8-070.1 provides that "[t]he City Council shall review and act on the following: ... Development and zoning regulations text amendment." The Landing Setback Decision violated this provision by attempting to amend the development regulations in RMC 4-2-120.E. The Landing Setback Decision goes beyond mere interpretation of RMC 4-2-120.E. It proposes substantive changes to the Code by adding the setback modification criteria that appear in RMC 4-2-120.C.15, which apply only in the Commercial Neighborhood (CN) and Center Village (CV) zones, to the provisions of RMC 4-2-120.E, which apply in the UC-NI zone. Only the Renton City Council has the authority to amend the City's development and zoning regulations. The procedure for amendment 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. R.l\,fC 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 Landing Setback Decision failed to follow any of the City's text revision procedures and therefore violated RMC 4-9-025. PPELLANTS' PREHEARING BRIEF -26 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEP.FIKAL ?REHEARING RJEF.LMO.DOC BuckeiGordon LLP 2025 First Aver,ue, Sui1e 500 Sec:ttle, W/\ 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C. The Landing Setback Decision Violated the Planning Enabling Act for Code Cities by Amending the City's Zoning Regulations Without a Required Public Hearing. Renton is an optional municipal code city. See RMC 1-5-1.A. Washington's planning enabling act for code cities requires public involvement in the amendment of development regulations. See Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376,389, 868 P.2d 861 (1994). Specifically, RCW 35A.63.100(1) provides that "[ n Jo 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 gazette, if any, of the code city, at least ten days prior to the date of the hearing. RCW 35A.63.070. Municipalities and government agencies are required to apply regulations consistently with governing enabling statutes. Cobra Roofing Service, Inc. v. Department of Labor & Industries, 122 Wnh.App. 402,409, 97 P.3d 17 (2004). To our knowledge, the City did not provide notice or hold a public hearing before the Director attempted to amend RMC 4-2-120.E. The Director's decision violated the provisions ofRCW 35A.63.100(1) by attempting to administratively amend the Code without the public notice and participation required by state law for zoning text amendments. PPELLANTS' PREHEARING BRIEF -27 c\WP'·ASE\SITE PLAN APPEAL\PREHEAR!NG BRIEFflNAL PREHEAR!NG RIEF.LMO.DOC Buck@! Gordon LLP 2025 First Avenue, Suite 500 s~attle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Landing Setback Decision characterized "the requirement for a maximum setback in the UC-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." While this assertion is not supported by the provisions of the Renton Code or the rules of statutory construction,20 notice is required under RCW 35A.63. l 00 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, 123 Wn.2d at 387, 868 P.2d 861 (1994). Further, it is a false assumption that an "error" was made by allowing variance from setbacks in the Commercial Neighborhood (CN) and Center Village (CV) zones without authorizing such modification in the UC-NI zone.21 The CN and CV zones are intended for smaller-scale projects where varying setbacks has much less significance for the City's vision and policies as expressed in the Comprehensive Plan. The setback regulation in the CN and CV zones provides for a maximum of 15 feet, which is not particularly rigorous. On the other hand, the UC-NI zone is tied to very stringent new urbanist parameters involving the streetscape, which is illustrated by the 5-foot maximum. /Ill /Ill /Ill 2° Courts have shown "a long history ofrestraint in compensating for legislative omissions." State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982). 21 One can easily see that a lot of care went into drafting the setback regulations. The provisions are footnoted with precision. PPELLANTS' PREHEARING BRIEF -28 :\WP\ASE\SJTE PLAK APPEAUPREHEARfNG BRIEFIFfNAL PREHEARING RIEF.LMO.DOC Buck'Z'i Gordon LLP 2025 First Avenue. Suite, 500 Seattle, VVA 98 '. 21 ~3140 ,'.206) 382-9540 I 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 D. The Landing Setback Decision Violated the Growth Management Act by Amending the Zoning Code without Required Public Notice. The Growth Management Act (GMA) requires public participation in the development and amendment of zoning regulations. See City of Burien v. Central Puget Sound Growth Management Hearings Ed., 113 Wn.App. 375, 53 P.3d 1028 (2002. RCW 36.70A.035(1) provides as follows: 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 amendments to comprehensive plans and development regulation. The OMA outlines examples ofreasonable notice provisions, including: (i) publishing notice in the newspaper, (ii) "notifying public or private groups with known interest in a certain proposal or in the type of proposal being considered;" (iii) placing notices in appropriate regional or neighborhood journals; or (iv) publishing notice in agency newsletters or sending notice to agency mailing lists. RCW 36. 70A.035(1 )( c) ( emphasis added). The City did not utilize any of these notice suggestions. Because the City provided no such notice, the Landing Setback Decision violated GMA's public participation requirements. E. The Landing Setback Decision Granted a De Facto Variance. The true effect of the Landing Setback Decision was to grant a setback variance. A variance may be lawfully granted only within the guidelines set forth in the zoning PPELLANTS' PREHEARJNG BRIEF -29 ;\WP\ASE\SITE PLAN APPEAL\PREHEARJNG BRIEF\FINAL ?REHEARING RIEF.LMO.DOC Bucke,Gordon LLP 2025 First Aver.ue. Suite, 500 Seattle, WA 98121-3',40 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance ( emphasis added). See Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994); see also Orion Corp. v. State, 103 Wn.2d 441,693 P.2d 1369 (1985). The Director has no authority to issue a variance for setbacks in commercial developments. RMC 4-9-250.B.(l)(c) authorizes administrative variances only for the following uses: (i) Residential Land Uses; (ii) "Commercial and Industrial Land Uses: Screening of surface-mounted equipment and screening of roof-mounted equipment;" and (iii) Proposals Located Within Critical Areas. Modification to setbacks for The Landing is simply not authorized. These setbacks may not be modified except by the Hearing Examiner through the variance process outlined in RMC 4-9-250.B. See RMC 4-9-250.B.(l)(a) and RMC 4-8-070.H(l)(p) (authorizing the Examiner to grant "variances associated with a development permit that requires review by the Hearing Examiner"). Because a variance essentially constitutes governmental approval to deviate from the law, local and state laws provide strict guidelines for approval of a variance permit. Renton's code-required variance process mandates public notice and vetting of the application pursuant to 4-9-250.B(4). Variances under the RMC may only be granted "upon making a determination in writing that the conditions specified below have been found to exist": a. That the applicant suffers undue hardship and the variance is necessary because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings of the subject property, and the strict application of the Zoning Code is found to deprive subject property owner of rights and privileges enjoyed by other property owners in the vicinity and under identical zone classification; PPELLANTS' PREHEARING BRIEF -30 c\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 Frs1 Aven..ie, Suite 500 Seettle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 b. That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated; c. That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is situated; d. That the approval as determined by the Reviewing Official is a minimum variance that will accomplish the desired purpose. RMC 4-9-250.B(5).22 For these reasons, the Landing Setback Decision is ultra vires and void. Thus, it cannot be used to justify violations of the five-foot setback requirement. IX. THE DIRECTOR INCORRECTLY APPLIED THE MODIFICATION CRITERIA IN THE LOWE'S SETBACK DECISION Even assuming that the Lowe's Setback Decision has any effect in this proceeding, the Director fails to correctly apply the decision criteria established for granting setback modifications. The Lowe's Setback Decision purports to authorize setbacks in excess of five feet in that zone. The Director opined that maximum setbacks may be modified if the site plan meets the following criteria (currently found in RMC 4-2-120.C(l5)): a. Orients development to the pedestrian through such measures as providing pedestrian walkways beyond those required by the Renton Municipal Code (RMC), encouraging pedestrian amenities and supporting alternatives to single occupant vehicle (SOV) transportation; and b. Creates a low scale streetscape through such measures as fostering distinctive architecture and mitigating the visual dominance of extensive and unbroken parking along the street front; and 22 Washington)s planning and enabling act for code cities provides similar approval criteria for variances. See RCW 35A.63.l 10(2). PPELLANTS' PREHEARING BRIEF -31 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEFJ'INAL PREHEARING RJEF.LMO DOC Bucke Gordon LLP 2025 Fir~: Avem,e, Suite 500 Seattle, WA 98121-3140 (206) 382"9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 c. Promotes safety and visibility through such measures as discoura6ring the creation of hidden spaces, minimizing conflict between pedestrian and traffic and ensuring adequate setbacks to accommodate required parking and/or access that could not be provided otherwise. Alternatively, the Reviewing Official may also modify the maximum setback requirement if the applicant can demonstrate that the preceding criteria cannot be met; however, those criteria which can be met shall be addressed in the site development plan; d. Due to factors including but not limited to the unique site design requirements or physical site constraints such as critical areas or utility easements the maximum setback cannot be met; or e. One or more of the above criteria would not be furthered or would be impaired by compliance with the maximum setback; or f. Any function of the use which serves the public health, safety or welfare would be materially impaired by the required setback. Lowe's Setback Decision at I. The Director relied solely on the Setback Decision to justify setback violations in the Site Plan but failed to address all but one of the decision criteria cited in the Setback Decision. Instead of addressing these criteria, the Director found as follows: The purpose of the maximum setback requirement is to foster a pedestrian-oriented development. The proposed development incorporates pedestrian-oriented elements within and around the development (such as street furnishings, coordinated paving, awnings, etc.). In particular a private internal street is proposed (Entertainment Blvd), which would have the retail store fronts adjacent to the sidewalk. In addition, the retail store fronts along the northern portion of Park Ave N would also be located adjacent to the sidewalk. Pedestrian pathways are proposed throughout the surface parking lot to connect the various retail districts, would would further encourage a pedestrian environment. Due to the pedestrian- oriented elements included in the development, it would appear that The Landing has complied with the intent of the UC-NI zone and the front and side yard along a street maximum setback may be increased.23 25 23 Director's Site Plan Decision at 5. PELLANTS' PREHEARING BRIEF-32 :IWP\ASE\SITE PLAN APPEALIPREHEARING BRIEHFINAL PREHEARING BRIEF.LMO.DOC Bucke,Gordon LLP 2025 First Ave:1ue, Suite 500 Seattle, WA 98121-3';40 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The Director glosses over the modification criteria in the Lowe's Setback Decision, making no findings regarding criteria (b) (regarding a "low scale streetscape"), criteria (c) (promotion of safety and visibility), or criteria (d) through (t).24 Without such findings, the Site Plan Decision is flawed and should be remanded for further proceedings that address each of the criteria in the Setback Decision. X. THE DIRECTOR'S SITE PLAN APPROVAL DID NOT RELY ON RMC 4-9-250.D TO MODIFY SETBACK REQUIREMENTS. The Applicant has suggested in earlier briefing that setback violations can be justified by RMC 4-9-250.D. However, this authority was not used in the original Site Plan Approval to modify setbacks. The Director's decision cites the Lowe's Setback Decision as the authority for modifying setbacks. It did not mention the modification process under RMC 4-9-250.D modification process. Modification of setbacks under RMC 4-9-250.D is an after-the-fact concoction of the Applicant's and City's attorneys, as reflected in their briefing and in the recent Modification Approval dated March 13, 2007. The Modification Approval does rely on RMC 4-9-250.D in an attempt to authorize setback violations. However, for the reasons discussed in the appeal of the Modification Approval filed by Nicholson and Alliance for End (ASE), that decision only compounds the problem. The Director cannot modify code requirements applicable to a site plan that has already been approved. Additionally, the Modification Approval results in greater setback violations, and again fails to make findings that are adequate to support the Director's conclusions. 25 "Id. PPELLANTS' PREHEARING BRIEF -33 :\WPIASEISITE PLAN APPEAL\PREHEARING BRIEF\F!NAL PREHEARING Bucke Gordon LLP 2025 First Avenue, Suite 500 Seottle, \1\/A 98121-3140 (2G6) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 XI. OTHER NONCONFORMITIES CANNOT BE JUSTIFIED BY MODIFICATION UNDER &VIC 4-9-250.D The Applicant and the City argue that other violations ofRenton's development regulations cited by the Appellants are made legitimate by the Director's reference to "modification" of design regulations. The Appellant recognizes that the RMC allows limited modifications to development regulations. He simply asks that the modification process be in conformance with the law. RMC 4-9-250.0(2) authorizes the Director to make modifications to Renton's development standards in very limited circumstances and under exacting requirements. RMC 4-9-250.D(2) provides a two-part test. Both parts of the test must be met. First, there must be a showing that the standards are "impractical" due to "a special individual reason." Second, a number of limiting criteria exist as to the extent of the modi fiction. 4-9-250 VARIANCES, W ANERS, MODIF1CA TIONS, AND ALTERNATES: A. PURPOSES [ ... ] 3. Modifications: To modify a Code requirement when there are practical difficulties involved in carrying out the provisions of this Title when a special individual reason makes the strict letter of this Code impractical. D. MODIFICATION PROCEDURES: [ ... ] 2. Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of PPELLANTS' PREHEARING BRIEF-34 :IWP'ASEISITE PLAN APPEALIPREHEARJNG BRIEF\FINAL PREHEARJNG RJEF.LMO.DOC Buckt;;:1 Gordon LLP 2025 First Aven-1e, Suite 500 Seattle, WA 98121-3140 (206) 3828540 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. RMC 4-3-100.L imposes an additional layer of requirements for modifications to Urban Design Regulations.25 25 RMC 4-3-100.1(1) provides as follows: PPELLANTS' PREHEARING BRIEF -35 c\WP\ASE\SITE PLAN APPEAL'PREHEARING BRIEFfflNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 F:r~t Aver,ue, Suite 500 Seat':le, WA 98121-3140 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director granted seven modifications to the Applicant in his Site Plan Approval pursuant to RMC 4-9-250.D and RMC 4-3-100.L. 26 Only three are relevant to the Site Plan Appeal and the violations cited above: (1) parking between buildings and pedestrian-oriented streets;27 (2) surface parking in front ofbuildings;28 and (3) surface parking driveways on pedestrian-oriented streets. 29 The three relevant modifications are facially invalid because the Director failed to make the code-required findings necessary for such changes pursuant to RMC 4-9- 250.D(2) and RMC 4-3-100.L.3° For example, the Director did not make any of the following required findings: 1) that each of the proposed modifications is the "the minimum adjustment necessary"; 2) that the deviation manifests high quality design; that the modifications are justified and required for the use and situation intended; or 3) that the modifications meet the appearance intended by the Renton Code. The Director of the Development Services Division shall have the authority to modify the minimum standards of the design regulations, subject to the provisions ofRMC 4-9-250D, Modification Procedures, and the following requirements: a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. 26 Director's Site Plan Approval at 22, § E(5). 27 Id. at 10. 28 Id. at 12. 29 Id. at 12-13. 30 Id. at 10, 12-13. PPELLANTS' PREHEARING BRIEF -36 c\WPIASEISITE PLAN APPEALIPREHEARING BRIEFIFINAL PREHEARING RIEF.LMO.DOC Bucke;; Gordon LLP 2025 F:rst Avenue, Su:te 500 Seettle, WA 98121-31'10 (206) 382-9540 1 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director has also attempted to excuse The Landing's nonconformities by issuing the Modification Approval, which attempts to authorize after-the-fact code modifications for the approved Site Plan. Even in this recent decision, issued on March 13, 2007 (two weeks before the hearing in this matter), the Director fails to make findings required for modifications under RMC 4-9-250.D(2) and RMC 4-3-100.L. These failures are outlined in Nicholson's and ASE's appeal of the Modification Approval and will be further illustrated by evidence at the hearing. XII. LOADING DOCKS MUST ALWAYS BE SCREENED IN THE UC-Nl ZONE. As discussed above, the Site Plan fails to screen loading docks as required by RMC 4-2-120.E. The Applicant and City have argued that loading docks in UC-NI zones are only required to be screened when adjacent to residentially-zoned lots.31 This . h d . 32 argument presumes an except10n t at oes not exist. RMC 4-2-120.E (page 2 -130.3 ofRenton's Development Regulations) provides that "[p Jarking, docking, and loading areas for truck traffic shall be off-street and screened from view of abutting public streets."33 See Exhibit Q-2 to Third Buck Deel. This standard does not reference RMC 4-4-095, which contains the exception for residential zoning.34 Therefore, the Applicant and the City incorrectly cite "Screening" Development 31 See Applicant's Response to Appellants" Motion to Remand Site Plan Approval at 6; City ofRenton's Reponses to Appellants' Motion to Remand Site Plan Approval at 7. 32 See Director's Site Plan Decision at 5 ("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."). 33 Appellants' Motion to Remand Site Plan Approval at 4 and Exhibit G. 34 The "Loading Docks" standard references RMC 4-4-080 and RMC 10-10-13 generally, not RMC 4-4- 095. PPELLANTS' PREHEARING BRIEF -37 ,\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF,FlNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 Firs~ Avenue, Su:tc:: 500 Seattle, WA 98'.21-3140 ,:206) 382-9540 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Regulation RMC 4-2-120.E on page 2 -130.2, as the source of The Landing site plan violation. See Exhibit Q-1 to Third Buck Deel. The Applicant and the City cannot avoid examination of the Site Plan's code violations by inventing exceptions to Renton's development standards. XIII. DUE TO LARGE PROJECT SCALE, A PUBLIC HEARING AND A DECISION BY THE HEARING EXAMINER IS REQUIRED. A public hearing before the Hearing Examiner is required by RMC 4-9-200.D. Because a public hearing is required, the Hearing Examiner is the appropriate official to take action on this project, not the Director. RMC 4-9-200.G(12). A. The Director Illegally Bvpassed the Code-Required Public Hearing. I. The Environmental Review Committee Failed to Make an Appealable Determination Regarding to Need for a Public Hearing. The SDPR regulations require a determination by the Environrne ntal Review Comrniteee (ERC) regarding whether a public hearing is required: Environmental Review Committee to Determine Necessity for Public Hearing: Upon receipt of final departmental comments and after the close of the public comment period, the Environmental Review Committee shall determine the necessity for a public hearing pursuant to subsection D2a of this Section. RMC 4-9-200.G(9) (emphasis added). The ERC's decision is appealable to the Hearing Examiner. RMC 4-9-200.G(l 0). There is no exception to the requirement of an ERC determination. PPELLANTS' PREHEARING BRIEF -38 ,\IVPIASEISITE PLAN APPEAUPREHEARING BR!Ef'HNAL PREHEARING RIEF.LMO.DOC Buck~ Gordon LLP 2025 F'rst Avenue. Suit<:: 500 Seattle, WA 98121-3140 (206) 382,9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It appears that the ERC never made a decision regarding the need for a public hearing. The Director's decision does not mention the appealable determination required by RMC 4-9-200.G(9)-(10). 2. A Public Hearing is Required for The Landing. The SDPR regulations provide 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: 1. Master Plans: a. All Master Plans proposed or required per subsection B of this Section, Master Plan Review, Applicability. Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing. b. Exception for Planned Actions: A hearing before the Hearing Examiner is not required if both of the following criteria are met: i. One or more public hearings were held where public comment was solicited on the proposed Planned Action Ordinance, and ii. The environmental impact statement for the planned action reviewed preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements. PPELLANTS' PREHEARING BRIEF -39 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRlEF\FlNAL PREHEARING RIEF.LMO.DOC Buck 15?, Gordon LLP 2:::25 F,rst Avenue, Suite 500 Seattle, WA 95121-3140 '.206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Site Plan Review: a. Significant Environmental Concerns Remain: The Environmental Review Committee determines that based on departmental comments or public input there are significant unresolved concerns that are raised by the proposal; or b. Large Project Scale: The proposed project is more than: v. Three hundred (300) parking stalls; or vi. Ten (I 0) acres in size of project area. RMC 4-9-200.D (emphasis added). If the ERC determines that there are unresolved concerns about the proposal, a public hearing is needed. A public hearing is also required if a project includes more than 300 parking stalls or encompasses an area greater than IO acres. The Site Plan triggers both of these criteria for a public hearing. First, there are a number of unresolved concerns about The Landing's design and mitigation of its impacts, as argued by Nicholson. The Site Plan also exceeds parameters for "Large Project Scale" in RMC 4-9-200.D(2)(b ): the Site Plan calls for 2,630 parking stalls -nearly 10 times the threshold number of 300; and the site consists of 38.22 acres, an area that exceeds by a factor of four the project area threshold. B. The Director Usurped the Hearing Examiner's Decision Making Authority. The RMC provides for Hearing Examiner review of all site plan approvals requiring a public hearing, including large-scale projects like The Landing. RMC 4-9- 200.G(l2) provides as follows: PPELLANTS' PREHEARING BRIEF -40 ,\WP\ASEISITE PLAN APPEALIPREHEARING BRIEF\FNAL PREHEARJNG RIEF.LMO.DOC Bucke>Gordon LLP 2025 First Avenue, Suite 500 Seade, WA 98121-31'1-0 (286; 352-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 [ f]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 G 13 of this Section. See also RMC 4-8-070.H(l )(n) (providing for Hearing Examiner review of and action on "[ s ]ite 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. C. A Public Hearing is Necessary to Effectuate the Intent of RMC 4-9-200.D. The Applicant and City argue that a public hearing was not required due to the exception in RMC 4-9-200.D(! )( a): "Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing. "35 Any reliance on this exception is misplaced. The exception in RMC 4-9- 200.D(l )(a) applies only when a public hearing was previously held for Master Plan approval. Here, there was no public hearing during review of The Landing's Master Plan, so a public hearing is required during Site Plan review. The Applicant's and City's literal reading would allow avoidance of any public hearing. This reading is contrary to the intent ofRMC 4-9-200.D and rules of statutory construction. !Ill 35 Applicant's Response to Appellants' Motion to Remand Site Plan Approval at 8; City ofRenton's Response to Appellants' Motion to Remand Site Plan Approval at 4. PELLANTS' PREHEARING BRIEF -41 ,IWPIASE\SJTE PLAN APPEALIPREHEARING BRIEF,FINAL ?REHEARING RIEF.LMO.DOC Bucke Gordon LLP 2025 Firs'. Avenue, Suit-= SOC Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. Under RMC 4-9-200.D, a Public Hearing Must Always Be Held During Master Plan or Site Plan Review, A public hearing must be held for all projects subject to the SDPR regulations. RMC 4-9-200.D is intended to ensure that at least one public hearing is held, and that the hearing is held at a time when the proposal is sufficiently detailed to inform the public: In all cases, the public hearing for Master Plan or Site Plan Review should be conducted concurrently with any other required hearing, such as rezone or subdivision, if the details of the development are sufficiently defined to permit adequate review. RMC 4-9-200.D ( emphasis added). This language presupposes the occurrence of at least one public hearing for Master Plan or Site Plan review. 2. The Exception in RMC 4-9-200.D(l)(a) Does Not Apply When There is No Public Hearing During Master Plan Review. RMC 4-9-200.D( 1 )(b) requires a public hearing for all Master Plans, with a limited exception for Planned Actions: Exception for Planned Actions: A hearing before the Hearing Examiner is not required if both of the following criteria are met: i. One or more public hearings were held where public comment was solicited on the proposed Planned Action Ordinance, and ii. The environmental impact statement for the planned action reviewed preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements. PPELLANTS' PREHEARING BRIEF -42 1\WP'ASEISITE PLAN APPEALIPREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.OOC Bucki\:I Gordon LLP 2C25 First Avenue, Suite 500 Seattle, WA 98121-314'.J 1206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When this exception is applied during Master Plan review, the exception in in RMC 4-9- 200.D(l)(a) cannot apply to Site Plan review. Otherwise, there will be no public hearing during Master Plan or Site Plan review. 3. No Public Hearing was Held For The Landing's Master Plan. There was no public hearing during Master Plan review for The Landing. The Director cited the exception for Planned Actions in RMC 4-9-200.D(l)(b).36 Now the Applicant and City rely on another exception to avoid a public hearing during Site Plan review. As a result, the public has never had a chance to review details such as the proposed parking areas, setbacks, and other auto-oriented elements of the The Landing. The Landing is precisely the type of large-scale project which merits a public hearing at the Master Plan or Site Plan stage, in addition to any hearings that may have been held at an earlier, conceptual stage of planning that lacks any detail about the project that will ultimately be built. At a minimum, the ERC should have had the opportunity to determine whether, "based on departmental comments or public input there are significant unresolved concerns that are raised by the proposal" RMC 4-9-200.D(2)(a).37 36 This excetion does not apply because the EIS for the Planned Action did not review "preliminary conceptual plans for the site which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements." RMC 4-9- 200.D( !)(b)(ii). 