HomeMy WebLinkAboutLUA-07-031_Report 1AFFIDAVIT 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 12'h day of June 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:
Application, Petition or Case No.:
c_Tu~ ]\w/71',Mfi~
Not~ry Public n;.nd ~e State of Washington
Res1dmg at 'J)J, , therem. -
Examiner's Decision on Appeals of the Landing
Building Permit Application Approvals
LUA 07-031 and LUA 07-037
The Decision or Recommendation contains a complete list of the Parties of Record.
Buck@
Gordon LLP
Attorneys at Law
TO:
DATE:
MEMORANDUM OF TRANSMITTAL
Mr. Fred Kaufman, Hearing Examiner
c/o Bonnie Walton
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
June 7, 2007
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
206-382-9540
206-626-067S Fax
www.buckgordon.com
RE: Alliance for the South End re: Building Permit Application
Approvals Appeals
We transmit the following:
Signed Joint Stipulation and Order (re appeals)
D For your information.
D For your signature and return to this office.
D Please file original, acknowledge receipt on copy, and return acknowledged copy in
enclosed self-addressed envelope.
0 Other: Please have Mr. Kaufman sign the enclosed joint stipulation and order and return
to our offices in the enclosed self-addressed, stamped envelope. Please give us a call
with any questions.
TRANSMITIED BY:
MMN:lo
Enclosure
Megan M. Nelson
cc: All Counsel of Record
Y:\WP\ASE\SETTLEMENT\ TM060707 .MMN.DOC
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7 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
8 In the Matter of the Appeals of )
9 Alliance for South End (ASE) and
Brad Nicholson re:
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8060540, B060688
10 JOINT STIPULATION AND ORDER
The Building Permit Application Approvals
11 for Buildings IOI, 102, and 200 _____________ )
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I. STIPULATION
IT IS HEREBY STIPULATED by and between the parties hereto, by and through their
counsel of record, that:
I. The parties in the above-referenced case have resolved this matter through a
settlement, memorialized in a Settlement Agreement and Release dated for reference purposes
June 5, 2007.
2.
request that
Pursuant to the Settlement Agreement and Release, the parties hereby jointly
the Hearing Examiner dismiss the appeals in the above-referenced case with
prejudice.
STIPULATION -I
C:IDOCUMENTS AND SETTINGSIDUNCAN\LOCAL SETTINGS\TEMPORARY INTERNET
FILES\OLKA8\JT STIP AND ORDER HE BLDG PERMIT APP DOC
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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DA TED<bis ~ ofJ=e, 2007
By
Peter L. Bu , SBA #5060
Attorneys for Petitioners Brad Nicholson and
Alliance for South End (ASE)
HILLIS CLARK MARTIN & PETERSON, P.S.
J o e L. Hi s, WSBA #1704
. yan Durkan, WSBA # 11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant Harvest Partners
CITY OF RENTON
By z.n~~#~OJ
Assistant City Attorney
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
STIPULATION -2
C:IDOCUMENTS AND SETTINGSIDUNCAN\LOCAL SETTINGSITEMPGRARY INTERNET
FILESIOLKA8VT STIP AND ORDER HE BLDG PERMIT APP.DOC
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
,
1 II. ORDER
2 Pursuant to the foregoing Stipulation of the parties, it is hereby ORDERED that the appeals
3 in the above-referenced case are DISMISSED with prejudice.
DONE this __ day of June, 2007.
By
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City of Renton Hearing Examiner
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STIPULATION -3
C:\DOCUMENTS AND SETTINGS\DUNCANILOCAL SETTINGS\TEMPORARY INTERNET
F1LES10LKA8VT STIP AND ORDER HE BLDG PERMIT APP.DOC
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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1 II. ORDER
2 Pursuant to the foregoing Stipulation of the parties, it is hereby ORDERED that the appeals
3 in the above-referenced case are DISMISSED with prejudice.
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. '\-\ch-
DONE this _\d-__ day of June, 2007.
STIPULATION -3
CIDOCUMENTS AND SETTINGS\DUNCAN\LOCAL SETTINGS\TEMPORARY INTERNET
FILES10LKA8VT STIP AND ORDER HE BLDG PERMIT APP.DOC
ng Examiner
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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CITY OF RENTON
MAY .2 .2 2007
RECENED
CITY CLER~S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and Brad
Nicholson re:
The Building Permit Applications Approvals
for Buildin s 101, 102, and 200
NO. B60540, B60688
CITY OF RENTON'S REPLY TO
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S
MOTIONS TO DISMISS BUILDING
PERMIT APPEALS
I. INTRODUCTION
In their Response, Appellants have failed to explain how the city can refuse to
issue a building permit where all conditions precedent to such issuance have been
met. Appellants do not explain in what way any building proposed for The Landing
does not comply with the provisions of the Building Code requirements (local or
international). Rather, Appellants want the Hearing Examiner to treat the building
permits as though Appellants had, in fact, sought and obtained judicial relief, after
posting of a bond, to stop construction. Appellants would have the city violate the
rights of the landowner or developer to have building permits issue based on prior
approvals that have not been reversed. The issuance of building permits under these
circumstances are ministerial only and appeal to the Hearing Examiner is not the
proper forum to challenge the building permits.
CITY OF RENTON'S REPL y TO o R I G I NA L
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS -I WARREN BARBER l:J FONTES, P.S.
ATTORNEYS AT LAW
100 S01.JTII SECOND STREET • POST OFFlCE BOX 626
RENTON, WASHINGTON 98057
PHONE HH) 25S-S678 • FAX 14?5) H5-54H
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IL ARGUMENTANDAUTHORITIES
A. The Building Permits Must Issue
In a pre-LUP A case, the state supreme court determined that
Once the application for a building permit and the plans and
specifications filed with it show that the proposed building will
conform to the zoning regulations and meet the structural requirements
of the building code of the city, the pennit shall issue as a matter of
right, and the ordinances vest no discretion in the building
department of the city to refuse either the application for or to deny the
issuance of the building permit. (Emphasis added.)
State ex rel Craven v. Tacoma, 63 Wn.2d 23, 28, 385 P.2d 372 (1963).
In the case before the Hearing Examiner, the Appellants have not identified
any violation of structural requirements of the building code for Buildings 101, 102,
or 200. If Appellants were complaining that the structural integrity of any of the
buildings was suspect and could put people at risk, this appeal would make some
sense. If the Appellants were complaining that the disabled accessibility to any of
these buildings was in violation of building code requirements, this appeal would
make some sense. Those kinds of complaints are not made herein.
The state of the law did not change with the enactment of the Land Use
Petition Act (LUPA). RCW 36.70C. In 1998, the high court decided Mission
Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998). In that case, a
developer had submitted all necessary applications for a Planned Unit Development
to construct apartment buildings. After all of the necessary submissions were
received by the city and hearings held, the city notified the developer that it was
prepared to issue a grading permit. Thereafter, the city refused to issue the pennits
pending the results of additional studies. Ultimately, the supreme court ruled in favor
CITY OF RENTON'S REPLY TO
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS -2 WARREN BARBER cr FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STREET • POST OFFICE BOX 626
RENTOS, WASHINGTON 980Si
PHONE Hl'i) 255,11678 • FAX (U~) 25S-5'1H
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of the developer, saying, "[i]n the eyes of the law the applicant for a grading permit,
like a building permit, is entitled to its immediate issuance upon satisfaction of
relevant ordinance criteria and the State Environmental Policy Act of 1971."
(Emphasis added.) Mission Springs, at 960.
Appellants have not explained to the Hearing Examiner how it is that the city
could ignore the state of the law and withhold the building permits on The Landing
where there are no violations of the Building Code. The fact is the city could not.
There was no discretion involved, and, consequently, nothing to appeal.
B. Subjecting The Building Permits To Policy (Discretionary) Analysis
Would Be Unconstitutional
"Administrative authorities are properly concerned with questions of
compliance with the [ zoning] ordinance, not with its wisdom. To subject individuals
to questions of policy in administrative matters would be unconstitutional." Craven,
supra, at 28.
The Mission Springs court also dealt with the question of the constitutionality
of a city's conduct that related to withholding a grading permit. At 962, the court
said: "Mission Springs had a constitutionally cognizable property right in the grading
permit it sought."1
The Appellants, who claim to be concerned about the city as a whole, would
have the city travel the path between the monsters of Greek mythology, Scylla and
Charybdis. On the one side of the channel, if the city were to withhold the permits it
1 The Mission Springs court went on to discuss the concepts of takings and substantive due process, a
discussion left for another day in another forum.
CITY OF RENTON'S REPLY TO
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS -3 WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STRt:ET • POST OFFICE BOX 6i6
RENTON, WASHINGTON 98057
PHONE 142S) 25~-867A • FAX (-42S) HS-i<l-14
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would face litigation from the developer; on the other side, if the city were to grant
the permits it would face litigation from the Appellants. The city chose not to violate
constitutional rights and issued the permits.
Appellants' appeals of the building permits are based on the premise that the
underlying Master Site Plan and Site Plan were flawed. Their apparent theory is that
if either the Master Site Plan or Site Plan is flawed, then no building permits reliant
thereon can issue. Appellants could have sought a judicial remedy to stay the actions
on The Landing, pursuant to RCW 36. 70C.100. Only the Appellants know for sure
why they chose not to take that route, especially in light of the fact that there is a
LUP A matter pending in superior court. Appellants are asking the Hearing Examiner
for relief that Appellants have not seen fit to ask of the superior court, the forum that
could grant the relief sought.
C. Brad Nicholson's Grounds For Standing Do Not Relate To His
Building Permit Appeals.
Appellants have failed to explain how Brad Nicholson's (the only identified
member of ASE) alleged grounds for standing relate to the building permits. His
complaints that the stormwater runoff will harm the rivers and Lake Washington have
not been shown to be linked to the structural requirements of the building code.
Neither have the Appellants explained how Nicholson's traffic complaints are linked
to the building code. Nicholson's complaints that he was not allowed to participate in
the process is unavailing. There is no process in which to participate for purposes of
the building permits, which must issue as a matter of right after the Site Plan
approval.
CITY OF RENTON'S REPLY TO
APPELLANTS'RESPONSETO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS • 4 WARREN BARBER er FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STREET • POST OFFICE BOX 626
RENTON, WASHINGTON 96057
PHONE {"'!5) lH-11678 • FAX {·H5) 255-HH
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D. Nicholson and ASE's lack of standing
Renton incorporates by this reference, the arguments made on behalf of
Harvest Partners regarding the standing ( or lack thereof) of Brad Nicholson and ASE
relating to the Building Permit Appeals (Landing III and IV). Further, Renton
incorporates by this reference the arguments made in briefing by Renton and Harvest
Partners relating to the standing of ASE and/or Nicholson in the Appeals of the
Master Site Plan Approval and the Site Plan Approval for The Landing (Landing I
and II).
F. Site Development Plan Regulations And Building Code Provisions Do
Not Prevent the Issuance of The Landing's Building Permits.
Appellants argue that the Site Development Plan Regulations serve to prevent
the issuance of the building permits herein. (See, page 9, In. 6, et seq. of Appellants'
Response.) However, the provisions cited by Appellants do not require the city to
withhold the building permits at issue here. Rather, those section allow the building
permits to issue after the Reviewing Official has approved the Site Plan (RMC 4-9-
200B(2)) and after the appeal period has expired (RMC 4-9-200K). Both of those
conditions have been met in this case.
Appellants also argue that the International Building Code prohibits the
issuance of the subject building permits. (See, pg. 10, ln. 4, et seq. of Appellants'
response.) Once again, Appellants aim the arrow at the wrong target. The quoted
section (see page 10, lines 8-11, of Appellants' Response) says nothing of prohibiting
CITY OF RENTON'S REPLY TO
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS -5 WARREN BARBER&FONTES, P.S.
ATTORNEYS AT LAW
I 00 SOOTH SECOND STREET • POST OFFICE BOX 616
RENTON, WASHINGTON 960S7
PHONE {~lS) 25S-8678 • FAX (,t.H) H5-5~74
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the issuance of the permits. Rather, that provision stands for a proposition with which
the city agrees: If, after issuance of the permits, a quasi-judicial or judicial forum
determines that the underlying Site Plan approval is reversed, the fact that the city
issued the building permits cannot be used as an estoppel against the city for ordering
a stoppage of work.
III. CONCLUSION
The issuance of the building permits for buildings 101, 102, and 200 were
non-discretionary, ministerial acts. Appellants make no complaints related to any
substantive requirements of the building code. The permits must issue as a matter of
right, the denial of which would be unconstitutional. Accordingly, these appeals must
be dismissed.
DATED this 22°d day ofMay, 2007.
CITY OF RENTON'S REPLY TO
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S MOTIONS
TO DISMISS BUILDING PERMIT APPEALS -6
WARREN BARBER & FONTES, PS
L. Fontes, WSBA 9604
eys for City of Renton
WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
100 SOUTH SECOND STREET • POST OFFICE BOX 6l6
RENTON, WASHINGTON 98057
PHONE (4H) lH·8678 • FAX (OS) Z55-H74
ST ATE OF \VASHINGTON, COUNTY OF KING )
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Jody L. Barton, being first duly sworn on oath that she is the Legal Advertising
Representative of the
Renton Reporter
a bi-weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a bi-weekly newspaper in King County, Washington. The
Renton Reporter has been approved as a Legal Newspaper by order of the
Superior Court ol" the State of Washington for King County.
The notice in the exact form annexed \V3S published in regular issues of the
Renton Reporter (and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on May 12, 2007.
The full amount of the fee charged for said foregoing publication is the sum
of$130.20.
arton
gal Advertising Representative, Renton Reporter
Subscribed and sworn to me this l5ili day of May, 2007.
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B D Cante Ion -~~ ~ ••• , ••••.•• 0' ,,'
Notary Public for the State of Washington, Residing in Kent, Washi~/: WP..~,,,,
P. 0. Number: 11111 "1'
NOTICE OF APPEAL HEARING
RE~"J'ON HEARING EXAMJKER
RENTON. Wi\SHING1'0N
A Public Hearing will he held by the
Renton Hearing Exmniner in the
Council Chambers on the seventh
floor of Rent.on City Hall, 1055 South
Grady Way, Renton, Washington, on
May 24, 2007 at 9:00 AM to consider
Ute-following petitions:
The I....-·mding Building Permits
B060688 & B060540 Appeals
LUA07--031,AAD & LUA07-037,
AAD
Location: 1002 Park Avenue N.