37 In making this determination, the ERC should also consider whether the EIS for the Planned Action reviewed a conceptual plan "which provided the public and decision-makers with sufficient detail regarding the scale of the proposed improvements, the quantity of the various types of spaces to be provided, the use to which the structure will be put, and the bulk and general form of the improvements." RMC 4-9- 200.D(l )(b )(ii). PPELLANTS' PREHEARING BRIEF -43 :\WPIASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RlEF.LMO.DOC Buck~ Gordon LLP 2025 First Ave:1ue, SJite 500 Seat~le, VVA 98121-3140 (206) 382-9540 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4. The Applicant's and City's Arguments Violate Rules of Statutory Construction. The Applicant's and City's reading ofRMC 4-9-200.D(l)(a) is contrary to rules of statutory construction. Ordinances must be interpreted: (a) in their entirety, reviewing all provisions in relation to each other; and (b) to best advance and effectuate the municipality's legislative purpose. See HJS Development, Inc. v. Pierce County, 148 Wn.2d 451, 61 P.3d 1141 (2003); Eugster v. City a/Spokane, 118 Wn.App. 383, 76 P.3d 741 (2003). A reading ofRMC 4-9-200.D(l)(a) that results in no public hearing conflicts with its central purpose. As discussed above, the SDPR regulations intend at least one public hearing during either Master Plan or Site Plan review. The City and Applicant misapprehend the meaning of"may" in RMC 4-9- 200.D( I)( a) ("Where a Master Plan is approved, subsequent Site Plans submitted for future phases may be submitted and approved administratively without a public hearing"). (emphasis added). The permissive "may" does not equate to a mandatory "shall." Courts have found that the word "may" conveys discretion. "According to Webster's Third New International Dictionary (1969), 'may', in its ordinary and usual meaning, conveys the idea of choice, option or discretion. The general rule of statutory construction has long been that the word 'may' when used in a statute or ordinance is permissive and operates to confer discretion." In re Guardianship of Johnson, 112 Wn.App. 384,387 (2002) (internal citations omitted).38 38 See also National Elec. Contractors Ass'n v. Rive/and, 138 Wn.2d 9, 28 (1999); In re Marriage of Tsarbopoulos, 125 Wn.App. 273, 281 (2004). PPELLANTS' PREHEARING BRIEF -44 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BR!EF\FINAL PREHEARJNG RIEF.LMO.DOC Bucke,Gordon LLP 2025 f=irst Avenue, Su;te 500 Sea~t!e, WA 98121 "3140 (206) 332-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Here, the word "may" in RMC 4-9-200.D(J)(a) grants discretion to the ERC regarding whether a public hearing is required. It does not prohibit the ERC from requiring a hearing, but gives the ERC a choice. XIV. IN VIOLATION OF RMC 4-6-070, THE CITY FAILED TO PERFORM A CONCURRENCY TEST FOR THE LANDING. RMC 4-6-070 ("Transportation Concurrency Requirements") requires the City to perform a concurrency test for "any construction, building expansion, or change in use which creates additional demand upon or need for transportation facilities and which requires a development permit from the City of Renton." The Transportation Concurrency Requirements are intended to "ensure Renton transportation level of service standards are achieved concurrently with development, or within a reasonable time after development occupancy and use." RMC 4-6-070.A. Contrary to RMC 4-6-070, the Director fails to reference any concurrency test for the Site Plan. There is no evidence that such a test has ever been performed for The Landing. This is a glaring omisssion. The 2003 EIS prepared for the Boeing Renton Comprehensive Plan ("BRCPA EIS") assumed the existence of infrastructure improvements that have not materialized or been funded. For example, freeway ramps that were assumed as a baseline condition in the BRCPA EIS are not funded at this time.39 39 Because the more recent traffic study performed by Transportation Engineering North West (TENW) largely relies on the assumptions and analysis in the BRCPA EIS, that study suffers from the same defects found in the EIS. In order to determine that transportation impacts on surrounding properties and uses have be adequately mitigated, additional study based on existing conditions is needed. These deficiencies can be addressed by performing a transportation concurrency test pursuant to RMC 4-6-070. PPELLANTS' PREHEARING BRIEF-45 :\ 'liP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FINAL PREHEARING RIEF.LMO.DOC Buck/1'1 Gordon LLP 2C25 Fir~: A,eni.;e, Sui:e 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Evidence at the hearing will show that transportation mitigation will not happen "concurrently." XV. THE SITE PLAN FAILS TO ENSURE MITIGATION OF STORMWATER IMPACTS. The Applicant and City have not committed to the stormwater mitigation described in the BRCPA EIS. The EIS assumed that water quality treatment and detention standards in the 2001 Ecology Stormwater Management Manual would be used for all future site development. However, the Applicant apparently continues to rely on a claim of vesting to avoid these standards. The Preliminary Technical Information Report submitted with The Landing Site Plan application (prepared by W &H Pacific and revised May 19, 2006) states that "conveyance facilities" will be based on less stringent standards in the 1990 King County Surface Water Design Manual. If the 1990 standards are used for any element of stormwater mitigation, additional study is needed to ensure that storm water impacts will be adequately mitigated. The declarations filed by the Applicant and Director in the Master Plan appeals were artfully worded to avoid an absolute commitment to the 2001 Ecology standards. Counsel for the Applicant has also refused to stipulate that the 2001 standards would be applied without exception or exemption. Because the Applicant has failed to demonstrate that stormwater and other impacts have been adequately mitigated, the Director's approval of the Site Plan for The Landing violates RMC 4-9-200.E(l)(c) (requiring "[m]itigation of impacts to surrounding PPELLANTS' PREHEARING BRIEF -46 :\WP\ASE\SITE PLAN APPEAL\PREHEARING BRIEF\FrNAL PREHEARING RJEF.LMO.OOC Bucki::, Gordon ccP 2025 First AvenL..e, Suite 500 Seattle, WA 98121-JV,O :206) 382-9540 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 properties and uses") and RMC 4-9-200.E(l )( d) (requiring "[ m ]itigation of impacts of the proposed site plan to the site"). XVI. CONCLUSION For the reasons stated above, the Site Plan Decision should be remanded to the Director for further proce1ings consistent with the RMC and state law. Dated this 23~March, 2007. By:_--\-W-A_(,,~:.'::j,L~=--=- Peter L. c , Attorneys for Brad Nicholson PPELLANTS' PREHEARJNG BRIEF-47 c\WP'ASE\SITE PLAN APPEAL\PREHEARING BRIEF-flNAL PREHEARING RIEF.LMO.DOC Buck~Gordon LLP 2025 Firs~ Avenue. Suite 500 Seattle, WA 98121-3140 (206) 382-9540 r I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 HRG EXAMINER COPY 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 ) ) ) ) ) ) ) ) ) _________________ ) Alliance for South End (ASE) and Brad Nicholson re: ) ) ) ) The Director's Administrative Site Plan Approval) and Interpretation/Policy Decision ) _______________ ) NO. LUA-05-136, SA-A, SM CERTIFICATE OF SERVICE I hereby certify that, on March 23, 2007, I caused to be served the foregoing APPELLANT'S PREHEARING BRIEF, NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL and the following letters: I. March 23, 2007 letter to Ms. Bonnie Walter re "Procedures for Hearing Examiner Filings"; 2. March 23, 2007 letter to Ms. Bonnie Walton re "Notice of Appeal of Site Plan Modification Approval" and Buck & Gordon LLP Check for $75.00; and 3. March 23, 2007 letter to Ms. Bonnie Walter re "Appellant's Prehearing Brief' and this CERTIFICATE OF SERVICE by hand delivery to: /II/ CERTIFICATE OF SERVICE -1 Y:\WP\ASE\SITE PLAN APPEAL\CERTIFICATE OF SERVICE.2007.DOC Buck@ Gordon LLP 2025 Fir-:;t Ave:.ue, Suite 500 Seattle, WA 98121 {206) 332-9540 ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Ms. Bonnie Walton, City Clerk City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 D Via Facsimile D Via Email [El Via Hand Delivery D Via U.S. Mail Ms. Ryan Durkan Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D Via Facsimile D Via Email [l!l Via Hand Delivery D Via U.S. Mail Ms. Zanetta Fontes Renton City Attorney Warren, Barber, & Fontes 100 S. Second Street Renton, WA 98057 D Via Facsimile D Via Email [El Via Hand Delivery D Via U.S. Mail Mr. Jerome Hillis Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 D Via Facsimile D Via Email ~ Via Hand Delivery D Via U.S. Mail Mr. Lawrence J. Warren Renton City Attorney Warren, Barber, & Fontes 100 S. Second Street Renton, WA 98057 D Via Facsimile D Via Email t&l Via Hand Delivery D Via U.S. Mail Mr. Fred Kaufman, Hrg Examiner (c/o Ms. Bonnie Walton, City Clerk) City of Renton I 055 South Grady Way, 7th Floor Renton, WA 98055 D Via Facsimile D Via Email 00 Via Hand Delivery D Via U.S. Mail Subscribed to under penalty of perjury under the laws of the State of Washington this 23rd day of March, 2007 in Seattle, Washington. CERTIFICATE OF SERVICE· 2 Y:\WP\ASE'.\SITE PLAN APPEAL'CERTJFICATE OF SERVICE.2007.DOC ' ,"11~ Ai\ . !;cK.,.A_~'---- L~e M. Overlie Buck QI Gordon LLP 2025 Fir-st Avenue, Suite 500 Seattle, WA 98121 '.206) 382-9540 tt" CITY F RENTON Planning/Building/PublicWorks Department Gregg Zimmerman P.E., Administrator @· ~ :! ; Kathy Keolker, Mayor ~'N'fO:)'----------------------------------- . arch 19, 2007 Mark Hower, Associate Callison Architecture, Inc. 1420 Fifth Avenue #2400 Seattle, WA 98101-2343 SUBJECT: THE LANDING UPDATE B (PARKING GARAGE) REQUEST FOR MINOR MODIFICATION OF APPROVED SITE PLAN (FILE NO. LUA06- 071, SA-A) Dear Mr. Hower, I am in receipt of your letter and attachments dated March 13, 2007 wherein you request revisions to the approved Site Plan for the parking garage (Building 301) of The Landing. The parking garage is located southeast of Logan Avenue NE and north of N 10th Street. As your letter discloses, four minor adjustments to the approved site plan are proposed. The requested revisions are summarized below: 1) Increase in the size of Building 301 from 221,700 square feet to 223,240 square feet (a 1,540 square foot or 0. 7 percent increase in area); 2) Increase in the number of parking stalls within the garage from 675 spaces to 733 spaces; 3) 3-foot reduction in the landscape strip proposed between the parking garage and sidewalk along the Logan Avenue NE frontage; and 4) Enlargement of the proposed building facades and some additional insets on the northwest and southwest corners of the parking garage. Renton Municipal Code Section 4-9-2001, allows minor adjustments to an approved site plan, provided: 1. The adjustment does not involve more than a ten percent (10%) increase in area or scale of the development in the approved site plan; or 2. The adjustment does not have a significantly greater impact on the environment and facilities than the approved plan; or 3. The adjustment does not change the boundaries of the originally approved plan. Analysis of Request The site plan modifications requested and as shown in your March 13, 2007 submittals have been compared to the Site Plan as approved by the Development Services Division Director on August 17, 2006. ---10_5_5_S_ou_t_h_G_ra_d_y_W_a_y __ -R-en-to_n_, -W-a-sh-in-g-to-n-98-0-57 _______ ~- ., 11 E:\D or Till: ClJRVF March 19, 2007 Page 2 The proposed change in square footage for Building 301 would result in a 1,540 square foot increase in the size of the parking garage or 0. 7 percent increase. The proposed changes would not result in more than a 10 percent increase in area or scale of the development. The proposal would not have a greater impact on the environment and facilities, nor would it change the boundaries of the originally approved site plan. The proposed changes to the parking garage are due to an increase in the number of parking spaces from the originally approved 2,630 parking spaces for the proposed development. Previous minor amendments have increased the total number of parking spaces to 2,670, and the current proposal would add another 58 stalls to the development resulting in a new total of 2,728 parking spaces. The proposed additional stalls would result in a total 4 percent increase in the number of parking spaces from the originally approved site plan. The proposed additional parking stalls would not result in a 10 percent increase in the area or scale of the development, would not result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The proposed 3-foot reduction in the landscape strip along Logan Avenue N would not result in a 10 percent increase in the area or scale of the development, would not result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The proposed enlargement of the building facades and the addition of the two insets at the northwest and southwest corners of the parking garage would correspond to the increase in area of the parking garage and would not result in a 10 percent increase in the area or scale of the development, would not result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The project site is zoned Urban Center -North 1 (UC-N 1 ), and is also subject to District C of the Urban Center Design Regulations. All applicable setback, lot coverage, and landscaping standards would be achieved. Decision Based on staff's analysis, I have determined the proposed revisions are within the parameters defined by the Renton Municipal Code. Therefore, the proposed modifications to the site plan are approved subject to the following condition: 1. Prior to the issuance of the final building permit for The Landing, 3 full size copies and 1 8 Y, x 11 inch PMT of a final site plan, building elevations, and landscape plan for the Landing shall be submitted to the Development Services Division project manager. This determination will be final unless a written appeal of this administrative determination -accompanied by the required $75.00 filing fee -is filed with the City's Hearing Examiner within 14 days of the date of this decision. landing updateB parking garage site plan amend.doc March 19, 2007 Page 3 Should you have any questions regarding this determination or the requirements discussed in this letter, please contact Jill Ding, Senior Planner, at (425) 430-7219. Sincerely, 1· r ' ·fft ,~a) {(./CL I Neil Watts, Director Development Services Division cc: LUA-06-071, SA-A Jennifer Henning Jill Ding Parties of Record landing updateB parking garage site plan amend.doc <rr•Seattle<!rt.._ ~~ RE PR ESE NTI NG THE .Seattle :ll)ost-lntelligcnccr RENTON CITY OF ATIN BONNIE WALTON 1055 S GRADY WY RENTON, WA 98055 Re: Advertiser Account #99417404 Ad #: 738738800 3677295 / 3 STATE OF WASHINGTON Counties of King and Snohomish PO Box 70, Seattle, WA 98111 Affidavit of Publication The undersigned, on oath states that he/she is an authorized representative of The Seattle Times Company, publisher of The Seattle Times and representing the Seattle Post-Intelligencer, separate newspapers of general circulation published daily in King and Snohomish Counties, State of Washington. The Seattle Times and the Seattle Post-Intelligencer have been approved as legal newspapers by orders of the Superior Court of King and Snohomish Counties. The notice, in the exact form annexed, was published in the regular and entire issue of said paper or papers and distributed to its subscribers during all of the said period. The Seattle Times The Seattle Post-Intelligencer 03/17/07 03/17/07 Marilyn Peredo 1/111 · .J) Agent---------~ Signature (Y[~J-'~(.__,-' <r• Seattle <rtuw; ~~ REPRESENTING THE .ieattleJJost-lnteUigencCT Re Advertiser Account #99417404 Ad # 738738800 Ad TEXT:NOTICE OF PUBLIC HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON A Public Hearing will be held by the Renton Hearing Exam iner in the Council Chambers on is required .. AU interested persons are invit ed to be present at the Public Hearing. The file may be •reviewed in the office of the Hearing Examiner on the sev enth floor of Renton City Hall. His number is: 425-430-6515. the seventh floor of Renton City Publication Date: Hall, 1055 South Grady Way, Renton, Washington, on March 27, 2007 at 9:00 AM to consider an Appeal of the Director's •Interpretation/Policy Decision and The Landing Site Plan LUA06-071, SA-A. The location of the subject property is: 1002 Park Avenue N. Description: An Administrative Site Plan approval was granted on •August17,2006forthe construe tion of approximately 572,700 square feet of commerclaU retail development with a 12 screen cinema. The proposed development would be con structed on an approximate 38- acre site located within the •Urban Center -North 1 (UC· N1) zoning designation. Proposed site improvements would con sist of landscaping, utllltles and stormwater. An appeal of the Administrative Site Plan •approval has been filed. In July, 2006, the Development Services Director issued a deci sion that modified the setback requirements in the UC-N1 Zone. An appeal of this decision has also been filed. If the hearing on the pending action cannot be completed on the date set in the public notice, the meeting or hearing may be continued to a date certain and no further notice March 17, 2007 CIT~ _IF RENTON Planning/Building/Public Works Department Gregg Zimmerman P.E., Administrator \~; :1l ~ ~ Kathy Keolker, Mayor ~\~·tO~-----...;.---------------------------- arch 13, 2007 William Barton, Associate Callison Architecture, Inc. 1420 Fifth Avenue #2400 Seattle, WA 98101-2343 SUBJECT: THE LANDING UPDATE A REQUEST FOR MINOR MODIFICATION OF APPROVED SITE PLAN (FILE NO. LUA06-071, SA-A) Dear Mr. Barton, I am in receipt of your letter and attachments dated March 2, 2007 wherein you request revisions to the approved Site Plan for Buildings 400-408 of The Landing. These buildings are located north of N 81" Street, east of Logan Avenue N and west of Park Avenue N. As your letter discloses, the following minor adjustments to the approved site plan are proposed: 1) Reconfiguration of the Buildings 400-407 and the addition of Building 408; 2) An increase in the gross square footage of Buildings 400-402 by 42,900 square feet and a decrease in the gross square footage of Buildings 403, and 405-407 by 16,300 square feet; 3) The original connection of Entertainment Blvd between Buildings 403 and 406 to N a•h Street has been replaced with a 20-foot wide pedestrian connection between Buildings 406 and 407; 4) The Parking area located between Park Avenue N and Building 407 (now Building 400) has been removed; and 5) The number of stalls proposed within the surface parking lot abutting N a'h Street south of Buildings 402-405 has increased. Renton Municipal Code Section 4-9-2001, allows minor adjustments to an approved site plan, provided: 1. The adjustment does not involve more than a ten percent (10%) increase in area or scale of the development in the approved site plan; or 2. The adjustment does not have a significantly greater impact on the environment and facilities than the approved plan; or 3. The adjustment does not change the boundaries of the originally approved plan. Furthermore, you also requested the following code modifications: 1) Modification to reduce the UC-N1 5-foot maximum setback requirement; 1055 South Grady Way-Renton, Washington 98057 ""' -~ RENTON i\ H E ,\ l) 0 i: 'I H } C l_' H V J March 13, 2007 Page 2 2) Modification to the Parking and Vehicular Access requirements along Designated Pedestrian-Oriented Streets of the Urban Center Design Regulations; and 3) Modification to the Site Design and Building Location, Building Entries requirements of the Urban Center Design Regulations. Renton Municipal Code Section 4-9-2500 permits modifications to code requirements provided the following criteria are met: Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modif,cation is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f. Will not create adverse impacts to other property(ies) in the vicinity. In addition, pursuant to RMC 4-3-100.L, the Director of Development Services has the authority to modify minimum standards of the design regulations, subject to the criteria of RMC 4-9-2500 listed above, and the following requirements: landing update A site plan modrevised.doc March 13, 2007 Page 3 a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. Analysis of Request Site Plan Minor Amendments The site plan minor amendments requested and as shown in your March 2, 2007 submittals have been compared to the Site Plan as approved by the Development Services Division Director on August 17, 2006. The proposed square footages would result in a gross floor area of 555,600 square feet for The Landing {when considering all of the revisions that have been applied for an approved up to this point), which results in a total reduction of 17,100 square feet from the original 572,700 gross square footage. The proposed changes would result in a 3 percent total reduction of the gross floor area and therefore would not result in more than a 1 O percent increase in area or scale of the development. The proposal would not have a greater impact on the environment and facilities, nor would it change the boundaries of the originally approved site plan. The proposed changes to the parking area layout would result in the addition of 40 parking stalls to the 2,630 originally proposed. The proposal would result in a 2 percent increase in parking stalls and therefore would not result in a 10 percent increase in the area or scale of the development, would no result in a greater impact on the environment and facilities. and would not change the boundaries of the originally approved site plan. The project site is zoned Urban Center -North 1 (UC-N 1 ), and is also subject to District C of the Urban Center Design Regulations. All applicable setback, lot coverage, and landscaping standards would be achieved. Code Modifications The proposed modification to exceed the 5-foot maximum setback requirements applies to Buildings 400-408. The purpose of the maximum setback requirement is to require the fronts and sides of buildings to be located close to the sidewalk, fostering a pedestrian-oriented environment. The original Site Plan decision determined that the landing update A site plan modrevised.doc March 13, 2007 Page4 Landing development incorporated several pedestrian-oriented elements, which resulted in the development as a whole being a pedestrian-oriented project. Therefore, the proposed modification to the maximum 5-foot setback requirements was approved. The proposed reconfiguration of the buildings located along the north side of N 3th Street includes a 20-foot wide pedestrian connection between Buildings 406 and 407 to N 3th Street is in keeping with the conclusions reached in the original decision regarding the pedestrian-oriented nature of the development. In addition, the proposed modification complies with the modification criteria outlined in RMC 4-9-250D. The parking and vehicular requirements on designated pedestrian-oriented streets of the Urban Design Regulations specify that no more than 60 feet of the pedestrian- oriented street frontage measured parallel to the curb be occupied by off-street parking and vehicular access. The portion of the surface parking lot located north of Building 400 occupies more than 60 feet along Park Avenue N (a designated pedestrian-oriented street). The original Site Plan decision approved more than 60 feet of surface parking along Park Avenue N due to the desire to consolidate surface parking, which would allow for future infill on the surface parking areas. The proposed minor amendments reduce the amount of surface parking fronting on Park Avenue N and would in keeping with the Director's original Site Plan Approval and comply with the modification criteria outlined in RMC 4-3-100L and RMC 4-9-250D. The requirements for building entries in the Urban Design Regulations specify that the primary entrance of each building shall be located on the fac;ade facing the pedestrian- oriented street. The proposed reconfiguration of Buildings 400-407 results in the site of Building 400 abutting Park Avenue N (a designated pedestrian-oriented street) and the primary entrance facing to the north. To remain in keeping with the pedestrian-oriented design of The Landing, the applicant contends that it is preferable to allow the primary entrance of Building 400 to be located on the north fac;ade towards the surface parking area, which is consistent with the entrances of Buildings 401-407 that abut Building 400. In addition, the applicant contends that requiring the primary entrance of Building 400 to be located along the Park Avenue N frontage would result in a disruption of the pedestrian flow as the primary entrance of this building would not be consistent with the location of the primary entrance of the abutting buildings. The proposed modification complies with the modification criteria outlined in RMC 4-3-1 OOL and RMC 4-9-250D. Decision Based on staff's analysis, I have determined the proposed revisions are within the parameters defined by the Renton Municipal Code and that the proposed modifications comply with the modification criteria outlined in RMC 4-3-1 OOL and 4-9-250D. Therefore, the proposed minor amendments to the site plan and the requested modifications are approved subject to the following condition: 1. Prior to the issuance of the final building permit for The Landing, three full size copies and one 3 Y, x 11 inch PMT of a final site plan, building elevations, and landscape plan for the Landing shall be submitted to the Development Services Division project manager. This determination will be final unless a written appeal of this administrative determination -accompanied by the required $75.00 filing fee -is filed with the City's Hearing Examiner within 14 days of the date of this decision. landing update A site plan modrcviscd.doc March 13, 2007 Page 5 Should you have any questions regarding this determination or the requirements discussed in this letter, please contact Jill Ding, Senior Planner, at (425) 430-7219. Sincerely, 1Vedtrl:tti Neil Watts, Director Development Services Division cc: LUA-06-071, SA-A Jennifer Henning Jill Ding Parties of Record landmg update A site plan modrevised.doc mt, Seattle <!rim --'-----~ REPRESENTING THE .Seattlcflo"ll-.Jlnfelligcnt:er RENTON CITY OF A TIN BONNIE WAL TON 1055 S GRADY WY RENTON, WA 98055 Re: Advertiser Account #99417404 Ad #: 738738800 3677295 I 3 STATE OF WASHINGTON Counties of King and Snohomish PO Box 70, Seattle, WA 98111 Affidavit of Publication w~7/ The undersigned, on oath states that he/she is an authorized representative of The Seattle Times Company, publisher of The Seattle Times and representing the Seattle Post-Intelligencer, separate newspapers of general circulation published daily in King and Snohomish Counties, State of Washington. The Seattle Times and the Seattle Post-Intelligencer have been approved as legal newspapers by orders of the Superior Court of King and Snohomish Counties. The notice, in the exact form annexed, was published in the regular and entire issue of said paper or papers and distributed to its subscribers during all of the said period. The Seattle Post-Intelligencer 03/17/07 Agent _M_aril_· _yn __ P_e_r_e_d_o __ Signature k/4 fl~ A~= ·-Pe~ ,,,'\ \ \\ \ \ \ \ \ \ 1; "o .,...... ,:::-.. t ,111, Subscribed and sworn to before me on "" '"',;,,, c" .JU-c 7..::-' \;;':-.-~: .•. , ·'' P7,t,.,_ ,< ,:1_/<-t,,,.,.;.. (DATE) =-C:,3-)f/~~io.; '. (NOTARY SIGNATURE) Notary Public in and for the State of Washingfun. residin!J at-Seattle ';: 1.,1 \ -~·(: /,. ...... I;. () • '-' '/ "';'] '; . ./? ., , ,,., ·.: ;1 '.?· '11,~-,.,.-_.:,.-'J I; /:-·-111\1· I"·'', I; .... () ·::-. .' /i' • I ' t 1 •i't\',,. Seattle <!rim ~ REPRESENTING THE Scattfo,oi;t-Jntclligcncer Re Advertiser Account #99417404 Ad # 738738800 Ad TEXT:NOTICE OF PUBLIC HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON A Public Hearing will be held by the Renton Hearing Exam iner in the Council Chambers on Is required .. All Interested persons are invit ed to be present at the Public Hearing. The file may be •reviewed in the office of the Hearing Examiner on the sev enth floor of Renton City Hall. His number Is: 425-430-6515. the seventh floor of Renton City Publication Date: Hall, 1055 South Grady Way, Renton, Washington, on March 27, 2007 at 9:00 AM to consider an Appeal of the Director's •Interpretation/Policy Decision and The Landing Site Plan LUA06-071, SA-A. The location of the subject property is: 1002 Park Avenue N. Description: An Administrative Site Plan approval was granted on •Augusl 17, 2006 for the construe lion of approximately 572,700 square feet of commerclaV retail dev~opment with a 12 screen cinema. The proposed development would be con structed on an approximate 38· acre site located within the -Urban Center· North 1 (UC· N1) zoning designation. Proposed site improvements would con sist of landscaping, utilities and stormwater. An appeal of the Administrative Site Plan -approval has been filed. In July, 2006, the Development Services Director issued a deci sion that modified the setback requirements in the UC·N1 Zone. An appeal of this decision has also been filed. If the hearing on the pending action cannot be completed on the date set In the public notice, the meeting or hearing may be continued to a date certain and no further notice March 17, 2007 BuckG, Gordon LLP VIA FACSIMILE Ms. Bonnie Walton City Clerk City of Renton 1055 South Grady Way Renton, WA 98055 February 14, 2007 Re: Fifth Declaration of Peter Buck Dear Ms. Walton: .?C/5 l1re>t AvHHI(--;, SL.it(-; =::'.)0 Se1ttlc, \NI\ 98')1-3140 2%-322-954C L,J6 626 067') Fax. CITY OF RENTON FEB 1 4 2007 RECEIVED CITY CLERK'S OFFICE We submit the following on behalf of appellants Brad Nicholson and Alliance for South End (ASE): • Fifth Declaration of Peter Buck, with exhibits These documents 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. Copies of this letter and the above referenced documents will also be delivered to the Hearing Examiner and all counsel of record. Cc: Fred Kauffman, Hearing Examiner Counsel of Record Y:IWP\ASE\Site Plan Appeal\1021407.doc 2 3 4 5 6 7 8 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 ) ) ) ) ) ) ) ) ) ) ) No. LUA-06-071, SA-A CERTIFICATE OF SERVICE 13 _______________ ) 14 15 16 17 18 19 20 21 22 23 24 25 1 hereby certify that, on February 14, 2007, I served the foregoing FIFTH DECLARATION OF PETER BUCK and this CERTIFICATE OF SERVICE via hand delivery to the following: Mr. Fred Kaulinan Hearing Examiner City of Renton 1055 South Grady Way, 7th Floor Renton. WA 98055 Ms. Ryan Durkan Hillis Clark Martin & Peterson 1221 Second A venue, Suite 500 Seattle. WA 98101-2925 CERTIFICATE OF SERVICE -1 l .Wl',:\SI. cu, I IFIC..\Tl: OI-$1.R\Kll c,21107 DOC Mr. Jerome Hillis Hillis Clark Martin & Peterson 1221 Second A venue, Suite 500 Seattle. WA 98101-2925 Mr. Lawrence J. Warren Renton City Attorney Warren, Barber, & Fontes 100 S. Second Street Renton, WA 98057 Buck Gordon LLP ORIGINAL 202S Fi,c,t Avw;ue, S·Jite 500 Seattle,WA981213148 (206) 382-9540 Ms. Zanetta Fontes 2 Renton City Attorney Warren, Barber, & Fontes 3 100 S. Second Street Renton. WA 98057 Mr. Ross Radley Attorney at Law Pocock Memorial Rowing Center 3316 Fuhrman Avenue E., #250 Seattle, WA 98102 4 5 6 7 8 9 Subscribed to under penalty of perjury under the laws of the State of Washington this 14th day of' February, 2007 in Seattle, Washington. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERT!FlCA TE OF SERVICE -2 \ WP ASF',l TR J IFIC:\ IT()) SI.RVIC[ (JC 1407 DOC Buck Gordon LLP 2025 First A,,enJe. su:te 5DO Seattle, W/" 96121-31~0 (206) 382-9~40 ' 1 2 3 4 5 6 7 8 CITY OF RENTON FEB 1 4 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 9 Nicholson re: ) ) ) ) ) ) ) ) ) ) ) No. LUA-06-071, SA-A FIFTH DECLARATION OF PETER BUCK 10 The Director's Administrative Plan Approval 11 And I 2 The Director's Administrative Interpretation/ Policy Decision 13 14 15 16 17 18 19 20 21 22 23 24 25 _______________ ) I, PETER BUCK, do hereby declare: 1 . Buck & Gordon LLP represents the Alliance for South End (ASE) and Brad Nicholson in this matter. The following is based on my personal knowledge. 2. Pursuant to the Examiner's invitation, attached hereto as Exhibit A is a true and accurate copy of Minutes of the December I 0, 2006 meeting of the Board of Directors of Alliance for South End. For the avoidance of doubt, this document has been in the corporate minute book since December 10, 2006, and it is an accurate reflection of a meeting held on that date. 3. Pursuant to the Examiner's invitation, attached hereto as Exhibit Bis a true and accurate copy of a Consent to Action in Lieu of Special Meeting of the Members and Board of Directors of Alliance for South End ("Consent"), which was executed by all ASE members and ASE's director on February 7, 2007. Pursuant to Article 5 of ASE's Amended Bylaws, the Consent was executed by Brad Nicholson and Margaret Potter via FIFTH DECLARATION OF PETER BUCK -1 y \Wl'\ASE'SITE PLAN ,\PPEAL'•BUCK DECLA.RAl ION 021407 DOC OR\G\NAL Buck Gordon LLP 2025 First A•1enue, Suite 500 Seat:ie,\NA981213140 (ZC6; JC.2-9S40 .. 2 3 4 5 6 7 8 9 10 l 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 email transmission. Copies of the counterparts to the Consent executed by all other ASE members on February 7, 2007 are on file with Brad Nicholson, ASE's Secretary, but are not included with this declaration because of the members' desire to protect their identities. For the avoidance of doubt, this document has been in the corporate minute book since February 7, 2007, and it is an accurate reflection of a consent by ASE's members on that date, which has the same force and effect as a unanimous vote pursuant to Article 5 of ASE's Amended Bylaws. 