Jx,scription: Appeal of Building
Perm;\ B060688, Building 200 of The
Landing, wl1ich is a 18,100 s.quare
foot one-story building locat.ed i-outh
ofN 10th Street between Logan
J\n,nne N and Park i\n·11m' N. The
:1ppt·:d co11\(;ndc1 Ll:al tlic liuildi1i?"
permit wa..; issued crroncuu~ly as it
i.:, bu::ed on a flawed Ji.taster Site
Phm aJJproval and ,mb;.;equent Sit~
Plan approval.
Appeal of Building Permi l B060540
for .Buildinbts 101 and 102 at the
Landing. Building 101 is a io,100
square foot one-story building and
Building 102 is a 21,000 square foot
one-story building. The buildings
are attached and are located
northea.:,t of the intersection of Park
Avenue N and l\" 8th Street The
appellant contends that the lm.ilding
permit was issued enoneously a::: the
approval was based on a flawed
Mast.er Site Plan approval and
subsequent Site Plan approval.
lfthe 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 invit.ed ro
be present at the Public Hearing. 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.
Published in the Renton Reporter
May 12, 2007. #863384
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CITY OF RENTON
MAY 2 2 2007
RECEIVED
CITY CLERK'S OFFICE
Ji~t ;uf> by
lft5c;I tcl{,,.1f',
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:
Building Permit Approvals for
Buildings 10 I, I 02 and 200.
B060540, B060688
APPLICANT'S REPLY TO ASE AND
NICHOLSON RESPONSE TO MOTIONS
TO DISMISS ASE AND NICHOLSON
APPEALS FROM THE LANDING
BUILDING PERMIT APPROVALS
I. INTRODUCTION
13 Applicant Harvest Partners brings this Reply to Appellants' responses to Applicant's
14 and City's motions to dismiss Appellants' building permit appeals for The Landing project.
15 Because Appellants have failed to provide sufficient evidence to establish that Mr. Nicholson
16 and ASE have standing to bring these appeals, and because the Examiner lacks jurisdiction to
17 hear the claims made by Appellants in these appeals, Applicant respectfully requests that the
18 Examiner dismiss Appellants' appeals of the Building Permit Approvals.
19 II. STATEMENT OF FACTS
20 On November 28, 2006, the City of Renton issued a decision approving building
21 permits for Buildings IOI and 102. Buildings 101 and 102 are located in the southeast
22 quadrant of The Landing project. On February 27, 2007, the City of Renton issued a decision
23 approving a building permit for Building 200. Building 200 is located in the north central
24 portion of the southwest quadrant of The Landing project. The City's approvals of the
25 building permits for Buildings IO I, I 02 and 200 in The Landing are collectively referred to
26 herein as the "Building Permit Approvals."
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Applicant's Reply -Page 1 of 8
JAIGINAL
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
Additional facts relevant to this Reply are set forth in Applicant's Motions to Dismiss
2 ASE and Nicholson Appeals from The Landing Building Permit Approvals for Lack of
3 Standing, which motions are incorporated herein by this reference.
4 III. ARGUMENT 1
5 A. Mr. Nicholson Lacks Standing
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J. Mr. Nicholson's alleged injuries do not arise from
the Building Permit Approvals.
To establish standing, the appellant bears the burden of demonstrating that "he or she
will be specifically and perceptibly harmed by the proposed action." RMC 4-8-11 O.E(3)(b );
RMC 4-11-010. In these appeals, the only actions subject to challenge are the City's
Building Permit Approvals. The basis for Mr. Nicholson's standing, therefore, must arise
from the Building Permit Approvals, not from prior City approvals of the master plan or site
plan for The Landing.
Despite the Examiner's specific request for briefing on this issue at the pre-hearing
conference, and despite extensive briefing filed by Mr. Nicholson and ASE in their
Responses, Appellants have nevertheless failed to establish that Mr. Nicholson suffers any
injury in fact arising directly from the Building Permit Approvals. Instead, Appellants
attempt to rest Mr. Nicholson's standing upon claims of injury arising solely from prior
approvals, such as alleged harm from violations of development standards related to
maximum setbacks (an issue raised in the site plan appeals), or alleged harm from the
inappropriate presence of suburban-style development (an issue raised in the master plan and
site plan appeals). See Declaration of Brad Nicholson, at 2.
Perhaps recognizing their inability to assert any direct injury from the Building Permit
Approvals themselves, Appellants try to bolster their position with citations to other cases in
which appellants were deemed to have standing for purposes of challenging building permit
appeals. Appellants' Response, at 13. However, the facts of those cases only magnify the
1 In addition to the arguments presented herein, Applicant incorporates by this reference the arguments
made on behalf of the City of Renton in the City of Renton's Reply to Appellants' Response to Applicant's and
City's Motions to Dismiss Building Permit Appeals, dated May 22, 2007.
Applicant's Reply -Page 2 of8
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623. 7789
deficiency of Appellants' standing claims in the current appeals. For example, the Asche
2 decision involved a challenge to a building permit approval based upon an injury arising
3 directly from the building itself -specifically, that the building's height exceeded the
4 maximum allowable height under the zoning ordinance. Asche v. Bloomquist, 132 Wn.App.
5 784 (2006).
6 Unlike the facts in Asche, however, Appellants' Response lacks any allegation of
7 direct injury from the buildings themselves. Indeed, Appellants' appeals appear to focus on
8 everything but the approved buildings, such as the location of the buildings relative to the
9 streets, or the presence of surface parking driveways near the buildings. Appellants point to
1 o no specific criteria, in the Renton Municipal Code or the International Building Code,
11 requiring consideration of such extraneous items prior to approval of a building permit. To
12 the contrary, such site elements should be, and have been, considered at earlier stages of
13 development review, including the master plan and site plan stages. Any claims based upon
14 these supposed injuries reflect improper collateral attacks on prior City approvals and, as
15 discussed below, are not properly before the Examiner in the present appeals.
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2. Alleged procedural injuries are an insufficient basis for standing.
Appellants also attempt to show direct harm from the Building Permit Approvals by
asserting certain "procedural injuries," such as failure to hold hearings before the Examiner
prior to the Building Permit Approvals. See, e.g., Appellants' Response, at 12. Even if these
were valid claims (which they are not), loss of an alleged procedural entitlement, by itself,
does not constitute sufficient injury in fact to support standing to sue. Allan v. Univ. of Wash.,
140 Wn.2d 323, 332-33, 997 P.2d 360 (2000) ("Absent a concrete interest, injury-in-fact
standing ... is not conferred upon [ a plaintiff] merely on the basis of an asserted failure on the
part of the agency to follow procedural requirements"). As the Supreme Court has
determined, there must be a specific, direct injury beyond the alleged procedural harm to
establish standing:
We do not hold that an individual cannot enforce procedural rights; he
assuredly can, so long as the procedures in question are designed to protect
Applicant's Reply -Page 3 of 8
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 981 O 1-2925
206.623.1745; fax 206.623.7789
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some threatened concrete interest of his that is the ultimate basis of his
standing.
Lujan v. Defenders of Wildlife, 504 U.S. 555,573 n.8 (1992). As discussed above, Appellants
fail to establish any specific, concrete injuries in fact to Mr. Nicholson. Their claims of
procedural injury are therefore insufficient to grant standing.
3. Mr. Nicholson cannot use this forum to raise issues arising
from prior approvals.
Washington courts prohibit appellants from using appeals of land use decisions to
collaterally challenge prior approvals. See, e.g., Habitat Watch v. Skagit County, 155 Wn.2d
397, 120 P .3d 56 (2005). The only approvals at issue in these appeals are the Building Permit
Approvals. Therefore, Mr. Nicholson's appeals of the Building Permit Approvals must be
limited to the validity of these approvals. Mr. Nicholson cannot in these appeals collaterally
challenge the site plan or master plan approvals, nor can his standing for these appeals be
based upon injuries arising out of those previous decisions.
As discussed above, examination of Mr. Nicholson's supposed "injuries" reveals that
none of the injuries arises from the Building Permit Approval. Instead, each of the purported
injuries relates back to prior approvals for The Landing, including the master plan and site
plan approvals. By attempting to establish standing with claims of injury arising from prior
approvals, Mr. Nicholson engages in a collateral attack on the prior City decisions. Such a
collateral attack is not permitted.
Despite Appellants' claims that they are not engaging in collateral attacks on prior
approvals, various sections of Appellants' Response make their true intent perfectly clear:
By filing these appeals of the Building Permit Approvals, Nicholson and other
members of ASE are seeking to vindicate their interests in the enforcement of
maximum setbacks, pedestrian friendly design regulations, and adequate Site
Plan and environmental review for the benefit of their community.
Appellants' Response, at 10-11. Notably, all of these interests Mr. Nicholson seeks to
"vindicate" were issues raised in earlier appeals. Again in the next sentence, Appellants
indicate their intent to attack the already-completed environmental review process via these
appeals: "each structure that is built using approvals piggy-backed on the City's flawed and
outdated environmental analysis will contribute incrementally to unmitigated stormwater and
Applicant's Reply -Page 4 of 8
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
traffic impacts." Appellants' Response, at 11. As evidenced by this language, Appellants'
2 primary intent in filing these appeals appears to be an attempt to get "another bite at the
3 apple" of prior approvals, including the environmental review, the master plan approval, and
4 the site plan approval.
5 Rather than openly admit to their use of the City's appeal process to collaterally attack
6 prior approvals, however, Appellants instead attempt to inject additional criteria into the
7 City's building permit review process. For example, Appellants point to sections of the
8 Renton Municipal Code relating to the City's review of site plan applications, suggesting "an
9 intent by City Council to subject building permits to continuing review for compliance with
10 the Site Plan itself as well as particular Code requirements governing site design."
l l Appellants' Response, at 9 (emphasis added). This is a mischaracterization of the Renton
12 Municipal Code. The specific code criteria governing site design are applicable to review of
13 master plans and site plans, not building permit applications.2 Appellants' suggestion that
14 these same code requirements must be individually applied again in the City's review of
l 5 building permit applications -their so-called "redundant review"3 -has no basis in the
t 6 Renton Municipal Code. Once a master plan and site plan have been approved, as here, those
l 7 criteria have been met. Prior to approving the building permit application, the City need not
l 8 step through each and every element of the site plan criteria yet again.
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4. $tandingfor one ap'feal does not necessarily result in standing
m a separate appea .
Finally, Appellants suggest that because Mr. Nicholson was found to have standing in
prior appeals, he must therefore be granted standing in this appeal. Appellants' Response,
at 8 ("Just as Nicholson has standing to appeal the Site Plan due to harms from
nonconformities and impacts associated with The Landing, he necessarily has standing to
appeal building permit decisions ... "); Appellants' Response, at 14 ("The Hearing Examiner
has already held that these allegations of harm give Bran [ sic J Nicholson standing"). This
2 The Renton Municipal Code makes this very clear, stating: "Site Development plan review is divided into
two types: Master Plan and Site Plan." RMC 4-9-200.A (emphasis added).
' Appellants' Response, at 22.
Applicant's Reply -Page 5 of 8
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
assertion has no support in the Renton Municipal Code or under Washington or federal
2 standing jurisprudence. To the contrary, courts have consistently held that standing must be
3 established as to each and every claim. See, e.g., DaimlerChrysler Corp. v. Cuna, 126 S. Ct.
4 1854, 1867 (2006) ("The standing inquiry requires careful judicial examination of a
5 complaint's allegations to ascertain whether the particular plaintiff is entitled to an
6 adjudication of the particular claims asserted."). Appellants' reliance upon prior decisions
7 granting Mr. Nicholson standing is therefore improper and irrelevant for purposes of these
8 appeals.
9 To establish standing for these appeals, Appellants must demonstrate that Mr.
IO Nicholson has suffered or will suffer specific harm arising from the Building Permit
11 Approvals. Rather than assert any direct harm from the buildings permits, however,
12 Appellants attempt to rely upon claims of alleged procedural injuries, collateral attacks on
13 prior approvals, and Mr. Nicholson's standing in prior appeals. Appellants have failed to
14 meet their burden to establish Mr. Nicholson's standing.
15 B.
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ASE Lacks Standing
]. ASE fails to demonstrate that it has a member with standing.
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To establish associational standing, the association bears the burden of establishing
that it has a member with standing to bring the appeals. Mr. Nicholson is the only named
member of ASE. As discussed above, because Mr. Nicholson has not established an injury in
fact arising out of the Building Permit Approvals, Mr. Nicholson lacks standing to bring these
appeals. Without a member with standing, ASE lacks associational standing to bring these
appeals.
2. ASE's December Byh,ws reflected insufficient control by its members.
In addition to ASE's inability to show that it has a member with standing, ASE lacked
associational standing to appeal the Building Permit Approval of Buildings IO I and 102. As
detailed in prior briefing by Applicant, the Examiner has dismissed all of ASE's prior appeals
for lack of standing. At the time ofASE's December appeal of the building permit approval
for Buildings 101 and 102, ASE's Bylaws and other corporate documents still reflected an
Applicant 's Reply -Page 6 of 8
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
organization in which its member, Mr. Nicholson, had no meaningful control over the
2 association. As a mere bystander to the appeals, Mr. Nicholson was not being represented by
3 ASE, and ASE lacked associational standing.
4 C. The Examiner's Jnrisdiction is Limited
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At the pre-hearing conference, the Examiner requested briefing on the issue of
whether the Examiner has jurisdiction to hear these appeals. Applicant acknowledges that the
Renton Municipal Code specifically provides for appeals of building permit approvals, and
that situations can therefore exist in which the Examiner has jurisdiction to hear appeals of
building permit approvals. In this case, however, the appeals are not properly before the
Examiner for several reasons.
First, the Renton Municipal Code limits the Examiner's authority on appeal: "the
Examiner shall have all of the powers of the office from whom the appeal is taken insofar as
the decision on the particular issue is concerned." RMC 4-8-I IO(E)(l)(c). In this case, where
the approval of the building permits was a ministerial decision by the Development Services
Division, the Examiner's authority on review is narrowly limited to whether that ministerial
decision was proper. Appellants' requests of the Examiner to apply extraneous code
provisions and abstract criteria to the building permit review process are beyond the
jurisdiction and authority of the Examiner.
Second, to the extent that these appeals are in fact attempts by Appellants to revisit or
collaterally attack prior approvals, such claims are beyond the jurisdiction of the Examiner.
Finally, these appeals are not properly before the Examiner if the appellants lack
standing to bring the appeals. As discussed above, ASE and Mr. Nicholson lack standing to
appeal the Building Permit Approvals.
While it is possible in certain cases for the Examiner to have jurisdiction over building
permit appeals, this is not such a case. Because the Examiner lacks authority to grant
Appellants' requested relief, and because Appellants lack standing to bring these appeals, the
appeals must be dismissed.
Applicant's Reply -Page 7 of 8
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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IV. CONCLUSION
The parties to an appeal must have standing as to the particular claims asserted in their
appeal. Mr. Nicholson presents no evidence of particularized harm arising out of the Building
Permit Approvals, attempting to rely instead upon alleged procedural injuries and collateral
attacks of prior approvals. Because Mr. Nicholson has not established that he has standing to
bring these appeals, his appeals must be dismissed.
ASE has the burden to demonstrate its associational standing. Because ASE has not
demonstrated that it has a member with standing, ASE has failed its burden. Furthermore,
ASE's corporate documents at the time of its appeal of the approvals for Buildings 101 and
102 demonstrated no material change in the status of its members since the Examiner's
previous dismissals of ASE's appeals. ASE has failed to carry its burden to demonstrate
associational standing, and its appeal must be dismissed.
Finally, to the extent Appellants raise issues beyond the scope of the building permit
review process, these exceed the scope of the Examiner's authority and the Examiner lacks
jurisdiction to hear these appeals.
For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
ofRenton's Building Permit Approvals should be DISMISSED.
DATED this {id___ day of May, 2007.
#353374 18449-004 7kny0 I !.doc 5/21/07
Applicant's Reply-Page 8 o/8
HILLIS CLARK MARTIN &
PETERSON, P.S.
By,_j__:_',,,;!C£.~:_Lf,,~~~~-
Jerome L. Hill' , WSBA # 1704
T. Ryan Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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CITY OF RENTON
MAY 2 2 2007
RECEIVED
CITY CLERK'S OffiCE
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.B060540
B060688
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. 1 hereby certify that
14 on the 22•d day of May 2007, I caused to be delivered via legal messenger a true and correct
15 copy of Applicant's Reply to ASE and Nicholson Response to Motions to Dismiss ASE and
16 Nicholson Appeals From The Landing Permit Approvals; and this Certificate of Service to
17 the following:
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Mr. Fred Kaufman, Hearing Examiner
City of Renton
1055 South Grady Way
Renton, WA 98055
LawrenceJ. Warren
Zanetta Fontes
Warren Barber & Fontes, P.S.
100 South Second Street
Renton, WA 98057
Certificate of Service -Page 1 of 2
Office of the Clerk
City of Renton
1055 South Grady Way
Renton, WA 98055
Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
HILLIS CLARK MARTIN &
PETERSON, P.S.
ORIGINAL 500 Galland Building, 1221 Second Ave
SealtleWA 98101-2925
206.623.1745; fax 206.623.7789
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Ross Radley
Law Offices of Ross Radley, Inc. P.S.
3316 Fuhrman Ave. East, Suite 250
Seattle, WA 98102
J
DATEDthis 2.,2-dayofMay,2007.
#345401 18449-004 7#$h01!.doc 5/22/07
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
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CITY OF Rl:NTON
MAY O 8 2007
RECEIVED
CITY CLERK'S OFFICE
/..'Jlp,n .
11it, i!,fftlMP'
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) re:
The Director's Administrative Decision
Designating The Landing Master Plan
Application a Planned Action
The Director's Master Site Plan Approval
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) ________________ )
Alliance for South End (ASE) and
Brad Nicholson re:
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The Director's Administrative Site Plan Approval)
and Interpretation/Policy Decision ) ________________ )
NO. LUA-05-136, SA-A, SM
CERTIFICATE OF SERVICE
I hereby certify that, on May 8, 2007, I caused to be served the foregoing APPELLANTS'
RESPONSE TO APPLICANT'S AND CITY'S MOTIONS TO DISMISS BUILDING
PERMIT APPEALS and this CERTIFICATE OF SERVICE by hand delivery to:
Ms. Bonnie Walton, City Clerk
21 City of Renton
Mr. Jerome Hillis
Hillis Clark Martin & Peterson
1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
1055 South Grady Way, 7th Floor
22 Renton, WA 98055
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Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
CERTIFICATE OF SERVICE -1
D
D
Ill
D
Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
Bucke Gordon LLP
Y:\WPIASE\SITE PLAN APPEAL\CERTJFICATE OF SERVICE.2007.DOC 2025 First Avenue, Suite 500
Seattle, WA 98121
ORIGINAL (206) 382-9540
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Ms. Ryan Durkan
Hillis Clark Martin & Peterson
1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
D Via Facsimile
D Via Email
II Via Hand Delivery
D Via U.S. Mail
Ms. Zanetta Fontes
Renton City Attorney
Warren, Barber, & Fontes
I 00 S. Second Street
Renton, WA 98057
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~
Via Facsimile
Via Email
Via Hand Delivery
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 II Via Hand Delivery
D Via U.S. Mail
Mr. Fred Kaufman, Hrg Examiner (c/o Ms.
Bonnie Walton, City Clerk)
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
D
D
II
D
Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
Subscribed to under penalty of perjury under the laws of the State of Washington this 8th day
of May, 2007 in Seattle, Washington.
CERTIFICATE OF SERVICE-2
Y:IWPIASEISITE PLAN APPEALICERTIFICATE OF SERVICE.2007.DOC
Buck@Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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CITY OF Rl:NTON
MAY O R 2007
RECEIVED
aTY CLERK'S OF'FICE
2: Jl/"' //Uf ~
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 Approvals
for Buildings IO I, I 02, and 200
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B060540, B060688
APPELLANTS' RESPONSE TO
APPLICANT'S AND CITY'S
MOTIONS TO DISMISS
BUILDING PERMIT APPEALS
) _______________ )
I. INTRODUCTION
Appellants Brad Nicholson and Alliance for South End (ASE) ask the Hearing
Examiner to deny the Applicant's and City's motions to dismiss Appellants' appeal of the
Building Permit Approvals for Buildings 101, 102, and 200.
II. ST A TEMENT OF FACTS
Brad Nicholson is a lifelong citizen of Renton who owns property and lives near
The Landing project site, regularly commutes through the area, and plans to shop and
utilize pedestrian amenities on the site after construction is completed.' Appellant ASE is
a Washington non-profit corporation whose purpose is to "advance its members' interest
in the environment, land use planning, and governmental fiscal integrity of the City of
Renton."' ASE's membership is comprised of Mr. Nicholson and several other Renton
citizens who are similarly aggrieved by The Landing.'
1 See Declaration of Brad Nicholson, attached hereto as Exhibit A, at~ I.
2 See id. at~ 5; see also ASE's Articles of Amendment, attached (with Consent to Action of Directors in
Lieu of Meeting) as Exhibit A. l to Nicholson Declaration.
3 Nicholson Declaration at~ 5.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS-I
Y 1WP\ASE\S1TE PLAN APPEAL\POSTHEAR[NG BRIEFS\REPL Y TO POST HEARING BRIEF 041707 FINAL DOC
Buck@Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
{206) 382-9540
ORIGINAL
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Mr. Nicholson has attempted to challenge City decisions involving the Landing
site since 2003, and the Hearing Examiner has consistently recognized that he has
standing to do so. In holding that Mr. Nicholson had standing to challenge the Site Plan
for The Landing, the Examiner stated that
[t]his office ... 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.
[. ' 'l
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 ...
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. 4
In 2003 and 2004, during his efforts to challenge earlier City actions affecting the
site of The Landing Project as a pro se litigant, Mr. Nicholson found himself outgunned
4 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for
Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 5,
attached as Exhibit F to Applicant's Motions to Dismiss.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS-2
Y:\WP\ASE\SITE PLAN APPEAL\POSTI-!EARING BRJEFS\REPL Y TO POST HEARING BRIEF 041707 FINAL.DOC
Buck@ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA98121-3140
(206) 382-9540
I by the resources available to the City and other project proponents.' In 2006, Mr.
2 Nicholson personally encouraged the formation of a nonprofit to represent citizens
3 concerned about the Landing Project in particular and the integrity of the City's land use
4 planning process in general, which resulted in the incorporation of ASE on May 19, 2006.6
5 ASE has followed the direction of its members since that date. 7
6 ASE's appeals of the Master Plan Approval and Planned Action determination for
7 The Landing, filed in May and June of 2006, were dismissed by the Examiner for lack of
8 associational standing in a decision issued on September 5, 2006.' In that decision, the
9 Examiner found that "[ASE's] bylaws give neither Mr. Nicholson nor any other individual
10 member nor a majority of the members any right to control the appeal."' In response to the
11 Examiner's concerns about the voting rights of members as provided in ASE's bylaws,
12 ASE adopted a series of Amended Bylaws in successive attempts to provide the
13 appropriate level of "control" by its members. '0
14 On December 10, 2006, ASE's directors adopted Amended Bylaws that granted
15 extensive voting rights to the members, including the election of directors, any increases
16 or decreases in the number of directors, the removal of directors at any time with or
17 without cause or notice, all amendments to ASE's Bylaws, all amendments to the
18 corporation's Articles of Incorporation, and "any other matters that may properly be
19 presented to the Members for a vote.""
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'Nicholson Declaration at 16.
6 Id.
1 Id.
8 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for
Alliance for Alliance for South End (ASE) and Progressive Alliance for a Sustainable Southend (PASS),
September 5, 2006, attached as Exhibit C to Applicant's Motions to Dismiss.
9 Id. at p. 6.
10 Nicholson Declaration at 17.
11 See Nicholson Declaration at 1 8; see also Amended Bylaws of Alliance for South End, December 10,
2006, attached to Nicholson Declaration as Exhibit A.2
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS -3
Y \WP\ASE\SITE PLAN APPEAL\POSTHEARTNG BRfEFS\REPLY ·10 POST HEAR.ING BRJEF 041707 FINAL.DOC
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2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382"9540
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ASE and Nicholson filed their appeals of the Building Permit Approvals for
Buildings 101 and 102 on December 11, 2006. Pursuant to ASE's corporate purpose,
adopted policy, and Bylaws provisions regarding member consultation, ASE's members
were consulted before the appeals were filed and no objections were raised.12
On February 7, 2007, ASE's members exercised their right to approve
amendments to ASE's Bylaws by granting additional rights to ASE's members in the
Bylaws, including the right to determine the qualification of prospective members and to
elect new members; the right to vote on any contemplated termination of membership; and
the right to remove directors "with or without cause." 13
ASE's appeal of the Site Plan for the Landing was dismissed by the Examiner for
lack of standing in a decision issued on February 22, 2007 .14 In that decision, the
Examiner found that "ASE is still not governed by its members."1
' However, as noted
above, the Examiner found that Brad Nicholson did have standing to file the appeal
because he alleged harms resulting from faulty project design, noncompliance with Code
requirements, and traffic and stormwater impacts.16
On March 11, 2007, a special meeting of the members and directors of ASE was
held at a member's house in Renton.17 At that meeting, the members were briefed on the
status of ASE's appeals and standing issues in the appeals, discussed members' goals
regarding The Landing project, and ratified all past actions of the members and directors,
12 See Nicholson Declaration at ,i 9; see also Minutes of Special Meeting of Board of Directors of Alliance
for South End, December 10, 2006, attached to Nicholson Declaration as Exhibit A.3
13 See Nicholson Declaration at ,i 10; see also Amended Bylaws of Alliance for South End, February 7,
2007, 2006, attached to Nicholson Declaration as Exhibit A.4
14 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for
Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 4,
attached as Exhibit F to Applicant's Motions to Dismiss.
1
' Id. at p. 4.
16 Id. at p. 5.
17 See Nicholson Declaration at ,i 11; see also Minutes of Special Meeting of the Members and Board of
Directors of Alliance for South End, March 11 2006, attached to Nicholson Declaration as Exhibit A.5
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS-4
Y·\WP\ASEISJTE PLAN APPEAL\POSTHEARING BRIEFS\REPL Y TO POST I !EARING BRIEF 041707 FINAL.DOC
Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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including "all actions concerning appeals, litigation and settlement of claims."" The
members elected three members as directors of the corporation and elected those members
to the offices of President, First Vice President, and Second Vice President." The
members also "reiterated the importance of protecting the identities of ASE's Members
due to a pattern of intimidation and marginalization by the City."" As documented in
minutes from the March 11 meeting, the members considered a third set of Amended
Bylaws at that meeting: "It was suggested that the bylaws be amended so that it is
explicitly provided that the Members control the corporation. The Members and directors
reviewed a set of bylaws changes ... [ and] approved making the changes. "21 These
Amended Bylaws provide that "[tlhe Members shall control the direction of the
corporation to the extent permitted by law"; that "[t]he directors shall carry out the
direction of the members as expressed in such consultations [regarding major decisions
concerning appeals, litigation, or settlement of claims J 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, by the Members' actions at membership meetings
and by the Members' input in all consultations with directors.""
ASE and Nicholson filed their appeals of the Building Permit Approval for
Building 200 on March 13, 2007. J\SE's appeal was filed pursuant to specific instructions
from its members:
[The members J instructed the directors and their attorneys to
vigorously pursue all appeal and to continue to appeal
further approvals that follow what is considered to be an
18 Id.
19 Id.
zo Id.
21 Id
22 See Nicholson Declaration at 1 12; see also Amended Bylaws of Alliance for South End, March l l 2006,
attached to Nicholson Declaration as Exhibit A.6.
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illegal course of action. Specifically, the Members
instructed the directors and attorneys to file an appeal of the
Building Permit Approval for the structure designated as
"Building 200."23
The Amended Bylaws adopted by ASE's members on March 11, 2007, are still in effect
today. 24 The three members who were elected as ASE's directors and officers on March
11 remain in those positions."
A.
III. ARGUMENT
Brad Nicholson Has Individual Standing.
1. RMC Requirements for Standing in Appeals of Sta.If-Approved Building
Permits.
Building permits approved by staff are appealable to the Hearing Examiner as non-
environmental administrative decisions. See RMC 4-8-070.H(l)(a) (Hearing Examiner
Authority)." Under RMC 4-8-IOO.E(3)(b), such administrative decisions may be appealed
by any person "aggrieved":
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.
23 See Minutes of Special Meeting of the Members and Board of Directors of Alliance for South End, March
11 2006, attached to Nicholson Declaration as Exhibit A.5
24 Nicholson Declaration at 113.
25 Id.
26 See also RMC 4-8-080.G (Land Use Permit Procedures -Type I); RMC 4-8-080.H (Type I -Land Use
Permits); RMC 4-8-l lOE(l)(a) (Appeals to Examiner of Administrative Decisions and Environmental
Determinations).
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RMC 4-11-010 defines "aggrieved party" as follows:
AGGRIEVED PARTY: A person seeking to protect what
must be "arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question" and must allege an "injury in fact,"
i.e., that he or she will be specifically and perceptibly
harmed by the proposed action.