4. To address the question raised by the Examiner as to what has changed, attached hereto as Exhibit C is a true and accurate copy of a "Compare Documents" reflection of changes from the Bylaws that were in effect at the time of the Examiner's September 5, 2006 decision to dismiss ASE's Master Plan and Planned Action appeals to the Bylaws in effect as of February 7, 2007. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. Executed at Seattle, Washington this l ~a~fFebruary, 2007. FIFTH DECLARATION OF PETER BUCK -2 Y '.\l.'l'\ASE,S!TE PLAN Al'PEAL\HUCK JlECLAR/\TION 021407 DOC Bucke Gordon LLP 2025 First Avenue, Suite SO;J Seattle, WA 9812 -3140 (206) 382-9540 " MINUTES OF SPECIAL MEETING OF BOARD OF DIRECTORS OF ALLIANCE FOR SOUTH END A special meeting of the board of directors of the corporation was held by telephone conference on December I 0, 2006, at I :00 p.m., for the purpose of adopting Amended Bylaws and for the transaction of such other business as might come before the meeting. Margaret E. Potter, the sole member of board of directors, was present and presided as Chair of the meeting. Brad Nicholson, Vice President and Secretary of Alliance for South End, was also present by telephone conference. l. Approval of Amendments to the Bylaws. As the first order of business, the board considered amendment to the corporation's Bylaws. Afier discussion, the following resolution was made, duly seconded and unanimously adopted: WHEREAS, Alliance for South End was established on May 19, 2006, to advance its members' interests in the environment land use planning, and governmental fiscal integrity of the City of Renton: WHEREAS, pursuant to this purpose, the sole Director of Alliance for South End has made a practice of consulting members in advance of decisions concerning appeals or litigation; WHEREAS, on August 31, 2006, after consulting members regarding the "Planned Action·· and "Master Plan" appeals filed with the Hearing Examiner for the City of Renton by ASE. the Director of Alliance for South End held a meeting in which she (i) elected Brad Nicholson as Vice President and Secretary of Alliance for South End; (ii) ratified and confirmed the election of members; and (iii) memorialized historic practice by adopting the following policy to guide future actions of Alliance for South End: The members shall he 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; WHEREAS, on August 31, 2006, Alliance for South End and Brad Nicholson filed two additional appeals with the Hearing Examiner for the City of Renton; WHEREAS, on September 5, 2006, the Hearing Examiner for the City of Renton issued a decision to dismiss the "Planned Action" and "Master Plan" appeals filed by Alliance for South End. which decision stated that the members of Alliance for South End "have no control of the litigation''; WHEREAS. the Board of Directors has considered certain amendments to the Bylaws of Alliance for South End that would memorialize the historic practice of consulting members SEA 19!8714vl :i066:i-lO St.:altk: Exhibit A ' pursuant to the purpose of Alliance for South End and has determined that it would be in the best interests of Alliance for South End to adopt such amendments; NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that the Amended Bylaws, attached hereto and incorporated herein by this reference, are hereby adopted and approved; and FURTHER RESOLVED, that the Alliance for South End's officers are hereby authorized and directed to take all actions as reasonable and necessary to effectuate the amendments to the Bylaws. 2. Direction to Sign Settlement Agreement. As the second order of business, the board discussed the Settlement Agreement and Release negotiated with Brad Nicholson, Harvest Partners, Target Corporation, and the City of Renton. After discussion, the following resolution was made, duly seconded and unanimously adopted: WHEREAS, the members have been polled and there were no objections to signing the Settlement Agreement; WHEREAS, the members have all signed statements confirming they are in agreement with the Settlement Agreement and authorizing Margaret E. Potter to bind ASE and its members to the provisions of the Settlement Agreement; NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that Margaret E. Potter is directed to sign the Settlement Agreement on behalf of the Corporation. 3. Direction to File Appeals. As the third order of business, the board discussed the building permit applications submitted by Harvest Partners for Buildings 101 and 102 in Quadrant C of The Landing's Site Plan and approved by the City of Renton on or about November 28, 2006. which are not subject to the Settlement Agreement. After discussion, the following resolution was made, duly seconded and unanimously adopted: WHEREAS, the members have been polled and there were no objections to filing appeals of the City's decision to approve building permits for Buildings 101 and 102; WHEREAS, Buildings 101 and 102 contain clements which are grossly contrary to the laws of the City of Renton; Sl·:A 11J18714vl 50665-10 Seattle 2 • NOW, THEREFORE, it is hereby resolved as follows: RESOLVED, that Buck & Gordon LLP is directed to file appeals of the City's decision to approve building permits for Buildings IO!andl02. There being no fm1her business to come before the meeting, it was adjourned at I: 11 p.m. ATTEST: Margaret E. Potter Sole Director/Chair SEA 1918714vl :'>0Mi5-10 Si.::nttk Bra ~ ~ '-----------_ Secretary 3 SEA 19188J9v2 ."i0665-10 Scuttle AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: December 10, 2006 TABLE OF CONTENTS Page ARTICLE I Membership ............................................................................................................... I Section 1.1 Qualifications .......................................................................................................... I Section 1.2 Rights of Members .................................................................................................. I Section 1.3 Certificates of Membership ..................................................................................... 2 Section 1.4 Status of Membership .............................................................................................. 2 Section 1.5 Termination of Membership .................................................................................... 2 ARTICLE 2 Meetings of Members ................................................................................................ 2 Section 2.1 Annual Meetings ..................................................................................................... 2 Section 2.2 Special Meetings ..................................................................................................... 2 Section 2.3 Notice of Meetings .................................................................................................. 3 Section 2.4 Quorum .................................................................................................................... 4 Section 2.5 Voting ...................................................................................................................... 4 Section 2.6 Meetings Held by Telephone or Similar Communications Equipment .................. 4 Section 2.7 Consultation with Members Regarding Major Decisions ....................................... 4 ARTICLE 3 Board of Directors ...................................................................................................... 4 Section 3. I Powers and Qualifications ....................................................................................... 4 Section 3 .2 Number and Term ................................................................................................... 4 Section 3 .3 Committees .............................................................................................................. 4 Section 3 .4 Election .................................................................................................................... 5 Section 3.5 Removal .................................................................................................................. 5 Section 3.6 Vacancies ................................................................................................................ 5 ARTICLE 4 Meetings of Board of Directors .................................................................................. 5 Section 4.1 Annual Meeting ....................................................................................................... 5 Section 4.2 Special Meetings ..................................................................................................... 5 Section 4.3 Notice of Meetings .................................................................................................. 5 Section 4.4 Quorum .................................................................................................................... 6 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment .................. 7 ARTICLE 5 Actions by Written Consent ....................................................................................... 7 ARTICLE 6 Waiver of Notice ........................................................................................................ 7 ARTICLE 7 Officers ....................................................................................................................... 7 Section 7.1 Officers Enumerated ............................................................................................... 7 Section 7 .2 President .................................................................................................................. 7 Section 7.3 Vice President ......................................................................................................... 8 Section 7.4 Secretary .................................................................................................................. 8 Section 7.5 Treasurer. ................................................................................................................. 8 Section 7.6 Vacancies ................................................................................................................ 8 Section 7. 7 Salaries .................................................................................................................... 8 Section 7. 8 Removal .................................................................................................................. 8 Sl=:A l918819v2 50665-l(J Seattle ARTICLE 8 Administrative and Financial Provisions ................................................................... 8 Section 8 .1 Fiscal Year.. ............................................................................................................. 8 Section 8.2 Loans Prohibited ..................................................................................................... 8 Section 8.3 Corporate Seal ......................................................................................................... 8 Section 8.4 Books and Records .................................................................................................. 8 Section 8.5 Amendment of Articles oflncorporation ................................................................ 9 Section 8.6 Amendment of Bylaws ............................................................................................ 9 Section 8. 7 Rules of Procedure .................................................................................................. 9 SEA \918819v2 506(i5-JO Seank 11 AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 MEMBERSHIP Section 1.1 Qualifications. 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, if any, 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. 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 term 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 of Incorporation, 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, if not 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 ): SEA 1918819v2 5066'1-IO Semtk (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 (.j) 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 of law. 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' nan1es 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 any 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 ofa Member pursuant to Section 1.1 of these Bylaws. Removal shall require the affirmative vote of three-fourths (3/4'1is) of directors present at a duly held meeting of the board of directors. In the event that any SLtch termination is contemplated, the board of directors shall notify the :v!ember 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 to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the board, the termination may be immediate, without prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expire, and for the transaction of such other business as may properly come before the meeting, shall be held each year at the registered office of the corporation, on the l st day of April, at 10:00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half(l/2) of the SEA 1918819v2 50665-10 Seattle 2 votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (I 0) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall he delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten (10) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. Section 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2,3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to ill1 address designated by the recipient for that purpose. Section 2,3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. SEA 1918819v2 50665-10 SeaLtle 3 Section 2.4 Quorum. Members holding one-tenth ( 1/1 O'h) of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney-in-fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting 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. ARTICLE3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (I). The Members, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in numher shall have the effect of shortening the term of any incumbent. Each director shall hold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said SEA 1918819v2 5066.'.'-10 Seattle 4 resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation; amend the Articles of Incorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting, to hold office until the expiration of the term of office of the class of directors into which elected, and until bis, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address. location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, whenever in their judgment the best interests of the corporation will be served thereby. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution oftbc membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three (3) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be reqnired. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by sr.A 1918810v2 50665-10 Seattle 5 regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 Consent to Notice by Email. If notice is provided to directors by email. it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action SEA 19l8819v2 50M15-l0 Seattle 6 to either the person acting as secretary of the meeting before the adjourmnent of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications eq uipmcnt by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taken at a meeting of the Members or board of directors ( or its committees) of the corporation, may be taken without a meeting if a consent in v,Titing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Bylaws, "executed" means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE6 W AIYER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7 .1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors, and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He/She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. SEA 1918819v2 50(165-10 Seattle 7 Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records. Section 7 .5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7. 7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7 .8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. Section 8.1 December 31. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Fiscal Year. The last day of the corporation's fiscal year shall be Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles oflncorporation and Bylaws; a list of Members. including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers· and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any Member of more than three (3) months' standing or a representative of more than five percent (5%) of the membership. Costs of inspecting or copying SEA 19188!9v2 50665-10 Se,1ttk 8 shall be borne by such Member except for copies of A11icles oflncorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation may be amended by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote ofa majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8. 7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles oflncorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on December I 0, 2006. SEA J9188!9v2 50665-10 Scullle . t:<... < -d ·~14 BN~n. ~cretary 9 CONSENT TO ACTION IN LIEU OF SPECIAL MEETING OF THE MEMBERS AND BOARD OF DIRECTORS OF ALLIANCE FOR SOUTH END The undersigned, being all of the members and directors of Alliance for South End (the "Corporation") consent to the following actions of the members and board of directors in lieu of holding a special meeting but with the same force and effect as if a special meeting had been held after proper call and proper notice. This action shall be effective when a copy of this consent is executed by all members and directors listed below, whether on a single document or in any convenient number of counterparts. The undersigned hereby adopt the following resolutions and hereby consent to the taking of the actions herein set forth: Directors Date: RESOLVED, that the Bylaws shall be amended to provide that the Members of Alliance for South End shall have the authority to elect new members and terminate membership, as provided in the Amended Bylaws, attached hereto and incorporated herein by this reference; FURTHER RESOLVED, that the Amended Bylaws are hereby adopted by the board of directors; FURTHER RESOLVED, that the Members hereby approve the Amended Bylaws; and FURTHER RESOLVED, that the Alliance for South End's officers are hereby authorized and directed to take all actions as reasonable and necessary to effectuate the amendments to the Bylaws. 2/07 /2007 ______ _ _Margaret E. Potter _______ _ Members Date: 2/07/2007 ___ ---- Date:-------·--- Date: SEA 1946204vl 0050665-000010 Seanlc/2 13.07 [NAME] Brad Nicholson ________ _ [NAME] [NAME] [NAME] Exhibit 8 SCA 1918819v3 0050665-000010 Seattle • AMENDED BYLAWS OF ALLIANCE FOR SOUTH END Effective: February 7, 2007 TABLE OF CONTENTS Page AR TI CLE 1 Membership ............................................................................................................... 1 Section 1 .1 Qualifications ........................................................................................................... 1 Section 1.2 Rights of Members ................................................................................................... 1 Section 1.3 Certificates of Membership ......................................................... _ ............................ 2 Section 1.4 Status of Membership .............................................................................................. 2 Section 1.5 Termination of Membership .................................................................................... 2 AR TIC LE 2 Meetings of Members ................................................................................................ 2 Section 2.1 Annual Meetings ...................................................................................................... 2 Section 2 .2 Special Meetings ...................................................................................................... 2 Section 2.3 Notice of Meetings ................................................................................................... 3 Section 2.4 Quorum .................................................................................................................... 4 Section 2.5 Voting ..................................................................................................................... .4 Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. ................. .4 Section 2.7 Consultation with Members Regarding Major Decisions ........................................ 4 AR TIC LE 3 Board of Directors ...................................................................................................... 4 Section 3. I Powers and Qualifications ...................................................................................... .4 Section 3 .2 Number and Term .................................................................................................... 4 Section 3. 3 Committees ............................................................................................................. .4 Section 3.4 Election .................................................................................................................... 5 Section 3 .5 Removal ................................................................................................................... 5 Section 3. 6 Vacancies ................................................................................................................. 5 AR TIC LE 4 Meetings of Board of Directors ................................................................................. 5 Section 4.1 Annual Meeting ....................................................................................................... 5 Section 4.2 Special Meetings ...................................................................................................... 5 Section 4.3 Notice of Meetings ................................................................................................... 5 Section 4.4 Quorum .................................................................................................................... 6 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. .................. 7 AR TIC LE 5 Actions by Written Consent.. ..................................................................................... 7 AR TIC LE 6 Waiver of Notice ........................................................................................................ 7 ARTICLE 7 Officers ....................................................................................................................... 7 Section 7. I Officers Enumerated ................................................................................................ 7 Section 7. 2 President. .................................................................................................................. 7 Section 7 .3 Vice President ............................................................................. -............................ 8 Section 7 .4 Secretary .................................................................................................................. 8 Section 7 .5 Treasurer .................................................................................................................. 8 Section 7 .6 Vacancies ................................................................................................................. 8 Section 7. 7 Salaries ..................................................................................................................... 8 Section 7. 8 Removal ................................................................................................................... 8 ARTICLE 8 Administrative and Financial Provisions ................................................................... 8 Section 8. I Fiscal Year ............................................................................................................... 8 SEA l 9188 l 9v3 0050665-000010 Seattle Section 8.2 Loans Prohibited ...................................................................................................... 8 Section 8.3 Corporate Seal .......................................................................................................... 8 Section 8.4 Books and Records .................................................................................................. 8 Section 8.5 Amendment of Articles oflncorporation ................................................................. 9 Section 8.6 Amendment of Bylaws ............................................................................................ 9 Section 8.7 Rules of Procedure ................................................................................................... 9 SEA 1918819v3 0050665-000010 Seattle 11 AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 MEMBERSHIP Section 1.1 Qnalifications. 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 Members: (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, if any, 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 membership at a regular or special meeting of the Members. 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 term 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 oflncorporation, pursuant to RCW 24.03.165(1); (I) any sale, lease, exchange, or other disposition of all or substantially all, of the corporation's property and assets, if not 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); SEA 1918819v) 0050665-000010 Seattle (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 (j) 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 of law. 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 any 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 three-fourths (3/4ths) of the Members. In the event that any such termination is contemplated, the Members shall notify the Member in writing of the reasons for the proposed action, and of the time and place of the meeting of the Members 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 to submit written responses to the stated reasons for termination. In addition, at the meeting, the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the membership, the termination may be immediate, without prior notice, but with full post termination appeal proceedings. ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The annual meeting of the Members for election of directors to succeed those whose terms expire, and for the transaction of such other business as may properly come before the meeting, shall be held each year at the registered office of the corporation, on the 1st day of April, at 10:00 a.m., but in the event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-half(l/2) of the votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty SEA 1918819v) 0050665-000010 Seattle 2 of the secretary to call such a special meeting of the membership at such time and place as the secretary may fix, not less than ten (10) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten {I 0) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. Section 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 2.3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 2.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. SEA 1918819v3 0050665-000010 Seattle 3 Section 2.4 Quorum. Members holding one-tenth (1/lO'h) of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by !he Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney-in-fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting 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. ARTICLE 3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than one (1 ). The Members, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent. Each director shall hold office for a term of three (3) years and until his or her successor shall have been elected and qualified. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said SEA 19!8819v3 0050665-000010 Seattle 4 resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any Member of any such committee or any director or officer of the corporation; amend the Articles oflncorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. The directors shall each be elected by a majority of the Members at each annual membership meeting, to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes may be taken by mail or by electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballots are electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the Members, with or without cause. Section 3.6 Vacancies. The Members shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. The director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Any director appointed by the Members by reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual membership meeting or any membership meeting at which any class of Members of the board of directors is elected. Said meeting shall be held at the same place as the membership meeting unless some other place shall be specified by resolution of the membership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three (3) directors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by SEA 1918819v3 0050665-0000I 0 Seattle 5 regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 Consent to Notice by Email. If notice is provided to directors by email, it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action SEA 1918819v3 0050665-000010 Seattle 6 to either the person acting as secretary of the meeting before the adjournment of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the Jaws of the State of Washington, to be taken at a meeting of the Members or board of directors ( or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be described as such. For purposes of the Bylaws, "executed" means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE 6 W AIYER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in writing or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE? OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors, and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He/She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the membership. SEA l9l8819v3 0050665-000010 Seattle 7 Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the membership, to administer the membership register, to sign all certificates of membership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of membership and other proper documents or records. Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. Section 7. 7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 31. Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of membership, if any; correct and adequate statements of accounts and finances; a list of officers' and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any Member of more than three (3) months' standing or a representative of more than five percent (5%) of the membership. Costs of inspecting or copying SEA 1918819v) 0050665-000010 Seattle 8 shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to membership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles oflncorporation. The corporation's Articles of Incorporation may be amended by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Section 8. 7 Rules of Procedure. The rules of procedure at meetings of the membership and of the board of directors of the corporation shall be the rules contained in The Standard Code of Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles of Incorporation or with any resolution of the board of directors. CERTIFICATION Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on February 7, 2007 . SEA l9188l9v30050665-0000l0 Seattle . -, . / c;:r?/7 / .?1&4/~~ " Brad Nicholson, Secretary 9 AMENDED BYLAWS OF ALLIANCE FOR SOUTH ENDALLIANCE FOR SOUTH E!'.D Effective: Ma:,0 25, 2006Februarv 7, 2007 SEA ~~1918819'3 005066S-OOOQIO Seattle Exhibit C SEA +&--l--J-2-46•·2 5QH 5 l9 l 88 l 9v1 OO.:i066:5-000Q ! 0 Seattle TABLE OF CONTENTS Page ARTICLE I Membership ................................................................................................................ 1 Section 1.1 Eleetioa of Members .......................................................................... Qualifications Section 1.2 Rights of Members .................................................................................................. 1 Section 1.3 Certificates of Membership ..................................................................................... 2 Section 1.4 Status ofMembership .............................................................................................. 2 Section 1.5 Termination ofMembership .................................................................................... 2 ARTICLE 2 Meetings of Members ................................................................................................. 3 Section 2.1 Annual Meetings ...................................................................................................... 3 Section 2.2 Special Meetings ...................................................................................................... 3 Section 2.3 Notice of Meetings .................................................................................................. 3 Section 2.4 Quorum .................................................................................................................... 4 Section 2.5 Voting ...................................................................................................................... 4 Section 2.6 Meetings Held by Telephone or Similar Communications Equipment.. ................ .4 Section 2.7 Consultation with Members Regarding Major Decisions ....................................... 4 ARTICLE 3 Board of Directors ...................................................................................................... 5 Section 3.1 Powers and Qualifications ....................................................................................... 5 Section 3.2 Number and Term .................................................................................................... 5 Section 3.3 Committees .............................................................................................................. 5 Section 3.4 Election .................................................................................................................... 5 Section 3.5 Removal ................................................................................................................... 5 Section 3.6 Vacancies ................................................................................................................. 6 ARTICLE 4 Meetings of Board ofDirectors .................................................................................. 6 Section 4. I Annual Meeting ....................................................................................................... 6 Section 4.2 Special Meetings ...................................................................................................... 6 Section 4.3 Notice of Meetings .................................................................................................. 6 Section 4.4 Quorum .................................................................................................................... 7 Section 4.5 Meetings Held by Telephone or Similar Communications Equipment.. ................. 7 ARTICLE 5 Actions by Written Consent.. ...................................................................................... 7 ARTICLE 6 Waiver ofNotice ......................................................................................................... 8 ARTICLE 7 Officers ....................................................................................................................... 8 Section 7.1 Officers Enumerated ................................................................................................ 8 Section 7.2 President .................................................................................................................. 8 Section 7.3 Vice President .......................................................................................................... 8 Section 7.4 Secretary .................................................................................................................. 8 Section 7.5 Treasurer .................................................................................................................. 8 Section 7.6 Vacancies ................................................................................................................. 8 Section 7.7 Salaries ..................................................................................................................... 9 Section 7.8 Removal ................................................................................................................... 9 ARTICLE 8 Administrative and Financial Provisions .................................................................... 9 Section 8.1 Fiscal Year ............................................................................................................... 9 SEA-l-8-l3"2Hi• 2 59U,5 1918819v3 0050665-000010 Sr.:attle I Section 8 .2 Loans Prohibited ...................................................................................................... 9 Section 8.3 Corporate Seal ......................................................................................................... 9 Section 8 .4 Books and Records .................................................................................................. 9 Section 8.5 Amendment of Bylav,cs ...................................................... Articles oflncorporation 9 Section 8.6 RttlesAmendment of Prneedure ..................................................................... ""B'-'-v.,_,la""'v,"'·s'-__ 9 Section 8.7 Rules of Procedure ................................................................................................... 9 SEA 1&1:21€1 ·2 5G€€?>--J_9.18819v3 00~0665-000010 Seattle II AMENDED AND RESTATED BYLAWS OF ALLIANCE FOR SOUTH END ARTICLE 1 MEMBERSHIP SN·ti(tn"4-~J Eleetien ef MembeFs.Qualifications. 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 di screti on'vlem bcrs: (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, if any, 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 directorsmembership at aeya regular or special meeting thereofofthe Members. Section 1.2 Rights of Members. The rights of the Members shall be ellclusively as follows, attd none of the Member shall ha'< e atty other rights whatsoe,er The Members shall have the right to vote on matters as set forth in these Bvlaws, including: ( 111 The Members shall have voting righ'.s with regard to the question of v,hether to approve a plan of merger or consolidation, pursoant to RCW 21 "03_ 195(1 ). (~1) The Memhers shell have yeting Fights with regard te the questien ef whetheF to approYe a the election of directors. pursuant to RCW 24"03" l 00: (b) any increases or decreases in the number of directors, provided that no decrease in number shall have the effect of shortenin(( the term of any incumbent, pursuant to RCW 24"03_ I 00 (c) the removal of directors at anv time with or without cause or notice, pursuant to RCW 24"03" I 03; (d) all amendments to these Bvlaws, pursuant to RCW 24_03"070; (c} all amendments to the corporation's Articles oflncorporation_ pursuant to RCW 24_03" 165(] ); SEA -l-81~211:1• ~ 506ff 1918819v3 00:10665~000010 Seattk (f) any sale, lease, exchange, or other disposition of all, or substantially all, of the corporation's property and assets of tl,e eorporationjf not in the ordinary course of business, pursuant to RCW 24.03.215(1 ;r-2.; ftl(g) Tl,e Members shall !,ave voting rigl,ts wit!, regard to the question of whetl,er to approve theanv plan of merger or consolidation of the corporation, pursuant to RCW 24.03.19XJ.1 (h) Jl!!Y voluntary dissolution and winding up of the corporation, pursuant to RCW 24.03.220(l;r-l; @(i) The Members shall !,ave votiAg rigl,ts wit!, regard to tl,e questioA of whetl;er to approve aany plan Bfproviding for the distribution of assets in dissolution, pursuant to RCW 24.03.230(l;r-); and (j) anv other matters that may properlv 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 bv operation of law. 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 013era-tioA of law or hy any otflef-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 three-fourths (3/4'1") of the hoard of directors.Members. In the event that any such termination is contemplated, the board of Elirectorsthe Members shall notify the Member in a reeordin writing of the reasons for the proposed action, and of the time and place of the meeting oftl,e hoard of direetorsthe Members 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 JQ_submit written responses to the stated reasons for termination. At tl,e 013tion oftl,e Board ln addition, at the meeting. the subject Member shall be entitled to respond to the stated reasons, and to be heard in his or her own defense. At the option of the membership, the termination may be immediate, without prior notice, but with full post termination appeal proceedings. &f.A.+8-l321e• 2 5PU.:" IQSEA 19!8819v3 0050665-000Pl.Q Seanle 2 ARTICLE 2 MEETINGS OF MEMBERS Section 2.1 Annual Meetings. The C8fj38ratiofl shall hold an annual meeting of the Members for such purposes as the boardelection of directors to succeed those whose terms expire. and for the transaction of such other business as may deteffiline. The annual properly come before the meeting, shall be held each year at a locatieA selected by the board ef direetorsthe registered oflice of the corporation, on the 1st day of MayApril, at 10:00 a.m., but in easethe event that such date shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding day not a holiday. Section 2.2 Special Meetings. Special meetings of the Members for any purpose or purposes may be called at any time by the president of the corporation or by the board of directors, at such time and place as the president or the board of directors may prescribe. Special meetings of the Members may also be called by Members having at least one-:half(l/2) of the votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty of the secretary to call such a special meeting of the Membersmembership at such time and place as the secretary may fix, not less than ten (I 0) nor more than fifty (50) days after the receipt of said request. If the secretary shall neglect or refuse to issue such call within five (5) days of such receipt, the Members making the request may issue the call, specifying the time and place of the meeting. Section 2.3 Notice of Meetings. Notice of the time and place of the annual meeting, and in case of a special meeting, the time, place and purpose or purposes for which the meeting is called, shall be delivered to each Member entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the officers or persons calling the meeting. Notice of regular meetings other than the annual meeting shall be made by providing each Member with the adopted schedule of regular meetings for the ensuing year at any time after the annual meeting and ten ( 10) days prior to the next succeeding regular meeting and at any time when requested by a Member or by such other notice as may be prescribed by these Bylaws. Such notice may be delivered by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. Section 2.3.l Seeti0n 2.3.1 Consent to Notice by Email. If notice is provided to Members by email, it is effective only with respect to Members who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A Member who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any Member is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the Member's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. ~\-181321~• 2 Ml~R5 19SEA 1918819v3 0050665-000010 Seattle 3 Section 2.3.2 Seetian 2.3.2 Delivery of Notice by Email. Notice provided by email to a Member who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. Section 2.3.3 Seetian 2.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any meeting of the Members by posting the notice on an electronic network (such as a listserv). provided that the corporation also delivers to the Member notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 2.3.4 Seetian 2.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 2.4 Quorum. Members holding one-tenth (l/101h) of the votes entitled to be cast at any meeting, represented in person or by proxy, shall constitute a quorum. Members voting by proxy, mail or electronic transmission are present for all purposes of quorum, count of votes, and percentages of total voting power present. The vote of a majority of the votes entitled to be cast by the Members at a meeting at which a quorum is present, shall be necessary for the adoption of any matter voted upon by the Members. Section 2.5 Voting. A Member entitled to vote may vote in person at any meeting, or such Member may vote by mail, electronic transmission (such as email or "web voting"), or by proxy executed by the Member or a duly authorized attorney-in-fact. An executed proxy may be transmitted to the corporation by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, or by telegram or teletype. A proxy shall be valid only if executed and dated within eleven (11) months of the date of the meeting at which the proxy vote is cast. Whenever proposals are to be voted upon by Members, the vote may be taken by mail or by electronic transmission (such as email or "web voting") if the text of each proposal to be voted upon is set forth in the notice of meeting. A vote may be conducted by electronic transmission if the corporation has designated an address, location, or system to which the ballot may be electronically transmitted and the ballot is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Section 2.6 Meetings Held by Telephone or Similar Communications Equipment. Meetings of Members may be conducted by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting, 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. H::A l&IJ218 2--~SF:A 1918819v30050665-0UOOlO Seattle 4 ARTICLE3 BOARD OF DIRECTORS Section 3.1 Powers and Qualifications. The affairs of the corporation shall be managed by the board of directors. Section 3.2 Number and Term. The number of directors of the corporation shall be not less than onellJ The board of directorsMembers, by amendment of these Bylaws, may increase or decrease the number of directors, provided that no decrease in number shall have the effect of shortening the term of any incumbent. Upon the first elee'.ion of directors. the directors shall be divided into Each director shall hold office for a term of three (3) classes, the first class to serve a teffH of one (I) year, the second to serve a tem1 of two (2) years, and the third to serve a term of three (3) years therealler. Each stich director shall hold office for the term for which he or she is elected and until his or her successor shall have been elected and qualified. The teffH of office ofa class of director after those electecl at the first aimual meeting sHall be tHree (3) years. Section 3.3 Committees. The board of directors, by resolution adopted by a majority of the directors in office, may designate and appoint committees of the board. Any such committee shall consist of two (2) or more directors and shall have and exercise such authority of the board of directors in the management of the corporation as may be specified in said resolution. However, no such committee shall have the authority of the board of directors to amend, alter or repeal the Bylaws; elect, appoint or remove any memberMember of any such committee or any director or officer of the corporation; amend the Articles oflncorporation; adopt a plan of merger or adopt a plan of consolidation with another corporation; authorize the voluntary dissolution of the corporation or revoke proceedings therefor; adopt a plan for the distribution of the assets of the corporation not in the ordinary course of business; or amend, alter or repeal any resolution of the board of directors which by its terms provides that it shall not be amended, altered or repealed by such committee. The designation and appointment of any such committee and the delegation of authority to it shall not operate to relieve the board of directors or any individual director of any responsibility imposed upon it, him or her by law. Section 3.4 Election. Af:.er the first ammal meeting, The directors shall each be elected by a majoritv of the Members at each annual membership meeting of the board of directors, to hold office until the expiration of the term of office of the class of directors into which elected, and until his, her or their respective successors are elected and qualified. Such votes mav be taken bv mail or bv electronic transmission (such as email or "web voting") if the name of each candidate to be voted upon is set forth in the notice of the meeting. The election may be conducted by electronic transmission if the corporation has designated an address. location, or svstem to which the ballot may be eleetronicallv transmitted and the ballots are electronicallv transmitted to the designated address. location, or system. in an executed electronicallv transmitted record. Section 3.5 Removal. Any director may be removed by a majority vote of the board of directors whenever in its judgment the best interests of the ceFJ3orati on will be served tHereby'V!embers. with or without cause. S-EA 181~21~ J: 59(85 JGS[A 19188_19v3 0050665-0000!0 Seattle 5 • Section 3.6 Vacancies. The board ofdirectorsMembers shall have the power to fill any vacancy occurring in the board and any directorship to be filled by reason of an increase in the number of directors by amendment to these Bylaws. AflyThe director appointed or elected, as the case may be, to fill a vacancy shall be elected or appointed for the unexpired term of his or her predecessor in office. Anv director appointed bv the Members bv reason of an increase in the size of the board shall stand for election for the remainder of the specified term for such position at the next annual membership meeting. ARTICLE 4 MEETINGS OF BOARD OF DIRECTORS Section 4.1 Annual Meeting. The annual meeting of the board of directors shall be held immediately after the annual Membershipmembership meeting or any Membershipmembership meeting at which any class ofmembersMembers of the board of directors is elected. Said meeting shall be held at the same place as the Membersl,ipmembership meeting unless some other place shall be specified by resolution of the board of directorsmembership at such meeting. Section 4.2 Special Meetings. Special meetings of the board of directors may be held at any place and time, whenever called by the president, secretary, or any three (lldirectors. Section 4.3 Notice of Meetings. No notice of the annual meeting of the board of directors shall be required. Notice of the time and place of any special meeting of the board of directors shall be given by the secretary, or by the director or directors calling the meeting, by regular or express mail, private carrier, personal delivery, email, electronic network posting, facsimile, telegram, teletype, or by personal communication over the telephone or otherwise, at least three (3) days prior to the date on which the meeting is to be held. Neither the business to be transacted nor the purpose of any meeting of the board of directors need be specified in the notice or any waiver of notice of such meeting. Section 4.3.1 SeetieR 1.3.l Consent to Notice by Email. If notice is provided to directors by email, it is effective only with respect to directors who have: (a) consented in writing or by email to receive notices transmitted by email; and (b) designated in the consent the message format that is accessible to the recipient, and the address, location, or system to which these notices may be emailed. A director who has consented to receipt of emailed notices may revoke the consent by delivering (by mail, facsimile or email) a revocation to the corporation. The consent of any director is revoked if the corporation is unable to transmit by email two (2) consecutive notices given by the corporation in accordance with the director's consent, and this inability becomes known to the secretary of the corporation or other person responsible for giving the notice. The inadvertent failure by the corporation to treat this inability as a revocation does not invalidate any meeting or other action. Section 4.3.2 SeetieR 4.3.2 Delivery of Notice by Email. Notice provided by email to a director who has consented to receive notice by such means is effective when it is emailed to an address designated by the recipient for that purpose. ~--&1321G ::'. sou~s lOSEA 19188\9v3 005(!665-000010 Se<1ttli:! 6 Section 4.3.3 8eetiBH 4.3.3 Delivery of Notice by Posting to Electronic Network. The corporation may provide notice of the time and place of any special meeting of the board of directors by posting the notice on an electronic network (such as a listserv), provided that the corporation also delivers to the director notice of the posting by mail, facsimile, or email (pursuant to the recipient's consent to receive notices by email), together with comprehensible instructions regarding how to obtain access to the posting on the electronic network. Section 4.3.4 Seetien 4.3.4 Delivery of Notice by Other Means. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the corporation, with postage thereon prepaid. Other forms of notice described in this section are effective when received. Section 4.3.5 Effect of Attendance at Meeting. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 4.4 Quorum. A majority of the board of directors shall constitute a quorum for the transaction of business except as otherwise provided by law. The act of the majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. At any meeting of the board of directors at which a quorum is present, any business may be transacted, and the board may exercise all of its powers. A director who is present at such a meeting shall be presumed to have assented to the action taken at that meeting unless the director's dissent or abstention is entered in the minutes of the meeting, or unless the director delivers (personally, or by mail, facsimile or email) his or her dissent or abstention to such action to either the person acting as secretary of the meeting before the adjournment of the meeting, or to the secretary of the corporation immediately after the adjournment of the meeting, which dissent or abstention must be in writing or in an email. The right to dissent or abstain shall not apply to a director who voted in favor of such action. Section 4.5 Meetings Held by Telephone or Similar Communications Equipment. Members of the board of directors or its committees may participate in a meeting of the board or such committees by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE 5 ACTIONS BY WRITTEN CONSENT Any corporate action required or permitted by the Articles of Incorporation or Bylaws, or by the laws of the State of Washington, to be taken at a meeting of the Members or board of directors (or its committees) of the corporation, may be taken without a meeting if a consent in writing or by email transmission setting forth the action so taken shall be executed (as defined herein) by all of the Members or directors entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote, and may be S[:' 181 ::'21~ 2 50M~SEA 19 I 8819v3 0050665-0000!0 Seattle 7 • • described as such. For purposes of the Bylaws, "executed" means: (a) a writing that is signed; or (b) an email transmission that is sent with sufficient information to determine the sender's identity. ARTICLE 6 WAIVER OF NOTICE Whenever any notice is required to be given to any Member or director of the corporation by the Articles oflncorporation or Bylaws, or by the laws of the State of Washington, a waiver thereof in v.-riting or by email executed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. ARTICLE 7 OFFICERS Section 7.1 Officers Enumerated. The officers of the corporation shall be a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary by the board of directors, each of whom shall be annually elected by the board of directors, and shall serve until their successors are duly elected and qualified. Any two (2) or more offices may be held by the same person, except the offices of president and secretary. In addition to the powers and duties specified below, the officers shall have such powers and perform such duties as the board of directors may prescribe. Section 7.2 President. The president shall exercise the usual executive powers pertaining to the office of president. He/She shall preside at meetings of the board of directors and committees exercising any authority of the board and of the Membershipmembership. Section 7.3 Vice President. In the absence or disability of the president, the vice president shall act as president. Section 7.4 Secretary. It shall be the duty of the secretary to keep records of the proceedings of the board of directors and of the Membershipmembership, to administer the Membershipmembership register, to sign all certificates of Membershipmcmbership when not signed by the president and when requested by the president to do so, to sign and execute with the president all deeds, bonds, contracts, and other obligations or instruments, in the name of the corporation, to keep the corporate seal, and to affix the same to certificates of Membershipmembership and other proper documents or records. Section 7.5 Treasurer. The treasurer shall have the care and custody of and be responsible for all funds and investments of the corporation and shall cause to be kept regular books of account. The treasurer shall cause to be deposited all funds and other valuable effects in the name of the corporation in such depositories as may be designated by the board of directors, and in general, shall perform all of the duties incident to the office of treasurer. Section 7.6 Vacancies. Vacancies in any office arising from any cause may be filled by the board of directors at any annual or special meeting. SeA-~8+-32H1•·~ 59fl&f IQSEA 1918_~19v3 005066S-000010 Seattle 8 • • Section 7.7 Salaries. The salaries of all officers and agents of the corporation, if any, shall be fixed by the board of directors. Section 7.8 Removal. Any officer elected or appointed may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. ARTICLE 8 ADMINISTRATIVE AND FINANCIAL PROVISIONS Section 8.1 Fiscal Year. The last day of the corporation's fiscal year shall be December 31. Section 8.2 Loans Prohibited. The corporation shall make no loans to any officer or to any director. Section 8.3 Corporate Seal. The board of directors may provide for a corporate seal which shall have inscribed thereon the name of the corporation, the year and state of incorporation and the words "corporate seal." Section 8.4 Books and Records. The corporation shall keep at its registered office, its principal office in this state, or at its secretary's office if in this state, the following documents (in electronic or hard copy form): current Articles of Incorporation and Bylaws; a list of Members, including names, addresses and classes of Membershipmembership, if any; correct and adequate statements of accounts and finances; a list of officers' and directors' names and addresses; minutes of the proceedings of the Members, if any, and of the board, and any minutes which may be maintained by committees of the board. The corporate records shall be open at any reasonable time to inspection by any member Member of more than three (3) months' standing or a representative of more than five percent (5%) of the Membership.membership. Costs of inspecting or copying shall be borne by such Member except for copies of Articles of Incorporation or Bylaws. Any such Member must have a purpose for inspection reasonably related to Membersltipmembership interests. Use or sale of Members' lists by such Member if obtained by inspection is prohibited. Section 8.5 Amendment of Articles of Incorporation. The corporation's Articles of Incorporation mav be amended bv the affirmative vote of a majority of the board of directors, subject to approval by a majority of the Members at any annual or special meeting of the board of directors and of the Members. Seetien S.SSection 8.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed by the affirmative vote of a majority of the board of directors, subject to approval by a majoritv of the Members at any annual or special meeting of the board of directors and of the Members. Seetien S.6Section 8. 7 Rules of Procedure. The rules of procedure at meetings of the Memeershipmembership and of the board of directors of the corporation shall be the rules contained in Roberts' Rules The Standard Code a/Order on Parliamentary Procedure by Alice Sturgis, newly revised, so far as applicable and when not inconsistent with these Bylaws, the Articles of Incorporation or with any resolution of the board of directors. bis" 181321€ 2 59U-l5 IGSE/\ 1918~_19v3 00506(15-000010 Seattle 9 • CERTIFICA TIO!'i Brad Nicholson, being Secretary of Alliance for South End, hereby certifies that the foregoing Bylaws were duly adopted by the board of directors on May 25, ?QO€i. Februarv 7. 