Thus, Renton has adopted a two-part test for standing in appeals of
administratively-approved building permits: (1) the appellant must seek to protect
interests that are "arguably within the zone of interests to be protected or regulated" by the
laws at issue; and (2) the appellant must "allege an 'injury in fact,' i.e., that he or she will
be specifically and perceptibly harmed by the proposed action. "27
It bears emphasis that the "zone of interests" test is qualified in the RMC with the
word "arguably." See RMC 4-11-010. Applying similar language in the Land Use Petition
Act, RCW 36. 70C, courts have held that the zone of interests test "is not meant to be
especially demanding." See, e.g., Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1
(2002). Similarly, the RMC requires appellants to "allege" injury in fact. See RMC 4-11-
010. It does not, as the Applicant suggests, require appellants to "demonstrate an injury in
fact."28 As the Examiner's decision aflirming Mr. Nicholson's standing to challenge the
Site Plan recognized, the appellant ultimately does have to present facts to demonstrate
the alleged errors, but where he has made the allegations, he should be given the
27 See RMC 4-11-010 (emphasis added); RMC 4-8-1 OO.E(3)(b) (emphasis added).
28 See Applicant's Motion to Dismiss Appeals of Building Penni! Approval for Buildings 101 and 102, p. 5
and Applicant's Motion to Dismiss Appeals of Building Pennit Approval for Building 200, p. 5 (emphasis
added).
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opportunity to do so. 29 The forum to determine whether appellants can demonstrate or
prove their allegations is in the hearing on the merits, not in a standing motion.
2. Nicholson is Aggrieved by the Building Permit Approvals.
The Examiner has previously found that Brad Nicholson has standing to challenge
both the Site Plan for The Landing and the adequacy of the Environmental Impact
Statement for the Boeing Comprehensive Plan Amendment and Rezone action. In denying
the Applicant's and City's motions to dismiss Nicholson's Site Plan Appeal, the Examiner
observed that "[i]t would be inconsistent to now find he did not have standing when the
actual development, the Site Plan in contention, was being reviewed. "30 This is doubly
true of City approvals for building permits, which authorize physical implementation of
the Site Plan through the construction of buildings. Just as Nicholson has standing to
appeal the Site Plan due to harms from nonconformities and impacts associated with The
Landing, he necessarily has standing to appeal building permit decisions that improperly
attempt to implement an illegal Site Plan while it is still on appeal.
(a) Zone of interests.
Nicholson and other ASE members are seeking to protect interests that are
squarely within the zone of interests to be protected and regulated by the laws at issue in
this appeal: the City's Site Development Plan Review (SDPR) regulations; the
International Building Code (!BC); the City's Permit Classification regulations; the State
29 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for
Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, attached
as Exhibit F to Applicant's Motions to Dismiss, p. 5.
30 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction Brought by Attorneys for
Alliance for Alliance for South End (ASE) and Brad Nicholson, an Individual, February 22, 2007, p. 5.
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Environmental Policy Act (SEPA); and Renton's SEPA ordinance. The City's review of
building permit applications is governed by each of these laws. Collectively, these laws
encompass all of the claims alleged by Nicholson and other ASE members in these
appeals.
SDPR regulations. Several provisions of the SDPR regulations (RMC 4-9-200)
link building permit review to the Site Plan review process. RMC 4-9-200.B(2) provides
that"[ n Jo building permit shall be issued for any use requiring Site Plan Review pursuant
to this Section until the Reviewing Official has approved, or approved with conditions, the
Site Plan application. All building permits issued shall be in compliance with the
approved Site Plan." Similarly, RMC 4-9-200.K provides that "[b ]uilding permits shall
not be issued until the appeal period for an approved site development plan has expired."
RMC 4-9-200.G(5) provides that "City departments and other jurisdictions or agencies
with an interest in the application" who do not comment on the Site Plan "reserve the right
to make later comments of a code compliance nature during building permit review. This
includes such requirements as exact dimensions, specifications or any other requirement
specifically detailed in the City Code."
These RMC provisions demonstrate an intent by City Council to subject building
permits to continuing review for compliance with the Site Plan itself as well as particular
Code requirements governing site design. Nicholson's and ASE's claims regarding illegal
setbacks, surface parking driveways on pedestrian-oriented streets, and street frontage
occupied by off-street parking and vehicular access involve precisely the type of "exact
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•
dimensions" and "specifications" that RMC 4-9-200.0(5) is intended to regulate
throughout the building permit review process.
International Building Code. Similarly, a building permit is void if issued in
violation of any provision of the RMC, even if those provisions were also addressed at an
earlier stage of project review. Section 105.4 of the IBC, adopted by reference in RMC 4-
5-050, provides as follows:
The issuance or granting of a permit shall not be construed
to be a permit for, or an approval of, any violation of any of
the provisions of this code or of any other ordinance of the
jurisdiction. Permits presuming to give authority to violate
or cancel the provisions of this code or other ordinances of
the jurisdiction shall not be valid.
The purpose of the IBC is to "establish the minimum requirements to safeguard the public
health, safety and general welfare through structural strength, means of egress facilities,
stability, sanitation, adequate light and ventilation, energy conservation, and safety to life
and property from fire and other hazards attributed to the built environment and to provide
safety to fire fighters and emergency responders during emergency episodes.""
Read together, these provisions of the me reveal a broad zone of interest in the
enforcement of"any of the provisions of this code or of any other ordinance of the
jurisdiction" during building permit review for the benefit of the general public, even if
those provisions or ordinances should have been satisfied during an earlier stage of
review. 32 By filing these appeals of the Building Permit Approvals, Nicholson and other
members of ASE are seeking to vindicate their interests in the enforcement of maximum
31 !BC, Section 101.3.
32 See !BC, Section 105.4 (emphasis added).
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setbacks, pedestrian-friendly design regulations, and adequate Site Plan and
environmental review for the benefit of their community.33
SEPA and Renton's SEPA ordinance. Nicholson and ASE are seeking to protect
interests that are unquestionably regulated and protected by SEP A. The Applicant argues
that "there is no allegation or showing that the stormwater or traffic impacts would be
altered with or without the Building Permit Approval[s]."34 To the contrary, proper
processing of the Building Permit Approvals would have resulted in a public hearing and
an opportunity to address unanalyzed impacts. Additionally, each structure that is built
using approvals piggy-backed on the City's flawed and outdated environmental analysis
will contribute incrementally to unmitigated stormwater and traffic impacts."
Moreover, RMC 4-9-070, Renton's SEPA ordinance, declares that "it is the
continuing responsibility of the City to use all practicable means, consistent with other
essential considerations of State and City policies, to improve and coordinate plans,
functions, programs and resources" with goals of assuring "safe, healthful, productive and
aesthetically and culturally pleasing surroundings" and attaining "the widest range of
beneficial uses of the environment without degradation, risk to health or safety, or other
33 See Nicholson Declaration at 1 4.
34 See Motion to Dismiss Appeals of Building Permit Approval for Buildings 101 and 102, p. 10; Motion to
Dismiss Appeals of Building Permit Approval for Building 200, p. 10.
35 To the extent that Buildings 100, 101 and 200 can be seen as effectively committing the City to
development of the complete project (as currently designed), the Applicant and City should not be able to
evade scrutiny of their inadequate review of the whole project by arguing that one building won't have an
impact. The Applicant's and City's arguments suggest an improper piecemeal approach to SEPA review.
See Batchelder v. City a/Seattle, 77 Wn.App. 154, 160,890 P.2d 25, review denied, 127 Wn.2d 1022
( 1995) (finding that "piecemealing" occurs where the local authority "allow[ s] one portion of [a] project to
proceed while the other portion of the project awaits approval"); see also Merkel v. Port of Brownsville, 8
Wn. App. 844,509 P.2d 390 (1973).
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undesirable and unintended consequences," among other goals. RMC 4-9-070.A
(emphasis added). Nicholson's and ASE's allegations regarding The Landing's
automobile-centric design fall within the zone of interest of assuring safe and aesthetically
pleasing surroundings. If the Applicant had designed Buildings 100, 101 and 200 in
accordance with the pedestrian-oriented design regulations adopted by the City, there
would be more foot traffic and less car traffic through and around the site. 36 The Landing
would be a safer and more pleasant development for citizens like Brad Nicholson."
Permit Classification regulations. Nicholson's and ASE's claims of procedural
injury fall within the zone of interests for the City's Permit Classification regulations
(RMC 4-8-080). The purpose of the Permit Classification regulations is to "outline the
procedure and time requirements for the various development applications reviewed by
the City." RMC 4-8-080.A. Nicholson and ASE have alleged that the City's processing of
building permits for The Landing violate RMC 4-8-080 because the Examiner, not the
Director, was the appropriate official to review and take action on the permits. The City's
improper processing not only denied Nicholson and other ASE members the opportunity
to have the building permits reviewed by the Examiner, but also deprived them of the
opportunity for a public hearing." As an active citizen of Renton, Nicholson is seeking to
protect his interest in this site as well as his interest in the integrity of the City's permit
review process. 39
36 See Nicholson Declaration at 1[ 4.
37 Id.
38 Nicholson Declaration at 1[ 3.
'' Id.
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(b) Injury in fact.
Washington courts routinely grant standing to appellants alleging specific harms
resulting from physical proximity to a development site. Suquamish Indian Tribe v. Kitsap
County, 92 Wn.App. 816, 829-30, 965 P.2d 636 (1998). The courts have granted standing
in building permit appeals alleging such harms. See, e.g., Asche v. Bloomquist, 132
Wn.App. 784, 133 P.3d 475 (2006) (finding that appellants who "argued that the building
permit was erroneous because the County misapplied the zoning ordinance and
miscalculated the maximum allowable height of the structure" had standing to appeal the
permit); see also Biermann v. City a/Spokane, 90 Wn.App. 816,960 P.2d 434 (1998).
Even in other states with more stringent standing requirements, courts have recognized
that landowners living in relative proximity to a large development have standing to
challenge the development by filing building permit appeals. See, e,g, Summit Mall
Company, LLC v. Lemond, 355 Ark. 190, 132 S.W.3d 725 (2003) (finding that "the
landowners had standing to file suit due to the fact that this case deals with the City's
largest single commercial development which has the potential to affect the entire ...
area").
Like the appellants in Suquamish Indian Tribe, Asche, Biermann, and Summit Mall
Company, Brad Nicholson and other ASE members have alleged multiple injuries arising
from proximity to the structures authorized to be built by the Building Permit Approvals.
In particular, they will be injured by departures from development standards (such as
maximum setbacks) and design regulations (such as regulations prohibiting surface
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parking driveways on pedestrian-oriented streets) that the City has approved for Buildings
I 00, IO 1 and 200.40 As discussed above, they are also injured by the traffic and
stormwater impacts associated with each of these buildings." The Hearing Examiner has
already held that these allegations of harm give Bran Nicholson standing (and thus an
opportunity to prove the allegations in a hearing on the merits). Additionally, Nicholson
and other ASE members are further injured by the City's decision to issue building
permits that implement the challenged Site Plan while that appeal is still pending."
These allegations of specific and perceptible harm resulting from the construction
of Buildings 100, 101 and 200 are more than adequate to confer standing. Courts have
granted standing even when alleged impacts are "possible, not necessary, impacts" of the
challenged decision." See Leavitt v. Jefferson County, 74 Wn.App. 668, 875 P.2d 681
(1994) (granting standing to appellant who alleged possible impacts from a development
code that allowed residential densities of up to five dwelling units per acre on 500 acres
located uphill from her property). Here, there can be no doubt that the construction of
Buildings 100, 101 and 200, as currently designed, will result in a less pedestrian-friendly
development that what is required by the Code. 43 (The Applicant and City have abandoned
any arguments that the Site Plan actually complies with the Code, relying instead on the
Director's purported authority to waive Code requirements through various
"modification" mechanisms.) The construction activities associated with these buildings
40 Nicholson Declaration at ,r 4.
41 Id.
42 Id.
43 See id.
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have already resulted in commuting delays for Nicholson due to his inability to use a route
that takes him along Park Avenue, which runs through The Landing site.44 Once the
buildings are occupied and open for business, they will immediately generate increased
traffic along each of the roads that Nicholson uses to commute and travel generally in his
community. Nicholson will continue to suffer harm from unanalyzed traffic and
stormwater impacts for years to come.41
The Applicant misconstrues Appellants' arguments about traffic and stormwater
impacts from the Building Permit Approvals. The Applicant argues that "there is no
allegation or showing that stormwater and traffic impacts would be altered with or without
the Building Permit Approval[s]" and that "'Appellants do not allege that there should be
no building at the site of[Buildings 100, 101 and 200].""Nicholson and ASE have
consistently argued that the City's analysis of traffic and stormwater impacts was
inadequate. As discussed above, these impacts may be considered not only during the
City's initial SEPA review but also at the building permit stage, when the Master Plan and
Site Plan are implemented on the ground. Indeed, the Building Permit Approvals represent
the City's last chance to address trai1ic and stormwater impacts associated with Buildings
100, 101 and 200. Additionally, Appellants have alleged that automobile-centric design
will result in additional traffic impacts. In short, while it is true that Appellants have not
alleged that there should be no building at the site of Buildings 100, 101 and 200,
44 Id.
45 Id.
46 See Applicant's Motion to Dismiss Appeals of Building Pennit Approval for Buildings 101 and 102, pp.
9-10; Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 10.
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Appellants have alleged that the City should have adequate analyzed impacts associated
with those buildings and that Code violations will exacerbate traffic problems. These
allegations are sufficient to grant standing.
B. ASE Has Associational Standing.
]. Requirements/or Associational Standing.
Because the RMC does not directly address associational standing, Washington
case law provides the relevant rules. Associational standing rules are based on practical
considerations, such as whether a citizen alleging injury from government actions is
"unable to afford the costs of challenging the action himself' and whether "[a) class suit
may be too cumbersome." Save a Valuable Environment (SAVE) v. City of Bothell, 89
Wn.2d 862, 867, 576 P .2d 40 I ( 1979). In such circumstances, "[ a )n association or non-
profit corporation of persons with a common interest can then be the simplest vehicle for
undertaking the task." Id.
Under Washington case law, no particular structure is required of an organization
before it can have associational standing, as long as harm to a member is alleged. In
Suquamish Indian Tribe, the Court of Appeals summarily rejected the argument that a
citizens' group lacked standing "because it lacks the requisite structure":
The Screens raise a preliminary issue. They contend that
NKCC does not have standing as an organization because it
lacks the requisite structure. But the cases they cite to
support their contention that a particular structure is
required do not support their argument. Rather, they hold
that an organization has standing only when at least one of
its members has standing as an individual. Thus, the inquiry
here is whether the Screens have shown that there 1s no
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genuine dispute regarding material facts as to whether an
individual NKCC member has standing.