2007. fT~, IS132'1GY2 ~)(~SEA 1918819v3 0050665-0QOO!O Seattle d Nicholson. Secretarv I 0 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 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 Building Permit Application Approval for ) Building 200 ) _______________ ) LUA-06-071, SA-A NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL I. INTRODUCTION The Alliance for South End (ASE) and Brad Nicholson (collectively "Appellants") hereby file this Notice of Appeal of the Site Plan Modification Approval issued by tbe Director oftbe City's Development Services Division on March 13, 2007 ("Modification Approval," Exhibit A). The Modification Approval was based on substantial errors in law and/or fact, including violations of RMC 4-9-200 ("Site Development Plan Review" regulations"), RMC 4-3-100 ("Urban Design Regulations"), RMC 4-2-120.E 23 ("Development Standards for Commercial Zoning Designations"), RMC 4-9-250 24 25 NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -1 Y:\WP\ASE\MODIFJCAT!Otc APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307DOC Buck 0 Gordon LLP 202S Fi 0 st Avenue. Su,:e 500 Seatt:e, \/,'A 98121 ·3140 {206) 382"95.',0 1 ("Variances, Waivers, Modifications, and Alternatives"), and R.MC 4-3-100.L 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ("Modification of Minimum Standards" in the Urhan Design Regulations). II. TIMELINESS This appeal is filed pursuant to R.MC 4-9-200.N, which references R.MC 4-8- 11 O.E, specifying a 14-day appeal period for administrative decisions. III. ST ANDING 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's members have absolute control over the direction of the corporation. ASE's Amended Bylaws provide that "[t]he Members shall control the direction of the corporation to the extent permitted by law" and that "[i]t is the intention of the corporation and its Members that its actions be directed, to the extent permitted by law, hy the Members' actions at membership meetings and by the Members' input in all consultations with directors." Members also control the corporation 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; the removal of directors at any time with or without cause or notice; the election of Members and termination of membership; all amendments to ASE's bylaws; and all amendments to ASE's Articles of Incorporation, pursuant to RCW 24.03.165(1). All but one of ASE's members are also directors of the corporation. NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -2 Y:IWP\ASE'MOOIFICATION APPEALINOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Bucko Gordon LLP 2025 First Avenue, Suite 500 Seat<:le, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Brad Nicholson has been elected to the office of President, and members also occupy the positions of First Vice President and Second Vice President. ASE has standing to file this appeal because i) the interests of ASE's members are within the zone of interest to be protected or regulated by the regulations at issue; and ii) ASE's members have suffered and will suffer injury in fact, including but not limited to the following: • 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 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 stormwater, which directly injure them. • ASE has one or more members who wish to have their community planned and development consistent with the provisions of Renton's development regulations and 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 regulations and 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 environmental processing, promises which the City has refused to honor. NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -3 Y,IWP\ASE'MODIFICATION APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Buck~Gordon ccP 2025 First Avenue. Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 As we have disclosed before, this firm also represents WEA Southcenter LLC, the owner of Westfield Southcenter. WEA Southcenter LLC continues to be our client in other matters and contributes some funds to this appeal by ASE. We wish to reiterate, however, that WEA Southcenter LLC is not a member of ASE. ASE's standing in this case has nothing to do with WEA Southcenter LLC. Rather, ASE's standing is established by the standing of its members, all Renton citizens who control AS E's activities. 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 because i) his interests are within the zone of interest to be protected or regulated by the regulations at issue; and ii) he has suffered and will suffer injury in fact, including but not limited to the following: • 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; and 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 illegal processing of the Building Permit Application for Building 200, 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 NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -4 Y:\WPIASE-MODIFICATION APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Buck~ Gordon LLP 2025 First Avenue, Suite 500 Seattle, ',NA 98121-3140 (206) 382-954,J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 Modification Approval Violated RMC 4-9-200 ("Site Development Plan Review" Regulations). The Modification Approval failed to comply with RMC 4-9-200, for reasons that include but are not limited to the following: 1. RMC 4-9-200.I Does Not Authorize After-the-Fact Code Modifications. The Modification Approval relies on RMC 4-9-200.I to approve not only adjustments to the approved Site Plan but also modifications to certain code requirements applicable to the Site Plan. However, RMC 4-9-200.I does not authorize the Director to make such after-the-fact modifications. RMC 4-9-200.I provides as follows: I. MINOR ADJUSTMENTS TO AN APPROVED SITE DEVELOPMENT PLAN: Minor modifications may be permitted by administrative determination. To be considered a minor modification, the amendment must not: 1. Involve more than a ten percent (10%) increase in area or scale of the development in the approved site development plan; or 2. Have a significantly greater impact on the environment and facilities than the approved plan; or 3. Change the boundaries of the originally approved plan. 1 In addition, as a member of ASE, Nicholson is injured in the manner set forth in section III.A above. NOTICE OF APPEAL OF SITE PLAN MODIFICATION AP PROV AL -5 Y:\WPIASEIMODIFICATION APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Buckei Gordon LLP 2025 First Avenue, S:..iite 500 Seattle, WA 98121-3<40 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 While the Director may make "minor adjustments to an approved site development plan," he does not have authority to modify code requirements applicable to an approved Site Plan. See RMC 4-9-200.I (emphasis added). The Director's use of RMC 4-9-200.I to approve after-the-fact code modifications was erroneous. 2. The Modification Approval Usurped the Hearing Examiner's Authority. The Hearing Examiner is the appropriate official to make any necessary adjustments to the Site Plan for The Landing, just as the Examiner was the appropriate official to review and take action on the original Site Plan. 2 RMC 4-9-200.G(l3)(c provides that, for projects subject to Hearing Examiner review, the Examiner "shall have the power to place reasonable conditions on or modify a site development plan in order to satisfy the general purposes of this Section and to achieve consistency with the review criteria." The Director erred by continuing to take action on a Site Plan that is properly reviewed by the Examiner, not the Director. B. The Modification Approval Violated RMC 4-3-100 ("Urban Design Regulations"). In the Modification Approval, the Director concedes that certain elements of the Site Plan do not comply with RMC 4-3-100, the City's Urban Design Regulations. For example, the Modification Approval states as follows: 2 As Appellants have argued in previous appeals, the Director's review and approval of the original Site Plan illegally bypassed the public hearing before the Hearing Examiner, which is required by RMC 4-9-200.D because the project exceeds the thresholds for "Large Project Scale" in RMC 4-9-200.D(2)(b ). A public hearing is also required because there are significant unresolved concerns about the proposal. RMC 4-9- 200.D(2)(a). 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(l2). NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL-6 Yc\WP\ASE\MODIFICATION APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Buckci Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The parking and vehicular requirements on designated pedestrian-oriented streets of the Urban Design Regulations specify that no more than 60 feet of the pedestrian-oriented street frontage measured parallel to the curb be occupied by off-street parking and vehicular access. The portion of the surface parking lot located north of Building 400 occupies more than 60 feet along Park Avenue N (a designated pedestrian-oriented street). Modification Approval at p. 4. This section of the Modification Approval presumably is a reference to RMC 4-3-100.F(l)(b) of the Urban Design Regulations, which provides as follows: i. On Designated Pedestrian-Oriented Streets: (a) Parking shall be at the side and/or rear of a building, with the exception of on-street parallel parking. No more than sixty feet (60') of the street frontage measured parallel to the curb shall be occupied by off-street parking and vehicular access. The Director erred by approving modifications that fail to comply with this and other provisions found in RMC 4-3-100. C. The Modification Approval Violated RMC 4-2-120.E ("Development Standards for Commercial Zoning Designations"). The Director also concedes that certain elements of the Site Plan do not comply with RMC 4-2-120.E, Development Standards for Commercial Zoning Designations. For example, the Modification Approval states that "the proposed modification to exceed the 5-foot maximum setback requirement applies to Buildings 400-408." Modification Approval at p. 3. This appears to be a reference to RMC 4-2-120.E, which provides for a maximum setback of 5 feet for all development within the Urban Center -North 1 zone. NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -7 Y:\WP\ASEw!ODlFICATION APPEALINOTICE OF APPEAL OF SITE PLAN MODlFICATION APPROVAL 032307.DOC Bucke-Gordon LLP 2025 First t..venue. Suite 500 Sea':tie, WA 98-:21-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Director erred by approving modifications that fail to comply with this and other provisions found in 4-2-120.E. D. The Modification Approval Violated RMC 4-9-250 ("Variances, Waivers, Modifications, and Alternatives"). RMC 4-9-250.0(2) provides the following decision criteria for modifications to code requirements: Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgn1ent; c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -8 Y:\WP\ASE\MODIFICA TION APPEAL\NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Bucko Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121·3140 (206) 382·9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 f. Will not create adverse impacts to other property(ies) in the vicinity. RMC 4-9-250.D(2) (emphasis added). This explicitly provision requires the Director to make specific findings regarding each of these criteria before granting a modification. The Modification Approval failed to comply with RMC 4-9-250.D(2). In his discussion of code modifications in the Modification Approval, the Director failed to make specific findings for any of these criteria. Moreover, several of these criteria could not possibly be met by the proposed modifications. For example, the proposed modification must be "the minimum adjustment necessary," which cannot be met by the Director's purported modification of the 5-foot maximum setback requirement to allow setbacks of 90 or more feet. See RMC 4-9- 250.D(2)(a). The Director's failure to make findings for each of the criteria in RJv1C 4-9- 250.D(2) was erroneous. The Director also erred by concluding that the proposed modifications met the criteria in RMC 4-9-250.D. E. The Modification Approval Violated RMC 4-3-100.L ("Modification of Minimum Standards" in Urban Design Regulations). RMC 4-3-100.L(l) provides as follows: The Director of the Development Services Division shall have the authority to modify the minimum standards of the design regulations, subject to the provisions of RMC 4-9- 250D, Modification Procedures, and the following requirements: NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -9 Y:\WP\ASE\MODIFICATION APPEALINOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Buckf11 Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 382-9540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. RMC 4-3-100.L(l) (emphasis added). Thus, proposed modifications to minimum standards in the Urban Design Regulations (RMC 4-3-100) must satisfy the criteria in both RMC 4-9-250.D and RMC 4-3-100.L(l ). The Modification Approval failed to comply with RMC 4-3-100.L(l ). In his discussion of modifications to Urban Design Regulations in the Modification Approval, the Director failed to make specific findings for any of the criteria in RMC 4-9-250.D or RMC 4-3-100.L(l). Here again, several criteria cannot be met by the proposed modifications. For example, the proposed modification must meet "the intent of the applicable design standard." RMC 4-3-100.L(l)(b). This criterion cannot be met by the proposal to allow more than 60 feet of pedestrian-oriented street frontage along Park A venue to be occupied by a surface parking lot, contrary to RMC 4-3-100.F.l(b)(i). The stated purpose of this design regulation is to "allow an active pedestrian environment by maintaining contiguous NOTICE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL -10 Y:I WP\ASE\MOD!F!CA TION APPEAL\NOT!CE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC Bucke Gordon LLP 2025 First Avenue, Suite 500 Seattle, WA 98121~3140 (206) 382-9540 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 street frontages, without parking lot siting along sidewalks and building facades; minimize the visual impact of parking lots; and use access streets and parking to maintain an urban edge to the district. RMC 4-3-100.F. A proposal to allow parking lot siting along sidewalks could not reasonably be found consistent with a purpose to "allow an active pedestrian environment . . . without parking lot siting along sidewalks and building facades." The Director's failure to make findings for each of the criteria in RMC 4-3- 100.L(l) was erroneous. The Director also erred by concluding that the proposed modifications met the criteria in RMC 4-3-100.L(l). V. CONCLUSION For the reasons stated above, Appellants respectfully request that the Hearing Examiner remand the M~cation Approval for further proceedings. Dated this~aay of March, 2007. NOTICE OF APPEAL OF SITE PLAN MODIF1CA TION APPROVAL -11 B y: ___ -\-\-+-1-----=-=---'-'--"'----- P eter L. Buck', Attorneys for Alliance for the South End and Brad Nicholson Buck (1ft Gordon LLP Y:\WP'·ASFMODIFICATION APPEAL\NOTJCE OF APPEAL OF SITE PLAN MODIFICATION APPROVAL 032307.DOC 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 (206) 332-9540 Cit r vF RENTON Planning/Building/Public Works Department Gregg Zimmerman P.E., Administrator \~; '? -. < Kathy Keolker, Mayor f:''\''1'0)''---------------------------------- " arch 13, 2007 William Barton, Associate Callison Architecture, Inc. 1420 Fifth Avenue #2400 Seattle, WA 98101-2343 SUBJECT: THE LANDl~JG UPDATE A REQUEST FOR MINOR MODiFiCATION OF APPROVED SITE PLAN (FILE NO. LUA06-071, SA-A) Dear Mr. Barton, I am in receipt of your letter and attachments pated March 2, 2007 wherein you request revisions to the approved Site Plan for Buildings 400-408 of The Landing. These buildings are located north of N 8th Street, east of Logan Avenue N and west of Park Avenue N. As your letter discloses, the following minor adjustments to the approved site plan are proposed: 1) Reconfiguration of the Buildings 400-407 and the addition of Building 408; 2) An increase in the gross square footage of Buildings 400-402 by 42,900 square feet and a decrease in the gross square footage of Buildings 403, and 405-407 by 16,300 square feet; 3) The original connection of Entertainment Blvd between Buildings 403 and 406 to N 5th Street has been replaced with a 20-foot wide pedestrian connection between Buildings 406 and 407; 4) The Parking area located between Park Avenue N and Building 407 (now Building 400) has been removed; and 5) The number of stalis proposed within the surface parking Jot abutting N 8'" Street south of Buildings 402-405 has increased. Renton Municipal Code Section 4-9-2001, allows minor adjustments to an approved site plan, provided: 1. The adjustment does not involve more than a ten percent (10%) increase in area or scale of the development in the approved site plan; or 2. The adjustment does not have a significantly greater impact on the environment and facilities than the approved plan; or ,. f , 1 3. The adjustment does not change the boundaries·ofthe originally approverj plan. 1 ) Furthermore, you also requested the following code modifications: 1) Modification to reduce the UC-N1 5-foot maximum setback requirement; EXHIBIT A 1055 South Gradv Wav -Renton. Washington 98057 ~: '~·nnt :_!)\~; / March 13, 2007 Page 2 2) Modification to the Parking and Vehicular Access requirements along Designated Pedestrian-Oriented Streets of the Urban Center Design Regulations; and 3) Modification to the Site Design and Building Location, Building Entries requirements of the Urban Center Design Regulations, Renton Municipal Code Section 4-9-250D permits modifications to code requirements provided the following criteria are met: Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided he/she shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection anc! maintainability intended by the Code requirements, based upon sound engineering judgment; ' c. Will not be injurious to other property(ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can be shown to be justified and required for the use and situation intended; and f Will not create adverse impacts to other property(ies) in the vicinity. In addition, pursuant to RMC 4-3-100.L, the Director of Development Services has the authority to modify minimum standards of the design regulations, subject to the criteria of RMC 4-9-250D listed above, and the following requirements: landing upd1.te A sile plan moJrevised.doc March 13, 2007 Page 3 a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E, F, G, H, I, J, and K of the design regulations; b. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental effect on nearby properties and the City as a whole; d. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. Analysis of Request Site Plan Minor Amendments The site plan minor amendments requested and as shown in your March 2, 2007 submittals have been compared to the Site Plan as approved by the Development Services Division Director on August 17, 2006. The proposed square footages would result in a gross floor area of 555,600 square feet for The Landing (when considering all of the revisions that have been applied for an approved up to this point), which results in a total reduction of 17,100 square feet from the original 572,700 gross square footage. The proposed changes would result in a 3 percent total reduction of the gross floor area and therefore would not result in more than a 10 percent increase in area or scale of the development. The proposal would not have a greater impact on the environment and facilities, nor would it change the boundaries of the originally approved site plan. The proposed changes to the parking area layout would result in the addition of 40 parking stalls to the 2,630 originally proposed. The proposal would result in a 2 percent increase in parking stalls and therefore would not result in a 10 percent increase in the area or scale of the development, would no result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The project site is zoned Urban Center -North 1 (UC-N1 ), and is also subject to District C of the Urban Center Design Regulations. All applicable setback, lot coverage, and landscaping standards would be achieved. Code Modifications The proposed modification to exceed the 5-foot maximum setback requirements applies to Buildings 400-408. The purpose of the maximum setback requirement is to require the fronts and sides of buildings to be located close to the sidewalk, fostering a pedestrian-oriented environment. The original Site Plan decision determined that the March 13, 2007 Page 4 Landing development incorporated several pedestrian-oriented elements, which resulted in the development as a whole being a pedestrian-oriented project. Therefore, the proposed modification to the maximum 5-foot setback requirements was approved. The proposed reconfiguration of the buildings located along the north side of N 3th Street includes a 20-foot wide pedestrian connection between Buildings 406 and 407 to N 3th Street is in keeping with the conclusions reached in the original decision regarding the pedestrian-oriented nature of the development. In addition, the proposed modification complies with the modification criteria outlined in RMC 4-9-250D. The parking and vehicular requirements on designated pedestrian-oriented streets of the Urban Design Regulations specify that no more than 60 feet of the pedestrian- oriented street frontage measured parallel to the curb be occupied by off-street parking and vehicular access. The portion of the surface parking lot located north of Building 400 occupies more ihan 60 feet along Park Avenue N (a designated pedestrian-oriented street). The original Site Plan decision approved more than 60 feet of surface parking along Park Avenue N due to the desire to consolidate surface parking, which would allow for future infill on the surface parking areas. The proposed minor amendments reduce the amount of surface parking fronting on Park Avenue N and would in keeping with the Director's original Site Plan Approval and comply with the modification criteria outlined in RMC 4-3-1 OOL and RMC 4-9-250D. The requirements for building entries in the Urban Design Regulations specify that the primary entrance of each building shall be located on the fai;:ade facing the pedestrian- oriented street. The proposed reconfiguration of Buildings 400-407 results in the site of Building 400 abutting Park Avenue N (a designated pedestrian-oriented street) and the primary entrance facing to the north. To remain in keeping with the pedestrian-oriented design of The Landing, the applicant contends that it is preferable to allow the primary entrance of Building 400 to be located on the north fai;:ade towards the surface parking area, which is consistent with the entrances of Buildings 401-407 that abut Building 400. In addition, the applicant contends that requiring the primary entrance of Building 400 to be located along the Park Avenue N frontage would result in a disruption of the pedestrian flow as the primary entrance of this building would not be consistent with the location of the primary entrance of the abutting buildings. The proposed modification complies with the modification criteria outlined in RMC 4-3-1 OOL and RMC 4-9-250D. Decision Based on staff's analysis, I have determined the proposed revisions are within the parameters defined by the Renton Municipal Code and that the proposed modifications comply with the modification criteria outlined in RMC 4-3-100L and 4-9-250D. Therefore, the proposed minor amendments to the site plan and the requested modifications are approved subject to the following condition: 1. Prior to the issuance of the final building permit for The Landing, three full size copies and one 3 Y, x 11 inch PMT of a final site plan, building elevations, and landscape plan for the Landing shall be submitted to the Development Services Division project manager. This determination will be final unless a written appeal of this administrative determination -accompanied by the required $75.00 filing fee -is filed with the City's Hearing Examiner within 14 days of the date of this decision. 1:mdinP-1mrlatc ,\ <;ite nlan mndn•vi<;~rl iiric March 13, 2007 Page 5 Should you have any questions regarding this determination or the requirements discussed in this Jetter, please contact Jill Ding, Senior Planner, at (425) 430-7219. Sincerely, I , , ,, !veJ tU';JT; Neil Watts, Director Development Services Division cc: LUA-06-071, SA-A Jennifer Henning Jill Ding Parties of Record landing update A site plan modreviscd.doc + ..& + CITY JF RENTON Hearing Examiner Fred J. Kaufman 0~ ~ -~ Kathy Keolker, Mayor &N~01~--------------------------- March 19, 2007 Mr. Jerome L. Hillis Hillis Clark Martin & Peterson, P.S. 500 Galland Building 1221 Second A venue Seattle, WA 98101 Re: Request for reconsideration/Clarification of the Hearing Examiner's Decision Issued February 22, 2007. Dear Mr. Hillis: This office has reviewed your request for reconsideration in the above matter and the response follows. As noted in the request, the paragraph quoted contains dicta that did not address the major issue of the Pre-hearing Conference, the standing of the parties to bring an action. If the ordinances of the City permit the Director to take actions in regard to certain land use permits, a possible misstatement in dicta will not affect the Director's power. So in order to be expedient and not open the decision to further challenge and possible delay, this office will not change the decision and rather allow any hearing on the merits to appropriately cite authority for the actions that the Director took in making his decision. If this office can provide any additional assistance, please feel free to write. Sincerely, Wj~r~ Fred Kaufman Hearing Examiner City of Renton FK/nt cc: Zanetta Fontes, Assistant City Attorney Peter L. Buck, Attorney for ASE Ross Radley, Attorney for Mr. Nicholson ----10_5_5_S_ou-th_G_r_a_dy-W-ay---R-e-nt-on-,-W-as-h-in_g_to_n_9_8_05_5_--(4-2-5)_4_3_0--6-51_5 ____ ~ ~ This oaoer contains 50% recvded material. 30% oost consumer AHEAD OF THE CU}{Vl:. Buck~ Gordon LLP H, I(', · Mr. Fred Kaufman Hearing Examiner City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 March 16, 2007 Re: Applicant's Request for Reconsideration/Clarification Dear Mr. Kaufman: I am writing on behalf of appellants Brad Nicholson. ?C":·/~ litst A:vc:rn1c, Sutc ~:=_1c_1 S::<11dc, \1'o'A 93'121-31..J.O 7:.)6-626-067':; f-,,,\ Last week, counsel for Harvest Partners submitted a "Request for Reconsideration/ Clarification" of one statement of dicta in the Examiner's decision dated February 22, 2007. The Renton Municipal Code neither requires nor prohibits the filing of a response to such requests for reconsideration. The protocol in most local proceedings is that the decision maker does not wish to receive responses unless he or she requests them. We believe the request is without merit but will not file a response unless you invite us to do so. Of course, we hope that you would invite a response if you were at all inclined to change your decision. Please let us know if you would like us to file a response to the request. Very truly yours, cc: Parties of Record (:\DOCUMENTS AND SETflNGS\PETE:R\MY DOCUMENTS\DATA\DOCS\HAGG[N LIGllT RAIL\ASE\SITE Pl.AN\LETIER ON RECONSIDERATION DOC 03/16/07 16:12 FAX 206 626 0675 ·suc:k@ Gordon LLP Attorneys. ,:1L Law 14) 001 2025 First Avenue, Suite 500 Seattle, WA 96121-3140 206-382-9540 206-626-0675 Fax www.buckgordon.com FACSIMILE TRANSMITIAL March 16, 2007 To: Company: Mr. Fred Kaufman City of Renton From: Peter L. Buck Regarding: Site Plan Appeal We are transmitting the following: Letter Comments: Hard copy to follow by mail. Telephone: Fax: (425) 430-6515 (425) 430-6523 Number of Pages: 2 If you did not receive all copies, or if any are not legible, please call Jessica at (206) 382-9540 THIS FACSIMILE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN CONFIDENTIAL, PRIVILEGED INFORMIITION. IF THE READER OF THIS COVER PAGE IS NOT THE ADDRESSEE, PLEASE BE ADVISED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS FACSIMILE IS STRICTLY PROHIBITED. IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE CALL IMMEDIATELY AT (206) 362-9540 AND RETURN THIS FACSIMILE TO BUCK & GORDON AT THE ABOVE ADDRESS BY MAIL. THANK YOU. 03/16/07 16:13 FAX 206 626 0675 BUCK & GORDO'i LLP ----14] 002 Buck~ Gordon LLP 2025 First Avenue, Sui.:e 500 Seattle, WA 98121-3140 206-382-9540 Attorneys al Law Mr. Fred Kaufman Hearing Examiner City of Renton 1055 South Grady Way, 7th Floor Renton, WA 98055 March 16, 2007 Re: Applicant's Request for Reconsideration/Clarification Dear Mr. Kaufman: I am writing on behalf of appellants Brad Nicholson. 