92 Wn.App. at 830 (emphasis added). The Washington Supreme Court disfavors
hypertechnical applications of associational standing rules. See International Ass'n of
Firefighters, Local 1789 v. Spokane, 146 Wn.2d 207,216, 45 P.3d 186 (2002) ("[W]e see
little sense in an ironclad rule that has the effect of denying relief to members of an
association based upon an overly technical application of the standing rules"). The
Supreme Court has also noted with approval that federal courts do not concern themselves
with the form of an organization:
It is interesting to note that federal cases do not distinguish
between non-profit corporations and unincorporated
associations in determining the standing question. See
Concerned About Trident v. Schlesinger, 400 F.Supp. 454
(D.D.C.1975). This lack of concern over the precise form of
organization points to the courts' central concern that a
specific and perceptible injury to a member of the
organization be alleged.
SAVE, 89 Wn.2d at 867 (emphasis added). Accordingly, the courts have consistently held
that a citizens' group or other organization has standing to challenge land use decisions
"as long as one member has standing to do so." East Gig Harbor Imp. Ass'n v. Pierce
County, 106 Wn.2d 707,710,724 P.2d 1009 (1986) (emphasis added), citing SAVE, 89
Wn.2d at 867; see also Suquamish Indian Tribe, 92 Wn.App. 816,830,965 P.2d 636
( citing East Gig Harbor Imp. Ass 'n and SA VE for proposition that "an organization has
standing only when at least one of its members has standing as an individual").
II
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2. ASE's members have standing to sue in their own right.
As discussed above, Brad Nicholson has standing to bring these appeals. ASE has
other members who are Renton residents, are similarly situated to Nicholson, and are
similarly aggrieved by the Director's decisions.47 These other members have standing for
the same reasons that Nicholson has standing. Washington law requires only that "one
member" of an organization have standing in order to confer associational standing on the
organization. East Gig Harbor imp. Ass'n, 106 Wn.2d at 710. Because Brad Nicholson
and other ASE members have standing to sue in their own right, ASE has associational
standing to sue on their behalf.
Appellants continue to object to the notion that associational standing requires that
a particular measure of "control" by members must be provided in an organization's
bylaws. This proposition finds no support in Washington law and has been rejected by the
courts. See Suquamish Indian Tribe, 92 Wn.App. at 830; SAVE, 89 Wn.2d at 867. The
Applicant's and City's arguments suggest that, in order to establish associational standing,
all members must have direct control over the daily activities of the corporation. Such an
interpretation of standing rules would defeat the purpose of having a membership
organization that can represent the interests of its members without requiring them to be
involved in the governance of the organization. It would impose an unnecessary burden on
members who would prefer to stay out of governance roles. For larger organizations like
the Sierra Club, it would be totally unworkable. The Applicant's and City's continued
25 47 See Nicholson Declaration at ,r 5.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS-IS
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nitpicking over the bylaws and seemingly endless litigation over exactly what bylaws are
necessary for associational standing illustrates the problem with their approach, and why
the courts have rejected it. Appellants ask the Examiner to now reject this approach and
follow settled Washington case law holding that, regardless of its structure, an
organization has standing if at least one of its members does. See Suquamish Indian Tribe,
92 Wn.App. at 830 (rejecting argument about structure and finding that "the inquiry here
is ... whether an individual NKCC member has standing"); see also East Gig Harbor
Imp. Ass'n, 106 Wn.2d at 710.
Nevertheless, ASE has attempted to address the Examiner's concerns about the
corporation by adopting Amended Bylaws that provide for control by the members. These
efforts illustrate that the Examiner's concerns about a rogue "shell" organization have not
materialized. Instead, the record demonstrates that ASE has consistently represented the
interests of its members. As discussed above, ASE's purpose is to "advance its members'
interest in the environment, land use planning, and governmental fiscal integrity of the
City of Renton."" ASE has faithfully adhered to this purpose since its incorporation in
2006 by challenging City actions after consultation with members. ASE's members were
consulted before either of the instant appeals were filed and no objections were raised."
Moreover, ASE's members have now ratified all past actions of the corporation, including
"all actions concerning appeals, litigation and settlement of claims." 50 This action by the
48 See ASE's Articles of Amendment, anached (with Consent to Action of Directors in Lieu of Meeting) as
Exhibit A. l to Nicholson Declaration.
49 See Nicholson Declaration at ,r,r 9, 11.
50 See Nicholson Declaration at ,r 11.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
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members confirms that ASE has always and continues to be directed by the stated
interests of its members.
The record also demonstrates that ASE's members absolutely control the
corporation and this litigation, although Appellants believe this inquiry is inappropriate.
ASE's membership has not dissolved, as the Examiner has speculated might happen. To
the contrary, all but one of ASE's members are now directors and officers of the
corporation. " Members have the right to vote on the election of directors, on any
increases or decreases in the number of directors, on the removal of directors at any time
with or without cause or notice, on all amendments to ASE's Bylaws, all amendments to
the corporation's Articles of Incorporation, and on "any other matters that may properly
be presented to the Members for a vote.""
Members also have the right to determine the qualification of prospective members
and to elect new members and the right to vote on any contemplated termination of
membership; membership in the corporation may be terminated only by an affirmative
vote of the members." ASE's Amended Bylaws expressly provide that "[t]he Members
shall control the direction of the corporation to the extent permitted by law"; that "[t]he
directors shall carry out the direction of the members as expressed in such consultations
[regarding major decisions concerning appeals, litigation, or settlement of claims] to the
extent permitted by law"; and that "[i]t is the intention of the corporation and its Members
51 See Nicholson Declaration at~ 11.
52 See Nicholson Declaration at~ 8.
53 See Nicholson Declaration at~ 10.
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CITY'S MOTIONS TO DISMISS BUILDING PERMIT
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that its actions be directed, to the extent permitted by law, by the Members' actions at
membership meetings and by the Members' input in all consultations with directors.""
The chronology of ASE's bylaws amendments demonstrates not only a
corporation that serves its members' interests and is controlled by its members, but also a
good-faith effort by ASE to address the Examiner's concerns. For these reasons, ASE has
standing to bring these appeals. The Applicant's and City's motions should be denied.
C. The Building Permit Appeals Are Not Collateral Attacks.
The Applicant argues that the appeals of the Building Permit Approvals are
impermissible collateral attacks on prior approvals for The Landing such as the Site Plan
and Master Plan." This argument is factually inaccurate and relies on a
mischaracterization of case law regarding collateral attacks, including Habitat Watch v.
Skagit County, 155 Wn.2d 397, 410-411, 120 P.3d 56 (2005).
The Applicant incorrectly asserts that "each of the purported injuries relates back
to prior approvals for The Landing, including the master plan and site plan approvals.""
In addition to alleging injuries related to the Master Plan and Site Plan Approvals (which
are implemented by the Building Permit Approvals), Appellants allege injuries arising
directly from the Building Permit Approvals. See Section III.A.2, supra. In particular,
54 See Nicholson Declaration at ,i 12.
55 See Applicant's Motion to Dismiss Appeals of Building Penni! Approval for Buildings IO I and I 02, pp.
8-10; Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, pp. 9-10
(citing Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11, 120 P.3d 56 (2005)).
56 See Applicant's Motion to Dismiss Appeals of Building Pennit Approval for Buildings IOI and 102, p. 9;
Applicant's Motion to Dismiss Appeals of Building Permit Approval for Building 200, p. 9.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
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Appellants allege injuries arising from the City's issuance of building permits for The
Landing while the Site Plan appeal is still pending. Id.
Moreover, Appellants' claims are not collateral attacks as described in Habitat
Watch and cases cited therein. See Habitat Watch, 155 Wn.2d at 410 (citing Wenatchee
Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 181, 4 P.3d 123 (2000)). These
cases involve appeals that were filed after the LUPA appeal period for challenging the
underlying decision had passed without appeal. See Habitat Watch, 155 Wn.2d at 410-11
("Because appeal of the special use permit and its extensions are time barred under LUPA,
Habitat Watch cannot collaterally attack them through its challenge to the grading
permit"); Wenatchee Sportsmen, 141 Wn.2d at 181 ("WSA's failure to file a timely LUPA
challenge to the rezone bars it from collaterally challenging the validity of the rezone in
this action opposing the project application").
Here, the underlying decisions (the Site Plan and Master Plan Approvals) have
been appealed by Appellants, and Appellants have also appealed the building permits that
implement the underlying decisions. Habitat Watch and Wenatchee Sportsmen also did
not involve the particular provisions of the SDPR regulations, the International Building
Code, the Permit Classification regulations, SEPA, or Renton's SEPA ordinance at issue
in these appeals. As discussed above, these provisions provide for redundant review of
Code compliance and analysis of impacts that may have been missed during the City's
review process for earlier approvals. See Section IILA.2(a) supra.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
APPEALS-22
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For these reasons, the Applicant's arguments about "collateral attacks" are without
merit and should be rejected.
D. Building Permit Approvals are Explicitly Appealable Under the RMC.
The City argues that "the issuance of a building permit, following prior appeals, is
a mere ministerial act and not subject to appeal."" In support of this argument, the City
cites a single case with a single, one-sentence reference to a "ministerial act" in the
context of a disability payment by the Department of Labor and Industries. See Perry v.
Department of Labor and Industries, 48 Wn.2d 205, 209-210, 292 P.2d 366 (1956) ('The
payment of the 'additional twenty per cent unspecified disability' was a mere ministerial
act and the department had no right, on its own motion to reopen the claim in the absence
of a showing of aggravation, diminution, or termination within the purview of RCW
51.32.160"). This case has no relevance in the context of an administrative land use appeal
that is explicitly authorized by a particular section of the RMC.
Under the RMC, the Building Permit Approvals are not ministerial acts; they are
appealable to the Hearing Examiner as non-environmental administrative decisions. See
RMC 4-8-070.H(l)(a) (Hearing Examiner Authority); RMC 4-8-080.G (Land Use Permit
Procedures -Type I); RMC 4-8-080.H (Type I -Land Use Permits); RMC 4-8-
110.E(l)(a) (Appeals to Examiner of Administrative Decisions and Environmental
Determinations)." It defies logic to argue that a decision made appealable by the RMC
57 See City's Motion to Dismiss for Lack of Standing, p. 2.
"The appeal procedure for building permits under the Renton Code depends on the permit type. The
building permits for The Landing could arguably be classified as Type I, Type III, or Type VI. See RMC 4-
8-080.G. Appellants have argued that the City followed the wrong process by doing so rather than treating
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT
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should be dismissed based on a fleeting reference to a "ministerial act" in a 1946 case
about disability payments.
Even if the Building Permit Approvals are considered ministerial acts, they are still
subject to appeal. Numerous cases hold that building permits are appealable under LUPA
and the City cites no authority whatsoever suggesting that they are not appealable." Since
LUPA requires exhaustion of administrative remedies and the RMC expressly makes
building permits appealable, it makes no sense to argue that they cannot be appealed -
regardless of how they might be categorized. The City's argument is without merit.
IV. CONCLUSION
For the reasons presented herein, Appellants respectfully request that the Examiner
deny the Applicant's and City's motions to dismiss Appellants' appeals of the Building
Permit Approvals.
DATED this
--{ V\ ~ day of May, 2007.
BUCK&G
By~~~:.......:~~~__\c!!:_:'.:::::::==:==-i--
Peter L. Buck, WSBA #05060
Attorneys for Brad Nicholson and Alliance
for the South End
them as Type VI permits, which are reviewed by the Hearing Examiner (with a public hearing) and
appealable to the City Council. However, because the building permits were reviewed by staff, and not the
Hearing Examiner, the City has treated them as Type I or Type III permits and they are appealable as such.
59 See. e.g.. Asche, 132 Wn.App. 784.
APPELLANTS' RESPONSE TO APPLICANT'S AND
CITY'S MOTIONS TO DISMISS BUILDING PERMIT Buck@Gordon LLP
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6 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
7 In the Matter of the Appeals of
8 Alliance for South End (ASE) and
Brad Nicholson re:
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The Building Permit Application Approvals
10 for Buildings 101, 102, and 200
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B060540, B060688
DECLARATION OF BRAD
NICHOLSON
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I, Brad Nicholson, do hereby declare as follows:
I. I was born in Renton 4 7 years ago and have lived in Renton my whole life.
2. I currently reside in and own my home at 2811 Dayton Avenue Northeast in
Renton, Washington, less than two miles from the site of The Landing project. I am
employed by Boeing as a machinist and work at Boeing's facility located at 7755 East
Marginal Way South. My route of travel between home and work often takes me along
streets directly adjacent to and through The Landing site. I plan to shop and utilize
pedestrian amenities on the site after construction is completed.
3. I am injured by the Building Permit Approvals for Buildings I 00, 101 and 200
in a number of ways. I am harmed by the City's improper processing of the Approvals,
including issuance of building permits that implement a challenged Site Plan while that
appeal is still pending, failure to refer the Approvals to the Hearing Examiner for a public
hearing and decision (on top of the City's failure to hold a public hearing before the
Hearing Examiner regarding this or any other decision approving The Landing project). If
the City had held a public hearing, I would have voiced my concerns about the City's
failure to mitigate impacts such as traffic and stormwater. As an active citizen of Renton, I
am seeking to protect my interest in this site as well as my interest in the integrity of the
City's permit review process. I am already suffering commuting delays due to my
inability to use a route that takes me along Park Avenue, which runs through The Landing
site. Once these buildings are occupied and open for business, they will immediately
generate increased traffic along each of the roads that I use to commute and travel
generally in my community. I will continue to suffer harm from unanalyzed traffic and
stormwater impacts for years to come.
ECLARATION OF BRAD NICHOLSON -I
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4. I am further injured by the City's failure to enforce development regulations
and design guidelines intended to implement a pedestrian-friendly, urban village concept.
2 In particular, I am injured by departures from development standards (such as maximum
setbacks) and design regulations (such as regulations prohibiting surface parking
3 driveways on pedestrian-oriented streets) that the City has approved for Buildings 100,
IO I and 200. If these structures are built as currently designed, I will suffer harms
4 including the inappropriate presence of a suburban-style development in an urban zone,
decreased property values, damage to the appearance of the City, and failure to achieve
5 the required employment base. If the Applicant had designed these buildings in
accordance with the pedestrian-oriented design regulations adopted by the City (instead of
6 designing a car-friendly, suburban-style strip mall), there would be more foot traffic and
less car traffic through and around the site. The Landing would be a safer and more
7 pleasant development for citizens like myself. By filing these appeals of the Building
Permit Approvals, I am seeking to vindicate my interest in the enforcement of maximum
8 setbacks, pedestrian-friendly design regulations, and adequate site plan and environmental
review for the benefit of my community.