206-62fi-0675 Fax www.buckgordon.com Last week, counsel for Harvest Partners submitted a "Request for Reconsideration/ Clarification" of one statement of dicta in the Examiner's decision dated February 22, 2007. The Renton Municipal Code neither requires nor prohibits the filing of a response to such requests for reconsideration. The protocol in most local proceedings is that the decision maker does not wish to receive responses unless he or she requests them. We believe the request is without merit but will not file a response unless you invite us to do so. Of course, we hope that you would invite a response if you were at all inclined to change your decision. Please let us know if you would like us to file a response to the request. Very truly yours, cc: Parties of Record C:\DOCUMENTS AND SITTINGS\PEli:H\MY DOCUMENTS\DATA\DOCS\HAGGEN LIGHT RAIL\A$E\S1T£ PLAN\LETIFR ON RECONSIDERATION.DOC ' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • CITY OF RENTON MAR O 8 2007 RECEIVED CITY CLERK'S OFFICE 5 .zc P·'' )$ 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: LUA-06-071, SA-A APPLICANT'S REQUEST FOR RECONSIDERA TJON/CLARIFICA TION The Director's Administrative Site Plan Approval; and The Director's Administrative Interpretation/Policy Decision I. INTRODUCTION On February 22, 2007, the City of Renton Hearing Examiner issued a decision regarding pre-hearing motions in the above-referenced appeals of Alliance for South End (ASE) and Brad Nicholson (the "Decision"). In the Decision, the Hearing Examiner: dismissed the appeal of ASE for lack of standing; found that Nicholson did have standing; and found that the Hearing Examiner does not have jurisdiction to review the Director's Interpretation Decision. Pursuant to RMC 4-8-100.G.4, "Any interested person feeling that the decision of the Examiner is based on ... errors of law or fact" may file with the Examiner a request for reconsideration and the Examiner may, after review of the record, take further action as the Examiner deems proper. Applicant Harvest Partners wishes to clarify one statement of dicta present in the Decision, for purposes of avoiding any future confusion if Nicholson's appeal proceeds to a hearing on the merits. Applicant's Request for Reconsideration/Clarification - Page 1 o/3 ORIGINAL llILI.IS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seatlle WA 98101-2925 206.623.1745; fax 206.623.7789 ' - 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. DISCUSSION The Decision includes a discussion of the Director's Interpretation Decision, including the following section: The two decisions of the Director [The Landing Site Plan Approval and the Director's Interpretation Decision) were unrelated other than the fact that the Site Plan approved by the Director granted a modification, a modification that would not have been permitted absent the prior interpretation, that provided a procedure for a modification where code had not specifically allowed it. Decision, al 2 ( emphasis added). This section of the Decision suggests that the Renton Municipal Code does not permit modifications of development standards such as setbacks in the Urban Design Overlay District. However, as previously briefed by Applicant, 1 the Director did have express authority to modify the setbacks under the Renton Municipal Code in the area where The Landing development is located. The Renton Municipal Code expressly authorizes the Planning/Building/Public Works Administrator or his/her designee to make modifications to development standards in the Urban Design Regulation Overlay District. RMC 4-8- 070.C. !O(vi). The Landing is located in the City's designated "Urban Center Design Overlay District." RMC 4-3-100.B.4. The maximum setbacks at issue are "development standards." RMC 4-2-l 2DE ("Development Standards for Commercial Zoning Designations"). Therefore, the Renton Municipal Code does indeed allow for modifications of development standards. Some confusion may have arisen here, because the Interpretation Decision was previously issued for Lowe's. The Lowe's site is outside of the overlay district; thus, the authority to grant modifications did not exist there absent the Interpretation Decision. In this case, there were two separate sources of authority for the Director's actions. As previously briefed by Applicant, the Director was authorized to modify setbacks under the Interpretation Decision and under the modifications provision of RMC 4-8-070.C. l O(vi). ii 1 See Applicant's Reply to Appellants' Response to Motions to Dismiss Appeals of Interpretation/Policy 28 Decision and Site Plan Approval, at 5-6. Applicant's Request for Reconsideralion/Clarification Page 2 o/3 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seatlle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 & 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2& III. CONCLUSION The Renton Municipal Code expressly permits modifications to development standards in the Urban Design Regulation Overlay District, of which The Landing is a part. Therefore, Applicant respectfully requests that the Examiner delete or clarify the language in the Decision cited above, in order to clarify this point. DATED this 1 r. day of March, 2007. #348403 18449-004 7gtv0J1.doc HILLIS CLARK MARTIN & PETERSON, P.S. (-\ <;;Jl/;J () sy"-..__ /'1, /V--:;, - Jerome L. Hillis, WSBA # l 704 ,T. Ryan Durkan, WSBA #11805 k'aren D. Breckenridge. WSBA #36666 Attorneys for Applicant Harvest Partners Applicant's Request for Reconsideration/Clarification - Page 3 ofJ HILLIS CLARK MARTrN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seat!Ie WA 98101-2925 206.623.1745; fax 206.623.7789 ' 2 3 4 5 6 7 8 9 10 1 I ,.;,TY OF RENTON MARO S 2007 RECEIVED CITY CLERK'S OFFICE ;·.zc ~···1 J-1<3, BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 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, WA 9810 I. I hereby certify that 14 on the 7th day of March 2007, I caused to be delivered via legal messenger on March 8, 15 2007, a true and correct copy of(]) Applicant's Request for Reconsideration/Clarification; 16 and (2) this Certificate of Service to the following: 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 Lav,,Tencc J. Warren, City Attorney Warren Barber & Fontes, P.S. 100 South Second Street Renton, WA 98057 Brad Nicholson c/o Peter L. Buck Buck & Gordon, LLP 2025 First Avenue, Suite 500 Seattle, WA 98121-3140 Certificate of Service -Page 1 of2 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 Ross Radley Law Offices of Ross Radley, Inc. P .S. 3316 Fuhrman Ave. East, Suite 250 Seattle, WA 98102 HILLIS CLARK MARTIN & PETERSON, P.S. ORIGINAL 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 I 7 I 8 19 20 21 22 23 24 25 26 27 28 DATEDthis l_.h. day of March, 2007. #345401 18449-004 7#$1101' doc J/07107 Certificate of Service -Page 2 of 2 HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. Pan Legal Assistant to T. Ryan Durkan HILLIS CLARK MARTIK & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 February 22, 2007 DECISION OF THE HEARING EXAMINER ON MATTERS OF STANDING AND JURISDICTION BROUGHT BY ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND BRAD NICHOLSON, AN INDIVIDUAL This decision will be the second time this office has addressed the issue of standing involving property commonly called the Landing. Both matters involve appeals of various aspects of administrative decision-making. In brief summary, The Landing is a proposed mixed use land use project proposed for approximately 4 7 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 potential land use changes for the property. The City issued an Environmental Impact Statement (EIS). 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 a group challenging current decisions regarding the current proposal and also appealed the current proposal in his own name. 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 ordinance designated as Planned Action uses and activities described in the EIS 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 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 of the new proposal. Those decisions were appealed by two separate associations. It was found that one association, the one that has filed this new appeal, did not have standing while the second association was found to have standing. That second association withdrew their appeal. The association found to not have standing appealed that decision to the City Council. The City Council has not resolved the appeal on standing at this time. One of the identified appellants in this matter, ASE, was also an appellant in the earlier proceeding, hereinafter Landing I. In Landing I, this office found that ASE did not have standing (see, Examiner's Decision dated September 5, 2006) It found ASE had no real control of the litigation and was a sham organization fronting for a competitor which itself could have no standing to challenge City actions. In this proceeding, hereinafter Landing II, ASE again filed an appeal but was joined by Brad Nicholson, an individual who is also the only identified member of ASE. Some of the background has been provided above but the detailed facts of the land use issues or permits are not necessary to determine the standing of the parties. (A third appeal, not yet scheduled at this time, has been filed on the issuance of a building permit (Building permit #B060540) for the project and that matter could be referred as Landing III.) Hearing Examiner's uecision February 22, 2007 Page 2 of7 The parties filed two appeal letters asking that this office review and reverse decisions of the Director. Those appeals were filed on August 31, 2006. In one decision, the Director approved a Site Plan for portions of the Landing project. The facts of that project are unnecessary to detail at this stage of the proceedings. In the second challenged decision, the Director apparently issued an interpretation of a code provision dealing with setbacks from public streets. In that second decision, the Director found that a provision of code omitted a procedure that would allow a modification to the setback requirements. The Director issued his interpretation on July 17, 2006. The two decisions of the Director were unrelated other than the fact that the Site Plan approved by the Director granted a modification, a modification that would not have been permitted absent the prior interpretation, that provided a procedure for a modification where code had not specifically allowed it. Timeliness of Appeal of Administrator's Interpretation Before even tackling the issue of the standing of the parties, this office will deal with the second issue first, the Director's interpretation. This office finds it does not have jurisdiction. The attempted appeal is untimely. This office does not believe it has jurisdiction over the original decision by the Director to graft modification criteria onto the UN-C 1 provisions of the Code. The decision was made on July 17, 2006 and no direct challenge of that decision was made until the parties filed their letter on August 31, 2006. This office does have some qualms about such "rule-making." This does not mean that this office can confer on itself jurisdiction over the matter. Clearly, a decision without any anchor grounding it to a specific matter means few if any players know it was made. As a matter of fact, depending on who requested such a decision, only parties seeking such a positive interpretation might be aware it was made and would have little incentive to appeal or inform others about such an interpretation. Obviously, if a particular interpretation is sought and denied by the Director, at least, there would be a party that would know about the decision and have incentive to lodge an appeal. But the general public, a public that might be affected by such interpretations would be cut out of the process, not be generally informed, and be clueless that an interpretation was issued that could be appealed. In this case, that leaves no one or almost no one with the ability to challenge it. As mentioned at the hearing, this also means that innocent parties reading the existing code have no indication that such an interpretation now is automatically read into the existing provisions. But while such scenarios might be problematic, this office does not grant equitable relief. The decision was made on July 17, 2006 and the appeal was filed on August 31, 2006, which is more than 14 days after the decision and substantially beyond the appeal period. If the parties want relief it would appear that they would need to petition a court and not this office. Applicable Hearing Examiner Code provisions: RMC 4-8-l 10(E)(3) E APPEALS TO EXAMINER OF ADMINISTRA TNE 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) 3. Standing: ' Hearing Examiner's Dec1s10n February 22, 2007 Page 3 of7 b. Standing for Appeals of Administrative Determinations 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 determination. (Ord. 3454, 7-28-1980) The Parties and Filings So we come to the issue of the standing of the parties. There is the association, ASE, a party that in Landing I was found to be without standing. They are back again. They have indicated that things have changed since the last ruling and that ASE should be granted standing. Separately, there is Brad Nicholson who appears as an individual claiming he is injured or will be injured and should be granted standing. There were two appeals filed. One of the appeals challenged the Site Plan approval noting a number ofreasons why it failed to meet the City's criteria for review. This first appeal was filed in the name of both ASE and Brad Nicholson. It was signed by an attorney, signing for ASE. It was not signed by Brad Nicholson. It was accompanied by one filing fee. The second appeal challenged the Director's Interpretation of a provision or possibly lack of a provision allowing modifications of required setback limits. It followed the form and substance of the first appeal mentioned above. It was filed for both ASE and Nicholson, it was signed by the ASE attorney but not Nicholson and it was accompanied by only one filing fee. The City and underlying applicant, Harvest Partners (hereinafter Harvest), claim that neither party should have standing. They claim ASE has not changed its basic foundation or governing structure. They also claim that even if ASE's structure did change, neither the association nor any of its individual members (only Brad Nicholson has been identified although ASE claims it has up to about ten (10) members) suffers the necessary injuries to have associational standing. In regard to Brad Nicholson, the City and Harvest advance the argument that Nicholson did not sign either of the appeals, did not provide an appeal fee for either appeal and was not mentioned in the "prayers" for relief, which only mentions ASE. Perfection of Appeal by Brad Nicholson in the absence of signature and separate filing fee. Again, this office will dispense with the second of these subsidiary issues first. The rules require appeals to be filed in writing (references omitted), contain sufficient information to inform the City about the reasons for the appeal and be accompanied by the appropriate filing fee. There are no other rules about signatures, how many people can join in "one" appeal, how many fees are required if multiple parties join in an appeal or require formal "prayers" for relief. Nicholson, at this point, has sufficient standing to actually allege he has standing to bring an appeal. Nicholson should not be thwarted by the failure of a signature or the payment of a second fee. Neither is required by Code if multiple parties join in an appeal. If there is any problem with a person being improperly added to an appeal and/or not intending to be a party to an appeal, there are plenty of opportunities to rectify such a mistake. On the other hand barring a person due to criteria not included in the requirements for an appeal would be inappropriate. This office will consider the challenges appropriately filed on Nicholson's behalf. Nicholson's actual standing to bring and argue an appeal will be discussed below. Hearing Examiner's L,ecision February 22, 2007 Page 4 of7 ASE's Standing ASE claims that it anticipated the Landing 1 decision of this office based on the questions raised at the original Landing I hearing on standing. ASE recognized that this office had concerns about who directed the organization and who directed the litigation for Landing I. Since ASE apparently expected to appeal additional aspects of the Landing proposal or proposals they recognized a need to address the issues that were raised by those associational standing questions. ASE called a special meeting and adopted a new policy. They also modified bylaws although the date of bylaw changes reflecting the policy change is unclear from the record. The policy was adopted at a special meeting of the Board of Directors held on August 31, 2006, the date that the appeal was filed. The policy, in full, states: "The members shall be consulted by the Board of Directors 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." Unfortunately, ASE appears not to have Jet their tea leaves fully settle. Accepting that this new policy was adopted by ASE, the new policy does little to warm this office to their arguments in this second proceeding. The new policy is not a bylaw but merely a policy and has no legal weight. The Directors consult and seek input but there is nothing that requires them to follow the feedback. The policy is quoted above. The amended bylaws state a more succinct version: "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." The bylaws contain no line repeating the policy statement that "The Corporation shall carry out the directions of the members." The Directors, well, sole Director, can actually "fire" members if they do not further the causes of ASE. ASE is still not governed by its members. The number of members is still a closely held secret but for purposes of ruminating about how ASE works, say there are nine (9) members. For purposes of argument, say, five members decide that the litigation is too costly or that some compromise offered made the Harvest's project and Site Plan acceptable but ASE (whatever or whomever it or they are) decides that settlement is not in the interests of ASE, those five members could be removed from membership. The bylaws allow removal of members if membership is detrimental to the corporation. "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 ... " This office urges both ASE and others to fully read the bylaws and the policy. They are carefully crafted to make sure that ASE gives very little, read no, powers over litigation to its members. The members have very little, actually, no opportunity to derail this litigation or to firmly direct this litigation. The association remains the shell corporation it was in Landing I. ' , Hearing Examiner's Dec,s,on February 22, 2007 Page 5 of7 This office will rely on its decision in Landing I and not repeat its examination of associational standing or why ASE is a sham standing in for a competitor that does not have standing. This office finds ASE does not have standing to appeal either of the Director's decisions. Brad Nicholson's Standing ASE and its attorney or Brad Nicholson, himself, did make one appropriate move. Nicholson joined the appeal as an individual appellant. Brad Nicholson was included on the initial filing papers as an appellant. This office has already dealt with the arguments that Mr. Nicholson was not appropriately made an appellant since he neither signed the appeal letter nor paid a separate appeal fee. As noted above, the absence of a signature and a separate filing fee does not appear to be a bar to his challenge under this office's reading of Code. The City and Harvest next argue even if his signature and fee were not necessary, he has no discernible, individualized interest or injury in a project in north Renton located about two miles from his home. This office, possibly inappropriately, has consistently held that individuals have standing to challenge certain City decisions in administrative and environmental appeals. This office actually found in Landing I, that PASS, the separate citizens' association, had standing to bring that action. This office also previously found that this very individual, Mr. Nicholson, had standing to challenge the adequacy of the Environmental Impact Statement for the Boeing Comprehensive Plan Amendment and Rezone actions. It would be inconsistent to now find he did not have standing when the actual development, the Site Plan in contention, was being reviewed. Given the positions taken by the City and Harvest this office admits that it has trouble figuring out how one challenges potentially improper decisions. While far from suggesting any improper motives, if there were collusion between an applicant and the City, no person or group could possibly challenge a decision. If for instance under Site Plan review, the City approved a 40- story complex (and it has done no such thing) and found justification in its policies but a modification were required, and the applicant was satisfied, no one could challenge that and that, this office believes would be untenable. Such a glaring example might be unfair but it provides a frame ofreferencc. How glaring would the mistake have to be to provide a basis for standing or taken the other way, how small a mistake deprives one of standing because the harm is small. It seems clear that Nicholson has a strong belief that the approved Site Plan violates City policies and/or Code provisions. He argues that allowing it to go forward will harm him either due to being a badly designed project that does not meet code or one that may create severe traffic problems adversely affecting him or cause stormwater problems with water bodies he alleges he uses. The strong belief that there is an error does not demonstrate error. Facts will be required of the appellant to show error. Nicholson should be permitted the opportunity to show those factual harms subject to the normal burdens of proof attached to an administrative appeal and the requirements that the decision below is entitled to substantial weight. Brad Nicholson has standing to file the appeal. Hearing Examiner's ~ ecision February 22, 2007 Page6of7 Decision: The appeal of ASE is dismissed, as they have no standing. The appeal of Brad Nicholson may proceed to arguments on the merits regarding the Site Plan review. This office does not have jurisdiction to review the Director's Interpretation. ORDERED THIS 22nd day of February 2007. FRED J. UFMAN HEARIN ,XAMINER TRANSMITTED THIS 22"d day of February 2007 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 Renton Reporter Attn: Oscar Halpert PO Box 130 Kent, WA 98032 Brad Nicholson 2811 Dayton Avenue Renton, WA 98056 Seattle, WA 98101 Ross Radley Attorney at Law 3316 Fuhrman Ave E., Ste. 250 Seattle, WA 98102 TRANSMITTED THIS 22"d day of February 2007 to the following: Mayor Kathy Keolker Larry Warren, City Attorney Jay Covington, CAO Julia Medzegian, Council Liaison Gregg Zimmerman, PBPW Director Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Larry Rude, Fire Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Dev Services King County Journal ' Hearing Examiner's Dec1s1on February 22, 2007 Page 7 of7 Pursuant to Title IV, Chapter 8, Section IOOGof the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m., March 8, 2007. 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 governed by Title N, 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 filed in writing on or before 5:00 p.m., March 8, 2007. 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 of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness 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 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. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. -([t_.seattle<!rim- ~\g~ REPRESENTING THE ieattle:IIJost-]ntelligencer PO Box 70, Seattle, WA 98111 RENTON CITY OF CLERK'S OFFI 1055 S GRADY WAY RENTON, WA 98055 WActo-Ol,I Re: Advertiser Account #39288303 Ad #: 735553900 Affidavit of Publication 3648690 / 3 STATE OF WASHINGTON Counties of King and Snohomish The undersigned, on oath states that he/she is an authorized representative of The Seattle Times Company, publisher of The Seattle Times and representing the Seattle Post-Intelligencer, separate newspapers of general circulation published daily in King and Snohomish Counties, State of Washington. The Seattle Times and the Seattle Post-Intelligencer have been approved as legal newspapers by orders of the Superior Court of King and Snohomish Counties. The notice, in the exact form annexed, was published in the regular and entire issue of said paper or papers and distributed to its subscribers during all of the said period. The Seattle Times 02/03/07 The Seattle Post-Intelligencer 02/03107 Subscribed and sworn to before me on & ,.f1!!}., r u.'";l.:-·~;'.11 11 ;111 ""-:\_ -?' (DATE) o :_ · ·· .. , 11 YI~ c,(_ AJ / , -. . • . . ,, .. ·-··,;: i,~- -C-f"\..£.A_ .~ ' __ ,·.' ., .. --.. ' . ·· .. <- (NOTARY SIGNATURE) Notary Public in and for the State of Washington, reSidifTg:"at Seattle ---', ... ",. · . . ? /, -~-·. ·"'" . Seattle m'im ~~ REPRESENTING THE Seattlc:1!)0131-lntdligcnccr Re Advertiser Account #39288303 Ad # 735553900 Ad TEXT:NOTICE OF PUBLIC HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON A Public Hearing will be held by the Renton Hearing Exam Iner In the Council Chambers on the seventh floor o1 Renton City Hall, 1055 South Grady Way, Renton, Washington, on Febru ary 13, 2007 at 9:00 AM to con sider motions brought in an •Appeal of the Director's Inter pretatlon/Policy Decision and The Landing Site Plan Appeal LUAOS-071, SA-A. The location of the subject property is: 1002 Park Avenue N. Description: An Administrative Site Plan approval was granted on •August17,2006forthe construe lion of approximately 572,700 square feet of commercial/ retail development with a 12 screen cinema. The proposed development would be con structed on an approximate 38- acre site located within the •Urban Center" North 1 (UC· N1) zoning designation. Proposed site improvements would con sist of landscaping, utilities and stormwater. An appeal of the Administrative Site Plan •approval has been filed. In July, 2006, the Development Services Director issued a deci sion that modrfied the setback requirements in the UC·N1 Zone. An appeal of this decision has also been filed. The hearing on February 13, 2007, is set to consider whether these appeals should be dis missed. NO TESTIMONY will be taken at this hearing. If the hearing on the pending action cannot be completed on the date set in the public notice, the meeting or hearing may be continued to a date certain and no further notice is required. All interested persons are invited to be present at the Public Hear Ing. The file may be reviewed In the office of the Hearing Examiner on the seventh floor of Renton City Hall. His number is: 425-430- 6515. Publication Date: February 3, 2007 ~I'll' PVJIINING Of.Vian' OF REl'll'ON Jill Ding MAR O 2 2007 RECEIVED Development Services Division -Development & Planning Renton City Hall -6'" Floor 1055 South Grady Way Renton, WA 98055 Re: The Landing 204300.03 July 21, 2006 Site Plan Review Application Dear Ms. Ding: In response to the City's questions regarding Site Plan Review Update 'A' for The Landing, originally submitted by Callison on December 29, 2006, we submit the following: • Minor Revision to an Approved Site Plan Update 'A' Submittal Package as outlined in the letter of transmittal. Furthermore, in conjunction with this submittal, we would also like lo once again request certain code modifications for The Landing. In addition to other authority, the Planning/Building/Public Works Administrator or his/her designee has the authority to grant modifications to development standards in the Urban Design Regulation Overlay District, as long as the following criteria are met pursuant to RMC 4-9-250: Decision Criteria: Whenever there are practical difficulties involved in carrying out the provisions of this Title, the Department Administrator may grant modifications for individual cases provided hehhe shall first find that a specific reason makes the strict letter of this Code impractical, that the intent and purpose of the governing land use designation of the Comprehensive Plan is met and that the modification is in conformity with the intent and purpose of this Code, and that such modification: a. Substantially implements the policy direction of the policies and objectives of the Comprehensive Plan Land Use Element and the Community Design Element and the proposed modification is the minimum adjustment necessary to implement these policies and objectives; b. Will meet the objectives and safety, function, appearance, environmental protection and maintainability intended by the Code requirements, based upon sound engineering judgment; c. Will not be injurious to other property( ies) in the vicinity; d. Conforms to the intent and purpose of the Code; e. Can he shown to he justified and required for the use and situation intended; and f Will not create adverse impacts to other property( ies) in the vicinity. In addition, pursuant to RMC 4-3-100.L, the Director of Development Services has the authority to modify minimum standards of the design regulations, subject to the criteria of RMC 4-9-250 listed above, and the following requirements: a. The project as a whole meets the intent of the minimum standards and guidelines in subsections E. F. G. H. I. J. and K of the design regulations; h. The requested modification meets the intent of the applicable design standard; c. The modification will not have a detrimental ejfect on nearby properties and the City as a whole; cl. The deviation manifests high quality design; and e. The modification will enhance the pedestrian environment on the abutting and/or adjacent streets and/or pathways. Therefore, in accordance with the City's authority to grant modifications, we would like to request the following code modifications for The Landing: I. RMC 4-2-120.E. Development Standards for UC-Nl: Maximum Setbacks Pursuant to RMC 4-2-120.E, a maximum 5-foot front and side yard along a street setback is required in the UC-NI zone. Certain buildings in The Landing site plan exceed the 5-foot setback requirement. However, as the Director previously determined in the Site Plan Approval, the purpose of the maximum setback requirement is to foster a pedestrian oriented development. The proposed development incorporates many pedestrian-oriented elements within and around the development. Furthermore, if, for example, the buildings along 8th Avenue North were required to abut the sidewalk along 8th A venue North, this would create a significant disruption to the smooth flow of pedestrian activity for the buildings at the south end of Quadrant B. For these reasons, and because the Site Plan meets the specific requirements for modifications of setbacks as set forth in RMC 4-9-250.D, we request approval of this modification request to permit the proposed setbacks along streets in The Landing. 2. RMC 4-3-100.F(l)(b)(i)(a). Urban Design Regulations: Parking and Vehicular Access on Designated Pedestrian-Oriented Streets. Under RMC 4-3-100.F(l)(b)(i)(a), "No more than sixty feet (60') of the [pedestrian-oriented] street frontage measured parallel to the curb shall be occupied by off-street parking and vehicular access." The Code does not, per se, designate pedestrian streets in this zone; however, we have treated portions of Park Avenue North and North 10th Street as pedestrian-oriented streets. Certain portions of The Landing exceed this sixty-foot requirement. For example, in the area directly north of Building 400 in Quadrant B of The Landing, more than sixty feet of street frontage along Park Avenue North is occupied by off-street parking. As the Director made clear in his Site Plan Approval, the consolidation of parking in the center of the two southern parcels of The Landing was necessary in order to allow for future redevelopment and future infill in these areas. This is consistent with the Renton Comprehensive Plan, which contemplates the placement of parking areas in initial redevelopment plans to facilitate future infill. See, e.g., Comp Plan Policy LU-285. Furthermore, as the Director determined in the Site Plan Approval, the separation of the northern and southern retail areas with parking also prevents the over-concentration of structures on one portion of the site, and results in the parking lots being conveniently located adjacent to retail uses on both the northern and southern ends. For these reasons, and because the Site Plan meets the specific requirements for modifications of design regulations as set forth in RMC 4-9-250.D and RMC 4-3-100.L, we request approval of this modification request to permit over sixty feet of street frontage along Park Avenue North and North 10th Street to be occupied by off-street parking and vehicular access in The Landing. 