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5. ASE is a Washington non-profit corporation whose purpose is to "advance its
IO members' interest in the environment, land use planning, and governmental fiscal integrity
of the City of Renton." See ASE's Articles of Amendment, a true and accurate copy of
11 which is attached hereto (with Consent to Action of Directors in Lieu of Meeting) as
Exhibit A. I. ASE' s membership is comprised of myself and several other Renton citizens
12 who are similarly aggrieved by The Landing. ASE's other members are Renton residents,
are similarly situated to myself, and are similarly aggrieved by the Director's decisions
13 regarding The Landing.
14 6. In 2003 and 2004, during my efforts to challenge earlier City actions affecting
the site of The Landing project as a pro se litigant, I found myself outgunned by the
15 resources available to the City and other project proponents. In 2006, I personally
encouraged the formation of a nonprofit to represent citizens like myself who were
16 concerned about The Landing project in particular and the integrity of the City's land use
planning process in general. This resulted in the incorporation of ASE on May 19, 2006.
17 ASE has followed the directions of its members since that date.
18 7. In response to the Hearing Examiner's concerns about the voting rights of
members as provided in ASE's bylaws, ASE has adopted a series of Amended Bylaws in
19 successive attempts to provide the appropriate level of"control" by its members.
20 8. On December 10, 2006, ASE's directors adopted Amended Bylaws that
granted extensive voting rights to the members, including the election of directors, any
21 increases or decreases in the number of directors, the removal of directors at any time with
or without cause or notice, all amendments to ASE's Bylaws, all amendments to the
22 corporation's Articles of Incorporation, and "any other matters that may properly be
presented to the Members for a vote." See Amended Bylaws of Alliance for South End,
23 December 10, 2006, a true and accurate copy of which is attached hereto as Exhibit A.2
24 9. On December 11, 2006, appeals of the Building Permit Approvals for
Buildings 100 and 102 were filed on my behalf and on behalf of ASE. ASE's members
25 were consulted before the appeals were filed and no objections were raised. See Minutes
ECLARA TION OF BRAD NICHOLSON -2
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1 of Special Meeting of Board of Directors of Alliance for South End, December 10, 2006,
a true and accurate copy of which is attached hereto as Exhibit A.3.
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10. On February 7, 2007, ASE's members exercised their right to approve
3 amendments to ASE's Bylaws by granting additional rights to ASE's members in the
Bylaws, including the right to determine the qualification of prospective members and to
4 elect new members; the right to vote on any contemplated termination of membership; and
the right to remove directors "with or without cause." See Amended Bylaws of Alliance
5 for South End, February 7, 2007, 2006, a true and accurate copy of which is attached
hereto as Exhibit A.4.
6
l l. On March 11, 2007, a special meeting of the members and directors of ASE
7 was held at a member's house in Renton. See Minutes of Special Meeting of the Members
and Board of Directors of Alliance for South End, March 11 2006, a true and accurate
8 copy of which is attached hereto as Exhibit A.5. At that meeting, the members were
briefed on the status of ASE's appeals and standing issues in the appeals, discussed
9 members' goals regarding The Landing project, and ratified all past actions of the
members and directors, including "all actions concerning appeals, litigation and settlement
10 of claims." The members elected three members as directors of the corporation and
elected those members to the offices of President, First Vice President, and Second Vice
11 President. The members "reiterated the importance of protecting the identities of ASE's
Members due to a pattern of intimidation and marginalization by the City." They also
12 "instructed the directors and attorneys to file an appeal of the Building Permit Approval
for the structure designated as 'Building 200."'
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12. As documented in minutes from the March 11 meeting, the members
14 considered a third set of Amended Bylaws at that meeting: "It was suggested that the
bylaws be amended so that it is explicitly provided that the Members control the
15 corporation. The Members and directors reviewed a set of bylaws changes ... [ and]
approved making the changes." These Amended Bylaws provide that "[t]he Members
16 shall control the direction of the corporation to the extent permitted by law"; that "[t]he
directors shall carry out the direction of the members as expressed in such consultations
17 [regarding major decisions concerning appeals, litigation, or settlement of claims] to the
extent permitted by law"; and that "[i]t is the intention of the corporation and its Members
18 that its actions be directed, to the extent permitted by law, by the Members' actions at
membership meetings and by the Members' input in all consultations with directors." See
19 Amended Bylaws of Alliance for South End, March 11 2006, a true and accurate copy of
which is attached hereto as Exhibit A.6.
20
13. The Amended Bylaws adopted by ASE's members on March 11, 2007, are still
21 in effect today. The three members who were elected as ASE's directors and officers on
March 11 remain in those positions.
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14. I have personal knowledge of the facts stated in this declaration.
I declare under the penalty of perjury under the laws of the State of Washington
24 that the foregoing is true and correct.
25 II
ECLARA TION OF BRAD NICHOLSON -3
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DATED this .:3_ day of May, 2007.
ECLARATION OF BRAD NICHOLSON -4 Buck{" Gordon LL>•
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CONSENT TO ACTION OF DIRECTORS IN LIEU OF MEETING
OF
ALLIANCE FOR SOUTH END
The undersigned, being the sole director of the Alliance for South End, acting pursuant to
RCW 24.03.465 without the necessity of a formal meeting, hereby adopts the following
resolutions and hereby consents to the taking of the actions herein set forth:
WHEREAS, the Amendment to the Articles of Incorporation of Alliance for South End
were filed with the Secretary of State's Office and failed to reflect that at the time of filing, the
corporation had a member, the Board of Directors wishes to correct the filed Articles of
Amendment to reflect that there was a non-voting member;
WHEREAS, the Board of Directors has considered such correction to the amendments
and restatements and has determined that such correction to the amendments and restatements
would be in the best interests of Alliance for South End;
NOW, THEREFORE, it is hereby resolved as follows:
RESOLVED, that the correction to the amendments to the Articles of
Incorporation of Alliance for South End (Articles of Amendment and
Articles of Restatement of Articles of Incorporation), as set forth in the
attached Exhibit A (incorporated herein by this reference) are hereby
adopted for filing with the Washington Secretary of State; and
FURTHER RESOLVED, that Peter L. Buck and the officers of this
Corporation, or any of them, are hereby authorized and directed to take all
necessary action to effect the correction of the amendments of the Articles
oflncorporation, including filing corrected Articles of Amendment and
Articles of Restatement of Articles of Incorporation, with the Washington
Secretary of State.
FURTHER RESOLVED, that all actions previously taken by the directors,
officers, agents and other representatives of the corporation, which have
been disclosed to the board of directors in accordance with these
resolutions and which otherwise are consistent with the purposes and
intent of these resolutions, are hereby ratified, confirmed, and approved.
Dated as of the i.f'day of 4, 200 ..6_.
SEA 1838286vl 50665-10
Seattle
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EXHIBIT A.I
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ARTICLES OF AMENDMENT
WASHINGTON NONPROFIT CORPORATION ACT -24.03
Pursuant to the provisions ofRCW 24.03 of the Washington Nonprofit Corporation Act,
the undersigned adopts the following Articles of Amendment to the Articles of Incorporation:
I. The name of record ofihe corporation is Alliance for South End
2. The corporation's UBI number is 602-615-462.
3. The person to contact about this filing is Jason A. Farber and his daytime
telephone number is (206) 628-7657.
4. The articles of incorporation of the corporation are hereby amended in their
entirety as set forth on the attached Exhibit A, which is incorporated herein by this reference.
5. There was a member as of May 25, 2006, but he did not have the right to vote on
an amendment to the articles of incorporation of the corporation. The amendment was instead
approved by majority vote of directors in office at a meeting of the board held on May 25, 2006.
Dated May 25, 2006.
FILING FEE $20
SEA U13236v2 50665-10
Seallle
Peter L Buck, Director, President
EXIllBIT A
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
ALLIANCE FOR SOUTH END
The undersigned, in order to funn a nonprofit corporation under Chapter 24.03 of the
Revised Code of Washington, hereby signs aod verifies the following Articles of Incorporation:
ARTICLE I
NAME
The name of the corporation is Alliaoce for South End.
ARTICLE II
MEMBERSHIP
Qualification for memberahip in the corporation shall be set out in the corporation's
Bylaws.
ARTICLE ill
DURATION
The duration of1he corporation shall be perpetual.
ARTICLE IV
PURPOSES AND POWERS
Section 4.1 Purposes. To advaoce its members' interests in the environment, laod use
pl9J!l)ing, and govemmeotal and fiscal integrity.
Section 4.2 Powers. In general, and subject to such I.imitations and conditions as are
or may be prescribed by law, or in the corporation's Articles oflncorpomtion or Bylaws, 1he
corporation shall have all powers which now or hereafter are conferred by law upon a
corporation organized for the purpose set forth above, or are necessary or incidental to the,-
powers so conferred, or are conducive to the attainment of the corporation's purpose.
ARTICLEV
DIRECTORS
The management of the corporation will be vested in a board of at least one director. The
number, qnalitications, terms ofoflice, manner of election, time and place of meeting, and
povm'S and doties of directors shnll be prescribed by the Bylaws of the corporation.
SEA 1813242v2B8-8t
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ARTICLE VI
LIMITATION OF DIRECTORS' LIABILITY
A director shall have no liability to the corporation for monetary damages for conduct as
a director, except for acts or omissions that involve intentional misconduct by the director, or a
knowing violation of law by the director, or for any transaction from which the director will
personally receive a benefit in money, property or services to which the director is not legally
entitled. If the Washington Nonprofit Corporation Act is hercaftel' amended to authorize
COlJlOrale action further eliminating or limiting the personal liability of directors, then the
liability of a directnr shall be eliminated or limited to the full extent pennitted by the Washington
Nonprofit Corporation Act, as so amended. Any repeal or modification of this Article shall not
adversely affect any right or protection of a director of the cm:poration existing at the time of
such repeal or 1I1Ddillcation for or with respect to an act or omission of such director occurring
prior to such repeal or modification.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Right to Indemnification of Directon and Officers. Each person who
was, or is threatened to be made a party to or is otherwise involved fmcluding, without
limitation, as a witness) in any actnal or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a director
or officer of the corporation or, while a director or officer, he or she is or was serving at the
request of the corporation as a director, trustee, officer, employee or agent of another cm:poration
or of a partnership, joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, trustee, officer, employee or agent or in any other capacity while serving
as a director, trustee, officer, employee or agent, shall be i.ndemDilied and held hamtless by the
corpoaition, to 1he full extent permitted by applicable law as then in elfect, against all expense,
liability and loss (mcluding atromeys' fees, judgments, fines, BRISA excise taxes or penalties
and arnom1ts to be paid in settlement) actually and reasonably incurred or suffered by such
person in connection therewith, and such indemnification shall continue as to a person who bas
ceased to be a director, trustee, officer, employee or agent and shall inure to the benefit of bis or
her l)eirs, executors and administrators; provided, however, that except as provided in
Section 7.2 of this Article with respect to proceedings seeking solely to enforce rights to
indemnification, the corporatipn shall indemnify any such person seeking indemnification in
connection with a proceeding ( or part thereof) initiated by such person only if such proced<ling
(or part thereof) was authorized by the board of directors of the corporation. The right to
indemilificlltion conferred in this Section 7.1 shall be a contract right and shall include the right
to be paid by the corpomtion the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made only upon delivery to the corporation of an
m1dertaking, by or on behalf of such director or officer, to repay all amounts so advanced ifit
shall ultimately be detennined that such director or officer is not entitled to be indemnified m1der
this Section 7 .1 or otherwise.
SEA 11132.4lv2 as-ea
2
Section 7.2 Right of Claimant to Bring Suit. If a claim for which indemnification is
required under Section 7. I of this Article is not paid in full by the corporation within sixty (60)
days after a written claim has been received by the corporation, except in the case of a cbrim for
expenses incurred in defending a proceeding in advance of its final disposition, in which case the
applicable period shall be twenty (20) days, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, to the extent successful in
whole or in pert, the claimant shall be entitled to be paid alBo the expense of prosecuting such
claim. The claimant shall be presumed to be entitled to indemnification under this Article upon
submission of a written claim (and, in an action brought to enforce a claim for expenses incwred
in defending any proceeding in advance of its final disposition, where the required undertaking
has been tendered to the corporation), and thereafter the corporation shall have the burden of
proof to overcome the presumption that the claimant is so entitled. Neither the failure of the
corporation (mclnding its board of directors or independent legal counsel) to have made a
determination prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the circlllll3taDCes nor an
actual determination by the corporation (mcluding its board of directors or independent legal
counsel) that the claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses shall be a defense to the action or create a presumption that the
claimunt is not so entitled.
Section 7.3 Noneiclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final disposition conferred in
this Article shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Articles of Incorporation, Bylaws, agreement, or vote
of disinterested directors or otherwise.
Section 7 .4 Insnrance, Contracts and Funding. The corporation may maintain
insurance at its expense, to protect itself and any director, trustee, officer, employee or agent of
the corporation or another corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or Joss, whether or not the corporation would have the power to indemnify
such person against such expense, liability or loss under RCW 24.03.043 of the Washington
Nonprofit Corporation Act and RCW 23B.08.510 of the Washington Busuiess Corporation Act,
or any successor provisions. The corporation may enter into con!raets with any director or
offiQCr of the corporation in furtherance of the provisions of this Article and may create a trust
funcI; grant a security interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect indemnification as •
provided in this Article. '
Section 7.5 Indemnification of Employees and Agents of !be Corporation. The
corporation may, by action of its board of directors from time to time, provide indemnification
and pay exp"'!ses in advance of the final disposition of a proceeding to employees and agents of
the corporation with the same scope and effect as the provisions of this Article with respect to
the indemnification and advancement of expenses of directors and officers of the corporation or
pursuant to rights granted pursuant to, or provided by, the Washington Business Corporation Act,
as applied to nonprofit corporations, or otherwise.
SEA 1813242v2 8&-88
1
ARTICLEVID
AMENDMENT OF BYLAWS
. The authority to make, alter, amend or repeal Bylaws is vested in the board of directors,
and may be exercised at any annual or special meeting of the board.
ARTICLE IX
DISSOLUTION
Upon dissoluliou or winding up, all the corporation's remaining assets shall be
distnouted by the board of directom to any other organization or to any of the members as the
board of directors may determine in its sole discretion.
,·
SEA 1&13242vl 88-88
4
SEA 1918819v2 50665-10
Sl!atlle
AMENDED BYLAWS
OF
ALLIA!\CE FOR SOUTH END
Effective: December 10, 2006
EXHIBIT A.2
TABLE OF CONTENTS
Page
ARTICLE I 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
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 .1 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
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ARTICLE 8 Administrative and Financial Pro,·isions ................................................................... 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 of Incorporation ................................................................ 9
Section 8.6 Amendment of Bylaws.......... . ............................................................................. 9
Section 8. 7 Rules of Procedure .................................................................................................. 9
SEA 19!88J9v2 50665-10
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II
AMENDED A"iD REST A TED BYLAWS
OF
ALLIANCE FOR SOUTH END
ARTICLE I
MEMBERSHIP
Section I.I 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 shonening 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. l 03:
(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 prope1iy 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 1918819\'2 50665-10
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(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 A1iicles of Incorporation, Bylaws, or action of the board of
directors, or by operation of law.
Section 1.3 Certificates of Membe1·ship. Cenificates 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. Cenificates. 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 :Vlembcrship. 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 suppon 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. RemO\ al shall require the affirmative vote of three-fourths
(3/4'115 ) of directors present at a duly held meeting of the board of directors. In the event that any
such termination is contemplated, the boarJ of directors shall notify the Member in a record of
the reasons for the proposed action. and of the time and place of the meeting of the board of
directors at which termination is to be considered, not later than ten ( I 0) 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
MEETE\GS 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 I st day of April, at 1 (1:00 a.rn., 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 Jl)[88!9v2 50665-10
Scnttle 1
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 (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 ofregular
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 ~ otice by Email. If notice is provided to Members by
email, it is effective only with respect to 'vlcmbers 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 :'II otice 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 ~oticc 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 b, mail. facsimile, or email (pursuant to the
recipient's consent to receive notices by email J. together with comprehensible instructions
regarding how to obtain access to the posting on the electronic network.
Section 2.3.4 Delivery of l\ otice 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 l9\8819v25U66:i-l0
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_)
Section 2.4 Quorum. Members holding one-tenth (1/10 111
) 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 l\1embers.
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 tl1e
same time and panicipation by such means shall constitute presence in person at a meeting
Section 2.7 Consultation with 1\1embers 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(]). 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 hoard 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
S[A 19188!9v2 50665-10
Seattle 4
resolution. However, no such commiltee 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, whenever in their judgment the best interests of the corporation will be served thereby.
Section 3.6 Vacancies. The I'vlembers shall have the power to fill any vacancy
occun-ing in the board and any directorship to be filled by reason of an increase in the number of
directors by amendment to these Bylmvs. 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 or 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 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 snch 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 . .\Jo 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 llJl8819v2 50665-10
Scmtk 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 ."I etwork. 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 l\otice 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 thi~ section arc 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 1918819v2 50665-10
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 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 wiihout 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" mea11s: (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 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 hy 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. lle'She shall preside at meetings of the board of directors
and committees exercising any authority of the board and of the membership.
SEA 19l8819v2 50665-10
Se,1Hle 7
Section 7.3 Vice President. ln 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 cenificates 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 perfonn 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.
Section 8.2
to any director.
ARTICLE 8
ADMINISTRATIVE Al\D FINANCIAL PROVISIONS
Fiscal Year. The last day of the corporation· s fiscal year shall be
Loans Prohibited. The corporation shall make no loans to any officer or
Section 8.3 Corporate Seal. The hoard 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 sea1.··
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 ifin 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; conect and adequate
statements of accounts and finances; a list of officers' and directors' names and addresses;
minutes of the proceedings of the Members. if anv. 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:2 50665-10
Semtle 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 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 l\frmbers 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"Parliamenta,y Procedure by Alice Sturgis, newly revised, so far as applicable
and when not inconsistent with these Bvlaws. the 0\rticles 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 hoard of directors on December I 0, 2006.
SEA 1918819v2 50665-10
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-=---.
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 10, 2006, at 1 :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.
1. Approval of Amendments to the Bylaws. As the first order of business, the board
considered amendment to the corporation's Bylaws. After 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 ad,ance of decisions concerning appeals or litigation;
WHEREAS, on August 3 L 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 be consulted by the director(s) in advance of all
major decisions concerning appeals or litigation, including whether
or not to appeal, whether to dismiss appeals, whether to settle, etc.
The corporation shall carry out the directions of the members;
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 .. )\faster Plan'' appeals filed by Alliance for South
End, which decision stated that the members of Ailiance 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 1918714vl :50665-10
S, .. ".ittle EXHIBIT A.3
pursuant to the purpose of Alliance for South End and has detennined 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 Agreernem 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 authoriz.ing Margaret E. Potter to bind ASE and its members
to the provisions of the Settlement Agreement:
NOW. THEREFORE, it is hereby resohcd 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 pennit applications submitted by Harvest Partners for Buildings IO I and I 02 in
Quadrant C of The Landing's Site P!Jn 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 I 02;
WHEREAS, Buildings IO I and I 02 contain elements which are grossly contrary to the
laws of the City of Renton;
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NOW, THEREFORE, it is hereby rcsoh·ed as follows:
RESOLVED, that Buck & Gordon LLP is directed to file appeals
of the City's decision to approve building permits for Buildings
IOI and 102.
There being no further business to come before the meeting, it was adjourned at I: I I p.m.
ATTEST:
4~ Margaret E. Potter
Sole Director/Chair
SEA !918714vl 50665·10
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BracfNicholso~ ~ ------
Secretary
' ·'
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Al\fENDED BYLAWS
OF
ALLIA'.\'CE FOR SOUTH END
Effective: February 7, 2007
EXHIBIT A.4
TABLE OF CONTENTS
Page
AR TI CLE 1 Membership .............................................................................................................. 1
Section 1.1 Qualifications ........................................................................................................... 1
Section 1.2 Rights of Members ................................................................................................... ]
Section 1.3 Certificates ofMembership ...................................................................................... 2
Section 1.4 Status of Membership .............................................................................................. 2
Section 1.5 Termination of Membership .................................................................................... 2
AR TI CLE 2 Meetings of Members ................................................................................................ 2
Section 2.1 Annual Meetings ...................................................................................................... 2
Section 2.2 Special Meetings ...................................................................................................... 2
Section 2.3 Notice ofMeetings ................................................................................................... 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 3.1 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 ofMeetings ................................................................................................... 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
ARTICLE 8 Administrative and Financial Provisions ................................................................... 8
Section 8.1 Fiscal Year............................ . .......................................................................... 8
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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 ofProcedure ................................................................................................... 9
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11
AMENDED AND RESTATED BYLAWS
OF
ALLIAl'iCE 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 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
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(h) any voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03.220(1);
(i) any plan providing for the distribution of assets in dissolution, pursuant to
RCW 24.03.230(1); and
U) any other matters that may properly be presented to the Members for a
vote, pursuant to the corporation's Articles oflncorporation, 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 I.I of these Bylaws. Removal shall require the affirmative vote of three-fourths
(3/4th') 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 tennination. 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 te1mination 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(!/2) of the
votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty
SEA \9188\9vJ 0050665-0000\0
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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 (IO) 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 ofregular
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 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 \9\88\9vJ 0050665-0000\0
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Section 2.4 Quorum. Members holding one-tenth (l/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 (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 1918819vl 0050665-000010
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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 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.
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 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 1918819v] 0050665-()00010
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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 oftbe 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) bis or her dissent or abstention to such action
SEA 1918819"3 0050665-000010
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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.
ARTICLES
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
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 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.
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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
ADMINISTR>\TIVE 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 .l\rticles 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 1918819vl 0050665.()00010
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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 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 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 Parliamenta,y 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.
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--=52:27~~
Brad Nicholson, Secretary
9
MINUTES OF SPECIAL MEETING
*CONFIDENTIAL/
PRIVILEGED INFORMATION
REDACTED
OF THE MEMBERS A:\D BOARD OF DIRECTORS
OF
ALLIANCE FOR SOUTH END
A special meeting of the Members and board of directors of the Alliance for South End
("ASE" or the "corporation") was held at Renton, WA (the residence of
ASE Member ) on March IL 2007, at 3:15 p.m., for the purpose of electing
directors and officers, 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 ASE, was also present.
All other Members were present except , who was consulted in advance of
this meeting and who gave his proxy vote to Attorneys Duncan Greene and Peter
Buck were also present.
I. Report from Counsel on ASE Appeals and Standing Issues. As the first order of
business, attorneys Duncan Greene and Peter Buck briefed the Members on the status of
the Master Plan appeals, Site Plan appeals, and Building Permit appeals of The Landing.
2. Discussion of Member Goals Regarding The Landing and other Land Use Actions
in Renton. As the second order of business, the Members engaged in a general
discussion of The Landing project. They were unanimous in their opinion that the
approvals being issued for The Landing are grossly contrary to the laws of the City of
Renton and the State of Washington. both substantively and procedurally. They
instructed the directors and their attorneys to vigorously pursue all appeals and to
continue to appeal further approYals that follow what is considered to be an illegal course
of action. Specifically, the Members instructed the directors and attorneys to file an
appeal of the Building Permit Appro\'al for the structure designated as '"Building 200."
They also instructed the directors and attorneys to file a Land Use Petition Act (LUPA)
action seeking to overturn what is an expected denial of ASE' s appeal currently pending
before the Renton City Council.
SEA JgJ8714vl 50665-10
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•
4. Ratification of Past Actions of Members and Directors. As the fourth order of
business, the Members ratified all past actions of the Members and directors, including
but not limited to all actions concerning appeals, litigation and settlement of claims.
5. Approval of Amendments to the Bylaws. As the fifth order of business, the Members
and directors considered amendment to the corporation's Bylaws. It was suggested that
the bylaws be amended so that it is explicitly provided that the Members control the
corporation. The Members and directors reviewfd a proposed set of bylaws changes,
which are attached to these minutes. The Members all approved making the changes. It
was moved and seconded by the directors that the changes be made and the motion was
adopted unanimously.
6. Election of Directors. As the sixth order of business, the Members considered the
election of new directors of the corporation. After discussion, it was moved and seconded
that Brad Nicholson, . an be elected as directors of the
corporation. TI1e Members who were present vot~d unanimously to approve the election
of Brad Nicholso~. and-as directors of the
corporation.
7. Resignation of Officers. As the seventh order of business, the board accepted the
resignations of Margaret Potter as President and Brad Nicholson as Vice President and
Secretary.
8. Election of Officers. As the eighth order of business, the board considered the election of
officers of the corporation. After discussion, it was moved and seconded that Brad
Nicholson be elected to the office of President. that be elected to the
office of First Vice President, thai--be elected to the office of Second Vice
President, and that Margaret Potter be elected to the offices of Secretary and Treasurer.
The directors who were present v01ed unanimously ~ions of Brad
Nicholson to the office of President. the election of~o the office of
Vice President, the election of~o the office of Second Vice President, and
the election of Margaret Potter to the offices of Secretary and Treasurer.
9. Discussion Regarding Protection of Member Identities. As the ninth order of
business, the Members and directors reiterated the importance of protecting the identities
of ASE's Members due to a pattern of intimidation and marginaliza,tion by the City of
Renton.
10. Discussion of Agenda for 2007 Annual '\'leeting. As the last order of business, the
Members and directors discussed agenda items for the 2007 annual membership meeting.
There being no further business to come before the meeting, it was adjourned at ~p.rn.
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•
ATTEST:
~
Director/President
SE.A. J91&714vl 50665~10
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SEA 1918819vJ 0050665-000010
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AMEJ\'DED BYLAWS
OF
ALLIAJ\'CE FOR SOUTH END
Effective: March 11, 2007
EXHIBIT A.6
TABLE OF CONTENTS
Page
ARTICLE I Membership ................................................................................................................ 1
Section 1.1 Qualifications ........................................................................................................... I
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
ARTICLE 2 Meetings of Members ................................................................................................. 2
Section 2.1 Annual Meetings ...................................................................................................... 2
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 ...................................................................................................... 4
Section 3.1 Powers and Qualifications ..................................................................................... .4
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 ................................................................................................................. 5
AR TIC LE 4 Meetings of Board of Directors .................................................................................. 5
Section 4. I Annual Meeting ....................................................................................................... 5
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
AR Tl CLE 6 Waiver of Notice ........................................................................................................ 7
ARTICLE 7 Officers ....................................................................................................................... 7
Section 7.1 Officers Enumerated......... .. .............................................................................. 7
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 ..................................................................................................................... 8
Section 7.8 Removal ................................................................................................................... 8
AR TIC LE 8 Administrative and Financial Pro\'isions .................................................................... 8
Section 8.1 Fiscal Year .............................................................................................................. 8
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Section 8.2 Loans Prohibited ...................................................................................................... 8
Section 8 .3 Corporate Seal ......................................................................................................... 9
Section 8.4 Books and Records .................................................................................................. 9
Section 8.5 Amendment of Articles oflncorporation ................................................................ 9
Section 8.6 Amendment of Bylaws ............................................................................................ 9
Section 8.7 Rules of Procedure ................................................................................................... 9
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11
AMENDED AJ\'.D REST A TED BYLAWS
OF
ALLIANCE FOR SOUTH END
ARTICLE I
'.\1EMBERSHIP
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 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 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 control the direction of the
corporation to the extent permitted by law and 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) the election of Members pursuant to RCW 24.03.065 and termination of
membership pursuant to Section 1.5 of these Bylaws;
(f) all amendments to the corporation's Articles of Incorporation, pursuant to
RCW 24.03.165(1);
(g) 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);
SEA 1918819v] 0050665-000010
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(h) any plan of merger or consolidation of the corporation, pursuant to RCW
24.03 .195( I);
(i) any voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03.220(1);
(j) any plan providing for the distribution of assets in dissolution, pursuant to
RCW 24.03.230(1); and
(k) 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. Any Member may resign from the
corporation by delivering a written resignation to the president or secretary of the corporation.
Membership in the corporation may be terminated (a) for any action by a Member that is
detrimental to the best interests of the corporation, as determined by the Members, (b) for failure
to actively support corporate purposes, or to actively participate in corporate activities, as
determined by the Members, or (c) for failure continually to meet the qualifications of a Member
pursuant to Section 1.1 of these Bylaws, as determined by the Members. Removal shall require
the affirmative vote of three-fourths (3/4'hs) of the ;vlembers. 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 ( l 0) 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
MEETJ',TGS 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 first Saturday 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 Sunday or a holiday.
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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 (1/2) 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 membership at such time and place as the
secretary may fix, not less than ten (] 0) nor more than fifty (50) days after the receipt of said
request. lfthe 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.
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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.
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 'l-1embers.
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 J\·1embers in advance of all major decisions
concerning appeals, litigation or settlement of claims. The directors shall carry out the direction
of the members as expressed in such consultations to the extent permitted by law.