3. RMC 4-3-100.E(3)(b). Urban Design Regulations: Site Design and Building Location, Building Entries. Under RMC 4-3-100.E(3)(b), on pedestrian-oriented streets, "the primary entrance of each building shall be located on the facade facing the street." The primary entrance for proposed Building 400 does not face Park Avenue North. As the Director previously determined in the Site Plan Approval, the orientation of the buildings in The Landing has been designed to heighten the pedestrian-friendly environment. Building 400 is one of seven buildings located along the southern portion of Quadrant B. Were the primary entry of Building 400 to face Park Avenue North, rather than the parking area as currently designed, this would result in a signficant disruption to the pedestrian flow along the fronts of these buildings. Due to the pedestrian-oriented environment created by the current design of the Site Plan, and because the Site Plan meets the specific requirements for modifications of design regulations as set forth in RMC 4-9-250.D and RMC 4-3-100.L, we request approval of this modification request to permit the orientation of Building 400 to be toward the parking area. As noted above, in the Site Plan Approval for The Landing, the Director has touched upon each of the elements of the Site Plan mentioned above. The purpose of this modification request, therefore, is merely to clarify the initial Site Plan Approval as it relates to these modifications. Please also note that although each of the above code • modification requests is directly implicated in the Site Plan Review Update 'A', each may also have implications in other areas of the Site Plan. Si,cere~/f'~r;/;f,.;:-- William Barton Associate ,\'Y r_) (,~·~ .. ..;'., CITY ~ RENTON • • • Planning/Building/Public Works Department Gregg Zimmerman P.E., Administrator '? ..II .. ~ Kathy Keolker, Mayor l~'N'tO' ebruary 15, 2007 Mark Hower, Associate Callison Architecture, Inc. 1420 Fifth Avenue #2400 Seattle, WA 98101-2343 SUBJECT: THE LANDING LOT 4, REQUEST FOR MINOR MODIFICATION OF APPROVED SITE PLAN REVISED Dear Mr. Hower, I am in receipt of your letter and attachments dated February 5, 2007 wherein you request revisions to the approved Site Plan for Buildings 104, 105, and 108 of The Landing. These buildings are located south of N 10'h Street, east of Logal Avenue N and west of Park Avenue N. The building numbering has been revised as follows: Building 104 is now identified as Building 201, Building 105 is now identified as Building 202, and Building 108 is now identified as Building 203. As your letter discloses, two minor adjustments to the approved site plan are proposed. The requested revisions are summarized below: 1) Increase in the size of Building 201 from 12,000 square feet to 14,300 square feet and a decrease in the size of Building 203 from 13,300 square feet to 9,300 square feet; and 2) Changes to the surrounding parking and refuse and recyclable deposit area configurations around each of the buildings. Renton Municipal Code Section 4-9-2001, allows minor adjustments to an approved site plan, provided: 1. The adjustment does not involve more than a ten percent (10%) increase in area or scale of the development in the approved site plan; or 2. The adjustment does not have a significantly greater impact on the environment and facilities than the approved plan; or 3. The adjustment does not change the boundaries of the originally approved plan. Analysis of Request The site plan modifications requested and as shown in your February 5, 2007 submittals have been compared to the Site Plan as approved by the Development Services Division Director on August 17, 2006. The proposed changes in square footage Buildings 201 and 203 would result in a gross floor area of 526,000 square feet for The Landing, which is a 1,700 square foot reduction. The proposed changes would not result in more than a 10 perc~ in area or scale of the development as the proposal would result in a reduc~n ~ t~e _ _ _ ~ . RENTON 1055 South Grady Way-Renton, Washmgton 98057 m This oaoer contains 50% reeve led material 30% oost consumer AHEAD OF TllE Cl.'RVI·. February 15, 2007 Page 2 gross floor area of the entire development. The proposal would not have a greater impact on the environment and facilities, nor would it change the boundaries of the originally approved site plan. The proposed changes to the parking and refuse and recyclable deposit area layouts would result in the creation of 40 additional parking stalls and would not result in a 1 O percent increase in the area or scale of the development, would no result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The project site is zoned Urban Center -North 1 (UC-N 1 ), and is also subject to District C of the Urban Center Design Regulations. All applicable setback, lot coverage, and landscaping standards would be achieved. Decision Based on staff's analysis, I have determined the proposed revisions are within the parameters defined by the Renton Municipal Code. Therefore, the proposed modifications to the site plan are approved subject to the following conditions: 1. Prior to the issuance of the final building permit for The Landing, 3 full size copies and 1 8 Y, x 11 inch PMT of a final site plan, building elevations, and landscape plan for the Landing shall be submitted to the Development Services Division project manager. 2. The applicant is advised that all code requirements and conditions of the site plan approval are still applicable to the development of the site. The applicant should also understand that Environmental SEPA Review and Site Plan Review may be required for future modifications to the site plan. This determination will be final unless a written appeal of this administrative determination -accompanied by the required $75.00 filing fee -is filed with the City's Hearing Examiner within 14 days of the date of this decision. Should you have any questions regarding this determination or the requirements discussed in this letter, please contact Jill Ding, Senior Planner, at (425) 430-7219. Sincerely, , r ., ,/J _ : ___ / ( II . I( . fl) ! i./ ·' ·'.· ' ,:,,._~ ,: / ~ vv( l V (0 (; v I Neil Watts, Director Development Services Division cc: LUA-06-071, SA-A Jennifer Henning Jill Ding Parties of Record landing lot 4 site plan modrevised.doc AFFIDAVIT OF SERVICE BY MAILING STATE OF WASHINGTON) ) ss. County of King ) Nancy Thompson being first duly sworn, upon oath, deposes and states: That on the 22nd day of February 2007, affiant deposited via the United States Mail a sealed envelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. Signature: SUBSCRIBED AND SWORN to before me this~ day of febWcf , 2007. ·-I• Not ry Public in d the State of Washington Re iding at &,,.v1ti,-4 , therein. Application, Petition or Case No.: The Landing, Matters of Standing and Jurisdiction LUA 06-071, SA-A The Decision or Recommendation contains a complete list of the Parties of Record. February 22, 2007 DECISION OF THE HEARING EXAMINER ON MATTERS OF STANDING AND JURISDICTION BROUGHT BY ATTORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND BRAD NICHOLSON, AN INDIVIDUAL This decision will be the second time this office has addressed the issue of standing involving property commonly called the Landing. Both matters involve appeals of various aspects of administrative decision-making. In brief summary, The Landing is a proposed mixed use 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 potential land use changes for the property. The City issued an Environmental Impact Statement (EIS). 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 a group challenging current decisions regarding the current proposal and also appealed the current proposal in his own name. 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 ordinance designated as Planned Action uses and activities described in the EIS 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 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 of the new proposal. Those decisions were appealed by two separate associations. It was found that one association, the one that has filed this new appeal, did not have standing while the second association was found to have standing. That second association withdrew their appeal. The association found to not have standing appealed that decision to the City Council. The City Council has not resolved the appeal on standing at this time. One of the identified appellants in this matter, ASE, was also an appellant in the earlier proceeding, hereinafter Landing I. In Landing I, this office found that ASE did not have standing (sec, Examiner's Decision dated September 5, 2006) It found ASE had no real control of the litigation and was a sham organization fronting for a competitor which itself could have no standing to challenge City actions. In this proceeding, hereinafter Landing II, ASE again filed an appeal but was joined by Brad Nicholson, an individual who is also the only identified member of ASE. Some of the background has been provided above but the detailed facts of the land use issues or permits arc not necessary to determine the standing of the parties. (A third appeal, not yet scheduled at this time, has been filed on the issuance of a building permit (Building permit #B060540) for the project and that matter could be referred as Landing III.) Hearing Examiner s Dec1s10n February 22, 2007 Page 2 of7 The parties filed two appeal letters asking that this office review and reverse decisions of the Director. Those appeals were filed on August 31, 2006. In one decision, the Director approved a Site Plan for portions of the Landing project. The facts of that project are unnecessary to detail at this stage of the proceedings. In the second challenged decision, the Director apparently issued an interpretation of a code provision dealing with setbacks from public streets. In that second decision, the Director found that a provision of code omitted a procedure that would allow a modification to the setback requirements. The Director issued his interpretation on July 17, 2006. The two decisions of the Director were unrelated other than the fact that the Site Plan approved by the Director granted a modification, a modification that would not have been permitted absent the prior interpretation, that provided a procedure for a modification where code had not specifically allowed it. Timeliness of Appeal of Administrator's Interpretation Before even tackling the issue of the standing of the parties, this office will deal with the second issue first, the Director's interpretation. This office finds it does not have jurisdiction. The attempted appeal is untimely. This office does not believe it has jurisdiction over the original decision by the Director to graft modification criteria onto the UN-CI provisions of the Code. The decision was made on July 17, 2006 and no direct challenge of that decision was made until the parties filed their letter on August 31, 2006. This office does have some qualms about such "rule-making." This does not mean that this office can confer on itself jurisdiction over the matter. Clearly, a decision without any anchor grounding it to a specific matter means few if any players know it was made. As a matter of fact, depending on who requested such a decision, only parties seeking such a positive interpretation might be aware it was made and would have little incentive to appeal or inform others about such an interpretation. Obviously, if a particular interpretation is sought and denied by the Director, at least, there would be a party that would know about the decision and have incentive to lodge an appeal. But the general public, a public that might be affected by such interpretations would be cut out of the process, not be generally informed, and be clueless that an interpretation was issued that could be appealed. In this case. that leaves no one or almost no one with the ability to challenge it. As mentioned at the hearing, this also means that innocent parties reading the existing code have no indication that such an interpretation now is automatically read into the existing provisions. But while such scenarios might be problematic, this office does not grant equitable relief. The decision was made on July 17, 2006 and the appeal was filed on August 31, 2006, which is more than 14 days after the decision and substantially beyond the appeal period. If the parties want relief it would appear that they would need to petition a court and not this office. Applicable Hearing Examiner Code provisions: RMC 4-8-110(E)(3) E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1- 24-2000) I. 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) 3. Standing: Hearing Examine, s Dec,s1on February 22, 2007 Page 3 of7 b. Standing for Appeals of Administrative Determinations 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 determination. (Ord. 3454, 7-28-1980) The Parties and Filings So we come to the issue of the standing of the parties. There is the association, ASE, a party that in Landing I was found to be without standing. They are back again. They have indicated that things have changed since the last ruling and that ASE should be granted standing. Separately, there is Brad Nicholson who appears as an individual claiming he is injured or will be injured and should be granted standing. There were two appeals filed. One of the appeals challenged the Site Plan approval noting a number of reasons why it failed to meet the City's criteria for review. This first appeal was filed in the name of both ASE and Brad Nicholson. It was signed by an attorney, signing for ASE. It was not signed by Brad Nicholson. It was accompanied by one filing fee. The second appeal challenged the Director's Interpretation of a provision or possibly lack of a provision allowing modifications of required setback limits. It followed the form and substance of the first appeal mentioned above. It was filed for both ASE and Nicholson, it was signed by the ASE attorney but not Nicholson and it was accompanied by only one filing fee. The City and underlying applicant, Harvest Partners (hereinafter Harvest), claim that neither party should have standing. They claim ASE has not changed its basic foundation or governing structure. They also claim that even if ASE's structure did change, neither the association nor any of its individual members ( only Brad Nicholson has been identified although ASE claims it has up to about ten (10) members) suffers the necessary injuries to have associational standing. In regard to Brad Nicholson, the City and Harvest advance the argument that Nicholson did not sign either of the appeals, did not provide an appeal fee for either appeal and was not mentioned in the "prayers" for relief, which only mentions ASE. Perfection of Appeal by Brad Nicholson in the absence of signature and separate filing fee. Again, this office will dispense with the second of these subsidiary issues first. The rules require appeals to be filed in writing (references omitted), contain sufficient information to inform the City about the reasons for the appeal and be accompanied by the appropriate filing fee. There are no other rules about signatures, how many people can join in "one" appeal, how many fees are required if multiple parties join in an appeal or require formal "prayers" for relief. Nicholson, at this point, has sufficient standing to actually allege he has standing to bring an appeal. Nicholson should not be thwarted by the failure of a signature or the payment of a second fee. Neither is required by Code if multiple parties join in an appeal. If there is any problem with a person being improperly added to an appeal and/or not intending to be a party to an appeal, there arc plenty of opportunities to rectify such a mistake. On the other hand barring a person due to criteria not included in the requirements for an appeal would be inappropriate. This office will consider the challenges appropriately filed on Nicholson's behalf. Nicholson's actual standing to bring and argue an appeal will be discussed below. Hearing Examine, s Dec,s1on February 22, 2007 Page 4 of7 ASE's Standing ASE claims that it anticipated the Landing I decision of this office based on the questions raised at the original Landing I hearing on standing. ASE recognized that this office had concerns about who directed the organization and who directed the litigation for Landing I. Since ASE apparently expected to appeal additional aspects of the Landing proposal or proposals they recognized a need to address the issues that were raised hy those associational standing questions. ASE called a special meeting and adopted a new policy. They also modified bylaws although the date of bylaw changes reflecting the policy change is unclear from the record. The policy was adopted at a special meeting of the Board of Directors held on August 31, 2006, the date that the appeal was filed. The policy, in full, states: "The members shall be consulted by the Board of Directors 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." Unfortunately, ASE appears not to have let their tea leaves fully settle. Accepting that this new policy was adopted by ASE, the new policy does little to warm this office to their arguments in this second proceeding. The new policy is not a bylaw but merely a policy and has no legal weight. The Directors consult and seek input but there is nothing that requires them to follow the feedback. The policy is quoted above. The amended bylaws state a more succinct version: "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." The bylaws contain no line repeating the policy statement that "The Corporation shall carry out the directions of the members." The Directors, well, sole Director, can actually "fire" members if they do not further the causes of ASE. ASE is still not governed by its members. The number of members is still a closely held secret but for purposes of ruminating about how ASE works, say there are nine (9) members. For purposes of argument, say, five members decide that the litigation is too costly or that some compromise offered made the Harvest's project and Site Plan acceptable but ASE (whatever or whomever it or they are) decides that settlement is not in the interests of ASE, those five members could be removed from membership. The bylaws allow removal of members if membership is detrimental to the corporation. "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 ... u This office urges both ASE and others to fully read the bylaws and the policy. They are carefully crafted to make sure that ASE gives very little, read no, powers over litigation to its members. The members have very little, actually, no opportunity to derail this litigation or to firmly direct this litigation. The association remains the shell corporation it was in Landing I. Hearing Examine, s Dec1s10n February 22, 2007 Page 5 of7 This office will rely on its decision in Landing I and not repeat its examination of associational standing or why ASE is a sham standing in for a competitor that does not have standing. This office finds ASE does not have standing to appeal either of the Director's decisions. Brad Nicholson's Standing ASE and its attorney or Brad Nicholson, himself, did make one appropriate move. Nicholson joined the appeal as an individual appellant. Brad Nicholson was included on the initial filing papers as an appellant. This office has already dealt with the arguments that Mr. Nicholson was not appropriately made an appellant since he neither signed the appeal letter nor paid a separate appeal fee. As noted above, the absence of a signature and a separate filing fee docs not appear to be a bar to his challenge under this office's reading of Code. The City and Harvest next argue even if his signature and fee were not necessary, he has no discernible, individualized interest or injury in a project in north Renton located about two miles from his home. This office, possibly inappropriately, has consistently held that individuals have standing to challenge certain City decisions in administrative and environmental appeals. This office actually found in Landing I, that PASS, the separate citizens' association, had standing to bring that action. This office also previously found that this very individual, Mr. Nicholson, had standing to challenge the adequacy of the Environmental Impact Statement for the Boeing Comprehensive Plan Amendment and Rezone actions. It would be inconsistent to now find he did not have standing when the actual development, the Site Plan in contention, was being reviewed. Given the positions taken by the City and Harvest this office admits that it has trouble figuring out how one challenges potentially improper decisions. While far from suggesting any improper motives, if there were collusion between an applicant and the City, no person or group could possibly cha11enge a decision. If for instance under Site Plan review, the City approved a 40- story complex (and it has done no such thing) and found justification in its policies but a modification were required, and the applicant was satisfied, no one could challenge that and that, this office believes would be untenable. Such a glaring example might be unfair but it provides a frame ofreference. How glaring would the mistake have to be to provide a basis for standing or taken the other way, how sma11 a mistake deprives one of standing because the harm is small. It seems clear that Nicholson has a strong belief that the approved Site Plan violates City policies and/or Code provisions. He argues that allowing it to go forward will harm him either due to being a badly designed project that does not meet code or one that may create severe traffic problems adversely affecting him or cause stormwater problems with water bodies he a11egcs he uses. The strong belief that there is an error does not demonstrate error. Facts will be required of the appellant to show error. Nicholson should be permitted the opportunity to show those factual harms subject to the normal burdens of proof attached to an administrative appeal and the requirements that the decision below is entitled to substantial weight. Brad Nicholson has standing to file the appeal. Hearing Examiner s Dec1s1on February 22, 2007 Page 6 of7 Decision: The appeal of ASE is dismissed, as they have no standing. The appeal of Brad Nicholson may proceed to arguments on the merits regarding the Site Plan rcv1e\v. This office does not have jurisdiction to review the Director's Interpretation. ORDERED THIS 22nd day of February 2007. FRED J. UFMAN: HEARIN XAMINER TRANSMITTED THIS 22"' day of February 2007 to the parties of record: Zanella 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 Renton Reporter Attn: Oscar Halpert PO Box 130 Kent, WA 98032 Brad Nicholson 2811 Dayton Avenue Renton, WA 98056 Seattle, WA 98101 Ross Radley Attorney at Law 3316 Fuhrman Ave E., Ste. 250 Seattle, WA 98102 TRANSMITTED THIS 22"d day of February 2007 to the following: Mayor Kathy Keolker Larry Warren, City Attorney Jay Covington, CAO Julia Medzcgian, Council Liaison Gregg Zimmerman, l'BPW Director Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Larry Rude, Fire Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Dev Services King County Journal Hearing Examiner s Decision February 22, 2007 Page 7 of7 Pursuant to Title IV, Chapter 8, Section IOOGofthc City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m., March 8, 2007. 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 governed by Title IV, Chapter 8, Section I IO, 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.m., March 8, 2007. 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 of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness 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 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. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. 2 3 4 5 6 7 8 9 IO I I 12 13 14 15 16 17 I 8 19 20 21 22 23 .. CITY OF RENTON FEB 2 2 2007 RECEIVED CITY-CLERKp OFFICE ~11:11.,,1,1 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 LUA-06-071, SA-A APPLICANT'S RESPONSE TO FOURTH DECLARATION OF PETER BUCK AND FIFTH DECLARATION OF PETER BUCK I. INTRODUCTION Following the hearing on the motions on February 13, 2007, Appellants have now presented Applicant with two new declarations, each of which only serves to increase the strange facts surrounding this association. Applicant Harvest Partners brings this Response to Appellants' Fourth Declaration of Peter Buck and Appellants' Fifth Declaration of Peter Buck, filed February 13, 2007 and February 14, 2007, respectively. For the reasons set forth below, Appellants' supplemental evidence backfires on them in that it shows why ASE had no associational standing at the time the appeals were filed. A. II. ARGUMENT ASE Has Not Demonstrated Associational Standing at the Commencement of the Appeals. 24 ASE, as the appellant, has the burden of establishing that it has associational 25 standing. 1 Furthermore, standing must exist as of the time the appeals are filed. As the 26 27 1 See Concerned 0/ymp,a Residents for the Environment v. City of Olympia, 33 Wn. App. 677, 683, 657 28 P.2d 790 (1983). Applicant's Re.1ponse to Fourth and Fijih Declarations of Peter Buck -Page 1 oORfGfNAi HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 U.S. Supreme Court has stated, "standing is to be determined as of the commencement of the 2 suit. "2 Developments that occur following commencement of an action cannot be the basis 3 for standing. A party cannot try to establish standing as the case progresses.3 4 Although the Fifth Declaration of Peter Buck states that the supplemental evidence is 5 being provided "[t]o address the question raised by the Examiner as to what has changed,"4 6 ASE appears to have misunderstood the question. As it relates to the test for standing, the key 7 inquiry is not the current situation with ASE. The key inquiry is what the situation was at the s time of the appeals. 9 The ASE appeals were filed on August 31, 2006. Despite the numerous versions of 10 the Bylaws provided by ASE, neither of Mr. Buck's Declarations, nor any of the other 11 evidence provided, demonstrates that ASE had amended its Bylaws as of August 31, 2006. 12 Even with two additional declarations, ASE has still failed to provide the complete, dated 13 Bylaws that were in effect on August 31, 2006. The latter versions of the Bylaws, dated 14 December 10, 2006, and February 7, 2007, are wholly irrelevant to whether or not ASE had 15 standing to bring these appeals, and should be disregarded. 16 B. Minutes of Director's Meeting Confirm the Lack of Control by Members. 17 The Fourth Declaration of Peter Buck attaches a copy of Minutes from a purported 18 August 31, 2006 meeting of the ASE director (the "Minutes"). However, the Minutes lend no 19 additional support to ASE's arguments, as they merely reflect the adoption of the "policy" 20 statement for ASE. As previously briefed by Applicant, ASE's supposed "policy" has no 21 bearing on the control and governance of ASE.5 It is the ASE Bylaws, not the "policy," that 22 form the basis for ASE's corporate governance. 23 24 25 26 27 28 2 Lujan v. Defenders of Wildlife, 504 U.S. 555,570 n. 5 (1992). 3 See, e.g, Perry v. Village of Arlington Heights, 186 F.3d 826, 830 ( 1999) ("It is not enough for [a party] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be satisfied from the outset. .. "). 4 Fifth Declaration of Peter Buck, February 14, 2007, at 14. 5 See Applicant's Response To Appellants' Motion For Declaratory Ruling Regarding Standing, at 5. Applicant's Response lo Fourth and Fifth Declarations of Peter Buck -Page 2 of 4 I-Iii.I.IS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 Furthermore, upon close examination, the Minutes only serve to support the argument 2 that, at the time the appeals were filed, ASE' s members had no control over the actions of the 3 association. Margaret Potter, a former employee of Buck & Gordon, appears to have been the 4 only person present at the meeting held at her house in Mt. Vernon. As the sole director of 5 ASE present at the meeting, Ms. Potter called the meeting to order, and proceeded to accept 6 resignations, appoint officers, elect members, make determinations regarding the course of 7 ASE's litigation, and adopt policies all by herself. She has the sole authority to have a g meeting with herself, make resolutions, second the resolutions, and unanimously adopt the 9 resolutions. This is critical on the issue of associational standing, because it goes to the 10 question of whether there are any real members, and whether the association is acting on 11 behalf of those members. Ms. Potter had the sole ability to elect the members. Even more 12 revealing, she had the sole ability at this meeting to terminate the memberships of all of the 13 members, pursuant to Section 1.5 of the ASE Bylaws.6 14 Ms. Potter is not a citizen of Renton, and ASE has never asserted that Ms. Potter 15 would have standing in her own right to bring these appeals. However, as made clear by the J 6 Minutes, dated the same day that the appeals were filed, it is former Buck & Gordon 17 employee Ms. Potter, and not the members, guiding and controlling all of the actions of ASE. 18 // 19 // 20 // 21 II 22 23 24 25 26 27 28 6 This ability for the board of directors to terminate memberships was modified in the February 7, 2007 version of the ASE Bylaws. See Fifth Declaration ofreter Buck, at Exhibit B. Although termination typically requires prior notice to members, the original ASE Bylaws provided for immediate termination at the option of the Board, without prior notice and only the option to appeal. Curiously, while this issue of the ability of ASE directors to terminate members was an important argument raised by Applicant in pre-hearing briefsi and at the hearing on February 13, 2007, Mr. Buck never even mentioned that this change had been made to the ASE Bylaws just a week prior. Appellants do not explain why they did not come forth with this information at the hearing, let alone provide a copy of these amended Bylaws to the Examiner. In any event, the supposed amendments should be disregarded, since even if they occurred, they would have occurred several months after the commencement of the appeals. Applicant's Response to Fourth and Fijih Declarations of Peter Buck -Page 3 o/4 HILLIS CLARK MART[N & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.6231745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION ASE is trying to backfill a record, which would not be necessary if ASE had standing on the critical date. A party cannot attempt to establish standing as the case progresses. For the reasons set forth herein, Applicant respectfully requests that Appellants' appeals be DISMISSED for lack of standing. DATED this ,;J J day of February, 2007. #347667 18449-004 7g91\ll'doc Applicant's Re,ponse to Fourth and Fifth Declarations of Peter Buck -Page 4 of 4 HILLIS CLARK MARTIN & PETERSON, P.S. By ~ Jerome L. Hilli , WSBA #1704 T. Ryan Durkan, WSBA #I I 805 Karen D. Breckemidge, 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; fax 206.623. 7789 .. 2 3 4 5 6 7 8 9 10 I 1 • BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 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, WA 98101. I hereby certify that 14 on the 21" day of February 2007, I caused to be delivered via legal messenger on February 15 22, 2007, a true and correct copy of(]) Applicant's Response to Fourth Declaration of Peter 16 Buck and Fifth Declaration of Peter Buck; and (2) this Certificate of Service to the 17 following: 18 19 20 21 22 23 24 25 26 27 28 Mr. Fred Kaufman, Hearing Examiner City of Renton 1055 South Grady Way Renton, WA 98055 LaVvTence J. Warren, City Attorney Warren Barber & Fontes, P.S. l 00 South Second Street Renton, WA 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, WA 98055 Peter L. Buck Buck & Gordon, LLP 2025 First A venue, Suite 500 Seattle, WA 98121-3140 Ross Radley Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East, Suite 250 Seattle, WA 98102 HILLJS CLARK MARTJN & PETERSON, P.S. Certificate of Service -Page I of2 ORIGINAL 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 'l-r DATED this _'2_1 __ day of February, 2007. #34540 I 18449-004 7#$1101 r doc 2121107 Certificate of Service -Page 2 o/2 HILLIS CLARK MARTIN & PETERSON, P.S. Gina C. 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 • CITY OF RENTON FEB 2 2 2007 RECEIVED err!' CLERK'S OFFICE y \i ii AP\ 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 I. LUA-06-071, SA-A APPLICANT'S RESPONSE TO FOURTH DECLARATION OF PETER BUCK AND FIFTH DECLARATION OF PETER BUCK INTRODUCTION Following the hearing on the motions on February 13, 2007, Appellants have now presented Applicant with two new declarations, each of which only serves to increase the strange facts surrounding this association. Applicant Harvest Partners brings this Response to Appellants' Fourth Declaration of Peter Buck and Appellants' Fifth Declaration of Peter Buck, filed February 13, 2007 and February 14, 2007, respectively. For the reasons set forth below, Appellants' supplemental evidence backfires on them in that it shows why ASE had no associational standing at the time the appeals were filed. A. 11. ARGUMENT ASE Has Not Demonstrated Associational Standing at the Commencement of the Appeals. 24 ASE, as the appellant, has the burden of establishing that it has associational 25 standing. 1 Furthermore, standing must exist as of the time the appeals are filed. As the 26 27 1 See Concerned Olympia Residents for the Environment v. City of Olympia, 33 Wn. App. 677,683,657 28 P.2d 790 (1983). Applicant's Response to Fourth and Fifth Declarations of Peter Buck -Page 1 of 4 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623. 1745; fax 206.623.7789 U.S. Supreme Court has stated, "standing is to be determined as of the commencement of the 2 suit."2 Developments that occur following commencement of an action cannot be the basis 3 for standing. A party cannot try to establish standing as the case progresses.3 4 Although the Fifth Declaration of Peter Buck states that the supplemental evidence is 5 being provided "[t]o address the question raised by the Examiner as to what has changed,"4 6 ASE appears to have misunderstood the question. As it relates to the test for standing, the key 7 inquiry is not the current situation with ASE. The key inquiry is what the situation was at the 8 time of the appeals. 9 The ASE appeals were filed on August 31, 2006. Despite the numerous versions of 10 the Bylaws provided by ASE, neither of Mr. Buck's Declarations, nor any of the other 11 evidence provided, demonstrates that ASE had amended its Bylaws as of August 31, 2006. 12 Even with two additional declarations, ASE has still failed to provide the complete, dated 13 Bylaws that were in effect on August 31, 2006. The latter versions of the Bylaws, dated 14 December I 0, 2006, and February 7, 2007, are wholly irrelevant to whether or not ASE had 15 standing to bring these appeals, and should be disregarded. 16 B. Minutes of Director's Meeting Confirm the Lack of Control by Members. 17 The Fourth Declaration of Peter Buck attaches a copy of Minutes from a purported 18 August 31, 2006 meeting of the ASE director (the "Minutes"). However, the Minutes lend no 19 additional support to ASE's arguments, as they merely reflect the adoption of the "policy" 20 statement for ASE. As previously briefed by Applicant, ASE's supposed "policy" has no 21 bearing on the control and governance of ASE.5 It is the ASE Bylaws, not the "policy," that 22 form the basis for ASE's corporate governance. 23 24 25 26 27 28 2 Lujan v. Defenders of Wildlife, 504 U.S. 555,570 n. 5 (1992). 3 See, e.g., Perry v. Village of Arlington Heights, 186 F.3d 826, 830 (1999) ("It is not enough for [a party] to attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be satisfied from the outset ... "). 4 Fifth Declaration of Peter Buck, February 14, 2007, at 1 4. 5 See Applicant's Response To Appellants' Motion For Declaratory Ruling Regarding Standing, at 5. Applicant's Response to Fourth and Fifth Declarations of Peter Buck -Page 2 of 4 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7789 I Furthermore, upon close examination, the Minutes only serve to support the argument 2 that, at the time the appeals were filed, ASE's members had no control over the actions of the 3 association. Margaret Potter, a former employee of Buck & Gordon, appears to have been the 4 only person present at the meeting held at her house in Mt. Vernon. As the sole director of s ASE present at the meeting, Ms. Potter called the meeting to order, and proceeded to accept 6 resignations, appoint officers, elect members, make determinations regarding the course of 7 ASE's litigation, and adopt policies all by herself. She has the sole authority to have a 8 meeting with herself, make resolutions, second the resolutions, and unanimously adopt the 9 resolutions. This is critical on the issue of associational standing, because it goes to the 1 o question of whether there are any real members, and whether the association is acting on 11 behalf of those members. Ms. Potter had the sole ability to elect the members. Even more 12 revealing, she had the sole ability at this meeting to terminate the memberships of all of the 13 members, pursuant to Section 1.5 of the ASE Bylaws.6 14 Ms. Potter is not a citizen of Renton, and ASE has never asserted that Ms. Potter 15 would have standing in her own right to bring these appeals. However, as made clear by the 16 Minutes, dated the same day that the appeals were filed, it is former Buck & Gordon 17 employee Ms. Potter, and not the members, guiding and controlling all of the actions of ASE. 18 // 19 // 20 // 21 // 22 23 24 25 26 27 28 6 This ability for the board of directors to terminate memberships was modified in the February 7, 2007 version of the ASE Bylaws. See Fifth Declaration of Peter Buck, at Exhibit B. Although termination typically requires prior notice to members, the original ASE Bylaws provided for immediate termination at the option of the Board, without prior notice and only the option to appeal. Curiously, while this issue of the ability of ASE directors to terminate members was an important argument raised by Applicant in pre-hearing briefs, and at the hearing on February 13, 2007, Mr. Buck never even mentioned that this change had been made to the ASE Bylaws just a week prior. Appellants do not explain why they did not come forth with this information at the hearing, let alone provide a copy of these amended Bylaws to the Examiner. In any event, the supposed amendments should be disregarded, since even if they occurred, they would have occurred several months after the commencement of the appeals. Applicant's Response to Fourth and Fifth Declarations of Peter Buck -Page 3 of 4 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623.7769 I 2 3 4 5 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION ASE is trying to backfill a record, which would not be necessary if ASE had standing on the critical date. A party cannot attempt to establish standing as the case progresses. For the reasons set forth herein, Applicant respectfully requests that Appellants' appeals be DISMISSED for lack of standing. DATEDthis y/ dayofFebruary,2007. #347667 18449-004 7g9f0 I I.doc Applicant's Reoponse to Fourth and Fifth Declarations of Peter Buck -Page 4 of 4 HILLIS CLARK MARTIN & PETERSON, P.S. By ~ Jerome L. Hilli , WSBA #1704 T. Ryan Durkan, WSBA # 11805 Karen D. Breckemidge, 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; fax 206.623.7789 • 2 3 4 5 6 7 8 9 10 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 11 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, WA 98101. I hereby certify that 14 on the 21" day of February 2007, I caused to be delivered via legal messenger on February 15 22, 2007, a true and correct copy of (1) Applicant's Response to Fourth Declaration of Peter 16 Buck and Fifth Declaration of Peter Buck; and (2) this Certificate of Service to the 17 following: 18 19 20 21 22 23 24 25 26 27 28 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, WA 98057 Brad Nicholson c/o 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 Ross Radley Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East, Suite 250 Seattle, WA 98102 HILLIS CLARK MARTIN & PETERSON, P.S. 500 Galland Building, 1221 Second Ave Seattle WA 98101-2925 206.623.1745; fax 206.623. 7789 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,., . '>+ DATED this-~"-\~_ day of February, 2007. #345401 18449-004 7#$h0 I' .doc 2/21/07 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 Seattle WA 98101-2925 206.623. 1745; fax 206.623.7789 ' > • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CITY OF RENTON FEB 16 2007 RECEIVED CITY CLERK'S OFFICE I/. 5,_; tlm Mf/ BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON In the Matter of Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Plan and the Director's Administrative Interpretation/Policy Decision ) ) ) ) ) ) ) ) ________________ ) TO: Hearing Examiner of the City of Renton AND TO: City of Renton, Appellee NO. LUA-06-071-SA-A AMENEDED NOTICE OF ASSOCIATION AND TO: Warren Barber & Fontes, P.S., attorney for City of Renton AND TO: Harvest Partners, Applicant AND TO: Hillis Clark Martin & Peterson, P.S., attorney for Applicant YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that ROSS RADLEY hereby appears in the above-entitled cause in association with Buck and Gordon and Brad Nicholson and requests that all further pleadings be served upon him at the address below: Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East Suite 250 Seattle, WA 98102 NOTICE OF APPEARENCE-1 Law Offices of Ross Radley 3316 Fuhrman Avenue East, Suite 250 Seattle, Washington 98102 206-323-3800 Fax: 206-323-4044 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this 14th day of February, 2007 NOTICE OF APPEARENCE-2 ROSS RADLEY, WSBA #4972 Associated Attorney for Appellants ASE and Nicholson Law Offices of Ross Radley 3316 Fuhrman Avenue East, Suite 250 Seattle, Washington 98102 206-323-3800 Fax: 206-323-4044 02113/07 13:19 FAX 206 626 0675 BUCK & GORDON LLP --------- Buck0 Gordon LLP To: Ms. Bonnie Walton Mr. Fred Kaufman Mr. Jerome Hillis Ms. T. Ryan Durkan Mr. Lawrence J. Warren Ms. Zan etta Fontes Mr. Ross Radley ·-·-·---·------·- CITY OF Rl::NTON FEB 1 3 2007 RECEIVED GITY CLERK'S OFFICE FACSIMILE TRANSMITIAL February 13, 2007 Company: Telephone: City of Renton (425) 430-6510 City of Renton (425) 430-6515 Hillis Clark Martin & (206) 623-17 45 Peterson Hillis Clark Martin & (206) 623-17 45 Peterson Warren, Barber, & Fontes (425) 255-8678 Warren, Barber, & Fontes (425) 255-8678 Attorney at Law (206) 323-3800 ~ 001/008 ,--------, I 2025 First Avenue, Suite SOCJ Seanla. WA 98121-31AO I 206-382-9540 206-626-0675 Fax L www.buckgordon.com Fax: (425) 430-6516 (425) 430-6523 (206) 623-7789 (206) 623-7789 (425) 255-5474 (425) 255-5474 (206) 323-4044 From: Peter L. Buck Number of Pages: 8 Regarding: LUA-06-071, SA-A We are transmitting the following: Buck, and Certificate of Service Comments: See attached. If you did not receive all copies, or If any are not legible. please call Jessica at (206) 382-9540 Cover Letter, Fourth Deel a ration of Peter THIS FACSIMILE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN CONFIDENTIAL, PRIVILEGED INFORMATION. IF THE READER OF THIS COVER PAGE IS NOT THE ADDRESSEE, PLEASE BE ADVISED THAT ANY DISSEMINATION. DISTRIBUTION OR COPYING OF THIS FACSIMILE IS STRICTLY PROHIBITED. If YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE CALL IMMEDIATELY AT (206) 382-9540 AND RETURN THIS FACSIMILE TO BUCK & GORDON AT THE ABOVE ADDRESS BY MAIL. THANK YOU. 02113107 13:20 FAX 206 626 0675 Buck0 Gordon LLP VIA FACSIMILE Ms. Bonnie Walton City Clerk City of Renton 1055 South Grady Way Renton, WA 98055 BUCK & GORDON LLP February 13, 2007 Re: Fourth Ded,ration of Peter Buck Dear Ms. Walton: • 1i1J 0021008 202$ First AYenue, Su11e 500 Sealtle, WA 96121-3140 206-382-9540 206-626-0675 Fax v-.ww.buc:kgor"C!on.r:om CITY OF RENTON FEB 1 3 2007 RECEIVED CITY CLERK'S OFFICE Pursuant to RMC 4-8-11 O,C(5), we submit the following on behalf of appellants Brad Nicholson and Alliance for South End (ASE) via facsimile transmittal: • Fourth Declaration of Peter Buck, with exhibit These documents 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. Copies of this letter and the above reference o uments will also be faxed to the Hearing Examiner and all counsel of record, Cc: Fred Kauffman, Hearing Examiner Counsel of Record Y:\WP\ASE\S1te Plan Appeal\1021307.doc 02/lJ/07 lJ: 20 FAX 206 626 0675 Bl'CK & GORDON LLP ----------------------------------- 1 2 3 4 5 6 7 8 BEFORE THE HEAR1NG EXAMINER OF THE CITY Of RENTON In ili.e Matter of the Appeals of Alliance for the South End (ASE) and Brad 9 Nicholson re: ) ) ) ) ) ) ) ) ) ) ) No. LUA-06-071, SA-A FOURTH DECLARATION OF PETER BUCK 10 The Director's Administrative Plan Approval 11 And 12 The Director's Administrative Interpretation/ Policy Decision 13 14 15 16 17 18 19 20 21 22 23 24 25 I, PETER BUCK, do hereby declare: 1. Buck & Gordon LLP represents lhe Alliance for the South End and Brad Nicholson in this matter. The following is based on rny personal knowledge. 2. Pursuant to the Examiner's invitation, attached hereto as Exhibit A is a true and accurate copy of Minutes of the August 31, 2006 Director's Meeting of Alliance for South End, with member names redacted. For the avoidance of doubt, this document has been in the corporate minute book long before an issue was raised and it is an accurate reflection of a meeting held on August 31, 2006. I declare under penalty of perjury under the laws of the State of Washington thal the foregoing is true and correct. Ill Ill FOURTH DECLARATION OF PETE BUCK -I Y IWl'\.lo.SE\S'JTI;. PLA."l .'.Pl"fA.1,\SWCl( DGCI..MATI0>,1 D.:!lltn.DOC Bucke> Gordon LLP 20.25 ~rst Av~r,i,.1~. Suite 500 Sj}attlc, WA '96121.314C (206) 3S2·95LQ '---·· ·- i4J 0031008 02113/07 13:20 FAX 206 626 0675 BUCK & GORDON LLP ----------·---------- t"' \ ~ day of February, 2007. Executed at Seattle, Washington t · 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Peter Bue FOURTH DECLARATION OF PETE BUCK -2 y_\WP1ASf!ISITI: l"l..AN APPf..i,,L\BUCK DECl.A"-A"rlON lil 1 ~O"I DOC Buckei Gordon tLP 2025 ."ir.:;t Averiue, Suite SOO Sc.-:,ttle. WA 98i 21-31i.o (206) 382-9S40 Ii!] 004/008 02113/07 13:20 FAX 206 626 0675 BUCK & GORDON L.,,L~P __ _ Alliance fur South End Minutes of Di=.tcr 's Meeting August 31, 2006 A speo!al meeting of the board of directors of the corporation WllS held at 715 N 8th, Mount V enon, WA on August 31, 2006, n1 8:30 am, fur the purpose of scccyti!lg a resignation, election of a Secretary ,md fur the tran.ssction of such olher husiness as might come before the meeling. Tho following members of the board of directors were present: Maggie Potter. Maggie Poner presided as Chair of the meeting llild appointed herself to serve as Secretary. Toe Chair annoUDCed that the: meeting was being held pursuant to the call of a mnjority of !he direcrors, notice OOl1ll given to or waiver of notice received from (attached to these minutes) nil directors. Tbe Chair aruwunced tlmt a IJllljo,ity oftbe directors was necesS8I)I to constitute a quorom, th.al a quorum was present, and that the meeting was duly called and properly in session. l. Resignation of Peter Buck. As the imt order of business, the board considered the resignation of Peter Buck from BDy and all officer positions. Afier c!isC!ISsion, the following resolution was made, duly seconded and urumimously adopted: R£SOL VED, that the Board of Directtlrs accepted the resigoation of Peter Buck from any and all officer positions. 2. Election of Vice President and Secretnzy. The Board ofDirecl.OrS collJliclered Brarl Nicholson for the offices of Vice President and Secretary. After discussion, tile fallowing resolution wns made, duly seconded ll.lld UIIBDimously adopted: RESOLVED, that the Board ofDhecmrs elect Brad Nichalson as Vice President BIid Secretary of the Alliance for South End. 3. Ratificetion R11d confirmation of Members. The Board of Directors cmisidered the ratification and confirmation of the election of members. After discussion, the following resolution was made, duly seconded eaci l.lllllDimously adopted; RESOLVED, t!uzt the Board of Directors ratify and confirm of the election of the following membexs: Maggie Potter noted thnt she had emailed all of the me:mbei:s nflbe corporation, soliciting their views on filing an appeal of the site pl.an approwl and the ~lnterpretlltion/Policy Decision." ---- Exhibit A i4J 0051008 02/13/07 13:21 FAX 206 626 0675 BUCK & GORDON LLP ------------------------------- All of the member respo!llles supported ASE filing appeals of those two decisions. Potter noted mat sbe has copies of all members' re5JJonses and bnrl instructed the lltlomeys to act in acoordance with the member's direction and, at Brad Nicholson's request, to list him .is a co- !!Jlpellanl Maggie Potter noted that she harl emailed all of the members of!he corporation soliciting their views on filing an appeal of any decision to deny standing in the ongoing appeals. All of the member responses were that the corporation should appenl to the city council if the Hearing Examiner dismisses ASE' s master plan appeal based on standing. Poner no red that she had that she has copie,; of all members' respooses and had instructed the attorneys to appeal immediately if there was a order denying standing. 4, Policy regarding member consultation. The Board ofDlrector.; coru;idered a policy regarding members being consulted in advance of all major decisions concerning appeals or litigation. After discussion, the following resolution was made, duly seconded and unanimously adopted: RESOLVED, that the Board of DirectOJS adopted the following policy to guide furore actions of ASE: "The members shall be consulted by 1.he Board of Directors 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." 5. Ratification of all previous actions of the Board of Directors. The Board of Directors coosidered ratifying all previous actions. After discussion, the following resolution was made, duly seconded and UDanimously adopted: RESOLVED, that the Board of Directors ratifies all previous ectiot1S of the directors. There being no further business 10 come before the m~g, it was adjourned at 9:00 am. AITEST: ~ 006/008 02/lJ/07 lJ:21 FAX 206 626 0675 BUCK & GORDON LLP ------------------ 1 2 3 4 5 6 7 BEFORE THE HEARJNG EXAMINER OF THE CITY OF RENTON In the Matter of the Appeals of 8 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 ) ) ) ) ~ ) ) ) ) ) No. LUA-06-071, SA-A CERTIFICATE OF SERVICE 13 14 15 16 17 18 19 20 21 22 23 24 25 I hereby certify that, on February 13, 2007, I served the foregoing FOURTH DECLARATION OF PETER BUCK and this CERTIFICATE OF SERVICE by facsimile to: Mr. Fred Kaufman Hearing Examiner City of Renton l 055 South Grady Way, 7th Floor Renton, WA 98055 Ms. Ryan Durkan Hillis Clark Martin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 CERTIFJCA TE OF SERVICE -1 Y·\\ill"WE\SITY. ~LAN Af'l'E.A.l,1CERTflC'ATF. 011 S!:J.VlCf. 02!307.DOC Mr. Jerome Hillis Hillis Clark Manin & Peterson 1221 Second Avenue, Suite 500 Seattle, WA 98101-2925 Mr. Lawrence J. Warren Renton City Attorney Warren, Barber, & Fontes 100 S. Second Street Renton, WA 98057 Buck~GordonLLP 20.i:5 Fil"1t Av~nu:e, Suit,; SDO Seenle. WA. 9B121-3140 CZ06i ~e2-954o [i!J 007 /008 0211J/07 13:21 FAX 206 626 0675 ------------------·- Ms. Zanetta Fontes 2 Renton City Attorney Warren, Barber, & Fontes 3 100 S. Second Street Renton, WA 98057 _BUCK. &_£ORDON LLP __ Mr. Ross Radley Attorney at Law Pocock Memorial Rowing Center 3316 Fuhrman Avenue E., #250 Seattle, WA 98102 4 5 6 7 Subscribed to under penalty of perjury under the laws of the State of Washington this 13th day of February, 2007 in Seattle, Washington. 8 I 9 10 11 12 13 14 15 16 17 1 8 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE-2 Y I\L'l'IASP...S!TI: T'l..A.1'1 A.P?~/IJ.\CER.TF1Cl\1E OF SE~VICE.01\JOl noc Buck~Gordon LLP 2:J2S fo~t A11=-nue. S1Jit~ SOO Seanlc, WA 96121-3140 ['20!i) 3.32-9S40 ~ 008/008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE TIIB HEARING EXAMINER OF THE CITY OF RENTON In the Matter of Appeals of Alliance for South End (ASE) and Brad Nicholson re: The Director's Administrative Plan and the Director's Administrative Interpretation/Policy Decision ) ) ) ) ) ) ) ) ________________ ) TO: Hearing Examiner of the City of Renton AND TO: City of Renton, Appellee NO. LUA-06-071-SA-A NOTICE OF ASSOCIATION AND TO: Warren Barber & Fontes, P.S., attorney for City of Renton AND TO: Harvest Partners, Applicant AND TO: Hillis Clark Martin & Peterson, P.S., attorney for Applicant YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that ROSS RADLEY hereby appears in the above-entitled cause in association with Buck and Gordon on behalf of Alliance for South End (ASE) and Brad Nicholson and requests that all further pleadings be served upon him at the address below: Law Offices of Ross Radley, Inc. P.S. 3316 Fuhrman Ave. East Suite 250 Seattle, WA 98102 NOTICE OF APPEARENCE-1 Law Offices of Ross Radley 3316 Fuhrman Avenue East, Suite 250 Seattle, Washington 98102 206-323--3800Fax: 206-323-4044 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this 12th day of February, 2007 NOTICE OF APPEARENCE-2 ROSS RADLEY, WSBA #4972 Associated Attorney for Appellants ASE and Nicholson Law Offices of Ross Radley 3316 Fuhrman Avenue East, Suite 250 Seattle, Washington 98102 206-323-3800 Fax: 206-323-4044 ,' (;~~~ ''k ~ ~ ; Kathy Keolker, Mayor !c."N"f:O .___~.,..,ebruary 8, 2007 Mark Hower, Associate Callison Architecture, Inc. 1420 Fifth Avenue #2400 Seattle, WA 98101-2343 T OF RENTON Planning/Building/PublicWorks Department Gregg Zimmerman P.E., Administrator SUBJECT: THE LANDING LOT 4, REQUEST FOR MINOR MODIFICATION OF APPROVED SITE PLAN (FILE NO. LUA06-071, SA-A) Dear Mr. Hower, I am in receipt of your letter and attachments dated February 5, 2007 wherein you request revisions to the approved Site Plan for Buildings 104, 105, and 108 of The Landing. These buildings are located south of N 10th Street, east of Log al Avenue N and west of Park Avenue N. The building numbering has been revised as follows: Building 104 is now identified as Building 201, Building 105 is now identified as Building 202, and Building 108 is now identified as Building 203. As your letter discloses, two minor adjustments to the approved site plan are proposed. The requested revisions are summarized below: 1) Increase in the size of Building 201 from 12,000 square feet to 14,300 square feet and a decrease in the size of Building 203 from 13,300 square feet to 9,300 square feet; and 2) Changes to the surrounding parking and refuse and recyclable deposit area configurations around each of the buildings. Renton Municipal Code Section 4-9-2001, allows minor adjustments to an approved site plan, provided: 1. The adjustment does not involve more than a ten percent (10%) increase in area or scale of the development in the approved site plan; or 2. The adjustment does not have a significantly greater impact on the environment and facilities than the approved plan; or 3. The adjustment does not change the boundaries of the originally approved plan. Analysis of Request The site plan modifications requested and as shown in your February 5, 2007 submittals have been compared to the Site Plan as approved by the Development Services Division Director on August 17, 2006. The proposed changes in square footage Buildings 201 and 203 would result in a gross floor area of 526,000 square feet for The Landing, which is a 1,700 square foot reduction. The proposed changes would not result in more than a 10 perc~~ in area or scale of the development as the proposal would result in a reduct.gn ~ t~e _ _ _ ~ . RENTON 1055 South Grady Way-Renton, Washmgton 98057 t.\ Th,~ ""'""''""'+"m" ,;no1,. ,..,--,,,..f=J mc,t.,,;,,1 -:tnu/_ n.-,drr.m,,,m.,, AH~.AD OF THF Cl.'RV.E February 8, 2007 Page 2 gross floor area of the entire development. The proposal would not have a greater impact on the environment and facilities, nor would it change the boundaries of the originally approved site plan. The proposed changes to the parking and refuse and recyclable deposit area layouts would result in the creation of 40 additional parking stalls and would not result in a 10 percent increase in the area or scale of the development, would no result in a greater impact on the environment and facilities, and would not change the boundaries of the originally approved site plan. The project site is zoned Urban Center -North 1 (UC-N 1 ), and is also subject to District B of the Urban Center Design Regulations. All applicable setback, lot coverage, and landscaping standards would be achieved. Decision Based on staff's analysis, I have determined the proposed revisions are within the parameters defined by the Renton Municipal Code. Therefore, the proposed modifications to the site plan are approved subject to the following conditions: 1. Prior to the issuance of the final building permit for The Landing, 3 full size copies and 1 8 1h x 11 inch PMT of a final site plan, building elevations, and landscape plan for the Landing shall be submitted to the Development Services Division project manager. 2. The applicant is advised that all code requirements and conditions of the site plan approval are still applicable to the development of the site. The applicant should also understand that Environmental SEPA Review and Site Plan Review may be required for future modifications to the site plan. This determination will be final unless a written appeal of this administrative determination -accompanied by the required $75.00 filing fee -is filed with the City's Hearing Examiner within 14 days of the date of this decision. Should you have any questions regarding this determination or the requirements discussed in this letter, please contact Jill Ding, Senior Planner, at (425) 430-7219. Sincerely, ' ). .. , . . /\;W, Neil Watts, Director Development Services Division cc: LUA-06-071, SA-A Jennifer Henning Jill Ding Parties of Record landing lot 4 site plan mod.doc '· ., '--~ ) / 0 z THE r J\NDING C A L L I S O N 2.5.2007 MINOR ADJUSTMENT TO 1\PPROVED SITE PLAN REVIEW DATED JULY 21'', 2006 CODE DISCUSSION 4-9-200 SITE DEVELOPMENT PLAN REVIEW: I. MINOR ADJUSTMENTS TO AN APPROVED SITE DEVELOPMENT PLAN: Minor modifications may be permitted by administrative determination. To be considered a minor modification, the amendment must not: 1. Involve more than a ten percent (10%) increase in area or scale of the development in the approved site development plan; or The area and scale of the development has not increased more than 10%. 2. Have a significantly greater impact on the environment and facilities than the approved plan; or The impact on the environment and facilities has not significantly increased. 3. Change the boundaries of the originally approved plan. (Ord. 4802, 10-25-1999; Amd. Ord. 4954, 2-11-2002; Ord. 5028, 11-24-2003) The project boundaries have not changed. DESCRIPTION OF CHANGES The change described in this update is limited to the area known as "Quadrant B" (also known as Zone Two) and applies specifically to buildings 201, 202 and 203. No other buildings are included in this update and any changes to them have been, or will be, addressed in other "Minor Adjustment" submittals. There are minor changes to elevations and surrounding parking areas of the listed buildings. The design intent and quality of the approved SPR of July 21 ", 2006 is still maintained in these changes. Included in this update are revised site, landscape and lighting plans as well as new elevations of buildings 201, 202, and 203. CALLISON ARCHITECTURE, INC. 1420 FIFTH AVENUE #2400 SEATTLE. WASHINGTON 98101-2343 -T 206 623 4646 F 206 623 4625 www.callison.com · 1ENl i·, ,,,,N\NG uEVEl9!:'';,, i,2•-JTON Cl•,,, · FEB -7 2007 RECE\VED The Landing Site Plan Conditions of Development (Summary) LUA06-071, SA-A Project Condition Source of When Compliance is Party Notes Condition Required Responsible The applicant shall pay a traffic Planned Prior to Issuance of Applicant mitigation fee at a rate of $75 per new Action Building Permit average daily trip attributed to the Ordinance project. The applicant shall pay a fire Planned Prior to Issuance of Applicant mitigation fee at a rate of S0.52 per Action Building Permit square foot of commercial structure. Ordinance The project shall comply with the Planned During Construction Applicant/Cont Department of Ecology Stormwater Action ractor/Builder Manual for water quality Ordinance improvements and erosion control. Haul hours are limited.from 8:30 am Code During Construction Applicant/ to 3:30 pm Monday through Friday Contractor/Bui Ider Within 30 days of completion of Code During Project Construction Applicant/ grading work the applicant shall Contractor/Bui hydroseed or plant appropriate Ider vegetation. Construction hours are from 7:00 am Code During Project Construction Applicant/ to 8:00 pm Monday through Friday Contractor/Bui and 9:00 am to 8:00 pm on Saturday Ider and no work is allowed on Sundays.