ARTICLE 3
BOARD OF DIRECTORS
Section 3.1 Powers and Qualifications. The affairs of the corporation shall be
managed by the board of directors, as directed by the Members. It is the intention of the
corporation and its Members that its actions be directed, to the extent permitted by law, by the
Members' actions at membership meetings and by the Members' input in all consultations with
directors. With respect to any matter which the law requires that the board of directors
determine, but where the members have expressed themselves on such matter, the directors shall
carry out the direction of the members to the extent permitted by law.
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Section 3.2 Number and Term. The number of directors of the corporation shall be
not less than one(!). 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
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 or any special 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.
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 membership meeting or any membership meeting at which any
SEA 1918819v3 0050665-000010
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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
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 :",'otice 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
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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
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 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
SEA 1918819v) 0050665-0000 I 0
Seattle 7
assistant officers as may be deemed necessary by the board of directors, each of whom shall be
annually elected by the board of directors at the annual membership meeting or any special
meeting, 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.
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.
ARTICLES
ADMINISTR-\ TIVE A!\D 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.
SEA l918819v3 0050665-000010
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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 ifin 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
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 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 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 March 11, 2007.
SEA 1918819v3 0050665-000010
Seattle
,:Brad Nicholson, Secretary
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CITY OF RENTON
APR 1 7 2007
~ RECEIVED
,,iTY CLERK'S OFFICE
I 2 ll;/' <-i /J
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 Building Permit
Application Approval for Building 200
No. 860688
CITY OF RENTON'S
MOTION TO DISMISS FOR
LACK OF STANDING AND
JURISDICTION
I. INTRODUCTION
The City of Renton joins with Applicant Harvest Partners' motions to
dismiss Alliance for South End's (ASE) appeals for lack of standing and
incorporates by this reference, the arguments made therein.
II. FACTS
On or about November 28, 2006 city staff issued an approval for a building
permit for the subject buildings. This approval followed an approval of a site plan
(August, 2006), a designation that The Landing was a planned action under the
Planned Action Ordinance (May, 2006), an approval of the Master Site Plan (May,
2006), Council Approval of a Planned Action (November 2004), Council approval
of an amended Conceptual Plan ( aka Center Oaks Conceptual Plan-October
City of Renton's Motion to
Dismiss for Lack of
Standing Page 1
ORIGINAL
WARREN BARBER & FONTES, P.S.
ATTORNEYS AT LAW
IOOSOU1B SECOND STREET-P.O. BOX 626
RENTON, WA 98057
PHONE: (425) 255-8678 FAX: (425) :ZSS.-5474
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2004), and an FEIS on the original Boeing Concept Plan (October 2003), Renton
hereby incorporates by this reference its briefing in the appeals of the Planned
Action Ordinance, the Master Site Plan Approval, the Site Plan Approval, and the
appeal of the Director's Interpretations.
Ill. ISSUES
1. Is the issuance of a building permit following prior approvals that have
not been overturned a mere ministerial act, and not subject to appeal?
IV. ARGUMENT
1. The issuance of a building permit, following prior approvals, is a
mere ministerial act and not subject to appeal.
In the case of Perry v. Department of Labor and Industries, 48 Wn. 2d 205,
292 P.2d 366 (1956), the state high court set out the long standing proposition that
where there is an earlier order that the department was following and
implementing, there could not be an appeal.
The salient facts are not in dispute: the building permits at issue here follow
all necessary prior approvals. Appellants have not taken any legal steps to stop
the construction about which they complain. Therefore, there is no legal reason
upon which the city could rely to refuse the building permits al issue here. To do
so would open the city to liability.
If Appellants held the belief that they would be truly harmed, versus the
speculative harm to a non-party, Westfield, they would have long since sought
City of Renton's Reply to ASE's Response to
Harvest Partners' Motions to Dismiss for
Lack of Standing -2 WARREN BARBER & FONTF.S, P.S.
ATIORNEYSATLAW
100SOUTH SECOND STREET~ P.O. 'BOX 626
RENTOt,;, WA 98057
PHONE: (425) 255-8678 FAX: (425) 255-5474
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judicial relief to stop the construction. Rather, Appellants herein are not truly
harmed, as Renton and Harvest Partners have argued throughout all of the
appeals concerning The Landing project.
V. CONCLUSION
The City of Renton respectfully requests that its motion to dismiss
and that of Harvest Partners be granted.
DATED this 241h day of July, 2006.
WARREN BARBER & FONTES, P.S.
City of Renton's Reply to ASE's Response to
Harvest Partners' Motions to Dismiss for
Lack of Standing -3 WARREN BARBER & FONTFS, P.5.
ATTORNEYS AT LAW
100 SOtmI SECOND5TREET-P.O. BOX 626
RENTON, WA 98057
PHONE: (425) 255-8678 FAX: (425) 255-5474
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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.8060540
8060688
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 17th day of April 2007, I caused to be delivered via legal messenger a true and correct
15 copy of (1) Applicant's Motion to Dismiss ASE and Nicholson Appeals From the Landing
16 Building Permit Approval for Lack of Standing (No. B060688) with Exhibits A-G; (2)
17 Applicant's Motion to Dismiss ASE and Nicholson Appeals From the Landing Building
:"8 Permit Approvals for Lack of Standing (No. B060540) with Exhibits A-G; and (3) this
19 Certificate of Service to the following:
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Mr. Fred Kaufinan, 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
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
Certificate of Service -Page 1 o/2QRIGINAL
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
Brad Nicholson
c/o 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
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DATED this i1-t>, day of April, 2007.
13 #345401 18449-004 7#$h0l!.doc 4/17/07
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Certificate a/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
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) and
Brad Nicholson re:
Building Permit Application Approval
for Building 200.
B060688
APPLICANT'S MOTION TO DISMISS
ASE AND NICHOLSON APPEALS FROM
THE LANDING BUILDING PERMIT
APPROVAL FOR LACK OF STANDING
12 Appellant Alliance for South End ("ASE"), a front group funded by a competing
J 3 shopping mall, and Appellant Brad Nicholson, a member of ASE, have filed appeals related to
14 a Building Permit Approval for one building, Building 200, located in Applicant Harvest
15 Partners' project, The Landing. A site plan depicting Building 200 is attached hereto as
16 EXHIBIT A. These appeals represent the third round of appeals, or "Landing III", 1 with
17 "Landing I" being ASE's previous appeals of The Landing's master plan approval and The
18 Landing's planned action designation, and "Landing II" being ASE and Mr. Nicholson's
19 previous appeals of The Landing's site plan approval. In September 2006, the City of Renton
20 Hearing Examiner dismissed both of ASE's Landing I appeals due to ASE's Jack of standing.
21 On appeal, the Renton City Council affirmed the dismissal of ASE's Landing I appeals. In
22 February 2007, the Examiner dismissed ASE's Landing II appeal for lack of standing.
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1 ASE and Mr. Nicholson have also filed appeals of the City's building permit approvals for Buildings IO I
and 102 in The Landing, under Case No. B060540. Those appeals are also currently pending before the Hearing
Examiner, and the parties have agreed to consolidate the hearing on these appeals. Together, therefore, the two
building permit appeals represent the third round, or "Landing III" of appeals. However, because of the
differences between the two appeals due to the different filing dates, Applicant has filed a separate motion to
dismiss those appeals.
Motion to Dismiss Appeals of
Building Permit Approval -Page I of ](ORIGINAL
HlLLlS CLARK MARTJN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
In an attempt to demonstrate standing while the Landing II appeal was still pending,
2 ASE supplemented the Landing II record with various "excerpts" from ASE's Bylaws, ASE's
3 corporate meeting minutes, and, finally, several full copy versions of ASE's Bylaws. Despite
4 these changes in form, however, the substance of the organization -a shell group in existence
s to thwart economic development in Renton -clearly remained unchanged.
6 I. RELIEF REQUESTED
7 Applicant Harvest Partners seeks an order from the Examiner dismissing the appeals
8 of ASE and Mr. Nicholson, dated March 13, 2007, pertaining to the City ofRenton's Building
9 Permit Approval for Building 200 in The Landing. The appeals should be dismissed for lack
IO of standing.
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II. STATEMENT OF FACTS
A. ASE's Master Plan Appeals Dismissed for Lack of Standing
ASE is a Washington nonprofit corporation established in May of2006 by the attorney
for WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall. In May
and June 2006, ASE filed appeals of the City's master plan approval for The Landing, and the
City's determination that The Landing was consistent with the adopted Planned Action
Ordinance. In the course of those appeals ("Landing I"), and based upon ASE's official
filings with the Washington Secretary of State's office, Applicant gathered the following facts
related to ASE's corporate status:
• ASE had only one named member, Brad Nicholson.
• Peter Buck, an attorney whose law firm represents Westfield, served as ASE's
initial Director, President, lncorporator and Secretary.
• ASE replaced Mr. Buck with a new Director and President, Margaret Potter.
Ms. Potter is a former employee of Buck & Gordon, the firm representing
Westfield.
• Westfield was funding ASE's litigation .
Motion to Dismiss Appeals of
Building Permit Approval -Page 2 of IO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
• According to an undated, unsigned "excerpt" from ASE's Bylaws, provided to
2 Applicant on the eve of the hearing on ASE's Landing I appeals, ASE's
3 members had very limited rights overall, and had no right whatsoever to direct
4 the course of ASE's litigation. A copy of the excerpt from ASE's Bylaws is
5 attached hereto as EXHIBIT B.
6 Based on these facts, the Renton Municipal Code, and standing jurisprudence, on
7 September 5, 2006, the City of Renton Hearing Examiner dismissed both of ASE's appeals
8 for lack of standing. A copy of the Examiner's decision is attached hereto as EXHIBIT C (the
9 "Examiner's Landing I Decision"). The Examiner's Landing I Decision was affirmed by the
10 Renton City Council on March 12, 2007. A copy of the City Council's decision is attached
11 hereto as EXHIBIT D (the "City Council Decision").
12 B. ASE's Site Plan Appeal Dismissed for Lack of Standing
13 On August 31, 2006, ASE and Mr. Nicholson filed appeals of the City's site plan
14 approval for The Landing. In the course of those appeals ("Landing II"), Applicant gathered
15 the following additional facts related to ASE' s corporate status:
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• AS E's sole director, Margaret Potter, allegedly held a meeting with herself at
her home in Mt. Vernon on August 31, 2006 -the same day that the site plan
appeal was filed -to accept the resignation of officers, elect new officers, elect
new (unnamed) members, and to adopt the following new "policy statement":
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.
• On December I 0, 2006 -the day before the present appeals were filed -
Margaret Potter (still the sole director of ASE) purportedly held another
meeting in which she adopted amended Bylaws and, after "consultation" with
the members, decided to file the present appeals.
Motion to Dismiss Appeals of
Building Permit Approval -Page 3 of 10
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Sealtle WA 98101-2925
206.623.1745; fax 206.623.7789
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• The amended Bylaws, effective December I 0, 2006, modified the voting rights
of the members and included a new Section 2. 7 requiring the board of directors
to "consult" with members regarding major decisions. A copy of ASE's
December I 0, 2006 Bylaws is attached hereto as EXHIBIT E. Interestingly, the
key sentence of ASE's "policy statement," requiring ASE not only to "consult"
but actually to carry out the direction of the members, was notably absent from
the new Section 2.7:
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 December 10, 2006 version of the Bylaws included minor alterations to
Section 1.5, regarding Termination of Memberships, but did not change the
fact that the directors could terminate the memberships at any time and without
prior notice.
• On the same date that ASE provided Applicant with a copy of the December
10, 2006 version of the Bylaws, ASE provided yet another version of ASE
Bylaws, this one dated February 7, 2007.2 This latest version of the Bylaws
was supposedly adopted by the director and member(s) via email transmission
just one week before the hearing on the standing motions for the Landing II
appeals, although it was not mentioned at the hearing nor provided to the
Applicant and the Examiner until after the motions were heard. The only
apparent change to the ASE Bylaws in this version was a modification to
Section 1.5, to require a vote of the members before memberships could be
terminated. No additional members of ASE were named. A copy of ASE's
February 7, 2007 Bylaws is attached hereto as EXHIBIT F.
2 As Applicant argued in the Landing II proceedings, neither version of amended Bylaws was relevant for
28 purposes of ASE's Landing II appeal, as they were adopted well after the date the Landing II appeal was filed.
Motion to Dismiss Appeals of
Building Permit Approval -Page 4 of IO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623. 1745; fax 206.623.7789
• Westfield continued to fund ASE's litigation.
2 Based on these facts, the Renton Municipal Code, and standing jurisprudence, on
3 February 22, 2007, the Examiner dismissed ASE's appeal of The Landing site plan for lack of
4 standing. A copy of the Examiner's decision is attached hereto as EXHIBIT G (the
5 "Examiner's Landing II Decision"). As the Examiner stated, "The association remains the
6 shell corporation it was in Landing I." Ex. G, Examiner's Landing II Decision, at 4.
7 C. ASE and Mr. Nicholson Appeal Building Permit Approvals
8 On February 27, 2007, the City of Renton issued a decision approving a building
9 permit for Building 200 (the "Building Permit Approval"). Building 200 is located in the
IO north central portion of the southwest quadrant of The Landing project. See Ex. A.
11 On March 13, 2007, ASE and Mr. Nicholson filed an appeal of the Building Permit
12 Approval. The appeal provides no new evidence regarding ASE's corporate structure to
13 support ASE's standing. Interestingly, while the appeal attempts to support ASE's standing
14 with citations to ASE's Bylaws, the quoted language is notably absent from even the latest
15 version of the Bylaws. For example, the appeal states: "ASE's Amended Bylaws provide that
16 '[t]he members shall control the direction of the corporation to the extent permitted by law."'
17 ASE Appeal, at 2. However, this language is not in any version of the ASE Bylaws provided
18 to Applicant and the Examiner. Furthermore, the appeal cites no direct injury in fact arising
19 from the Building Permit Approval; rather, it contains only abstract, general assertions of
20 standing, unrelated to the Building Permit Approval. ASE Appeal, at 2-6.
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III. ARGUMENT
A. ASE Lacks Associational Standing.
1. ASE has the burden to establish associational standing.
In order to appeal an administrative decision, an appellant must have standing.
RMC 4-8-110.E.3 .b. The Renton Municipal Code limits standing for appeals of
administrative determinations to those persons who are aggrieved. Id. In determining
whether a party is aggrieved, courts require the appellant to demonstrate an injury in fact, and
Motion to Dismiss Appeals of
Building Permit Approval-Page 5 of JO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
•
to show that its allegedly endangered interest is within the "zone of interest" to be protected
2 or regulated. Trepanier v. City of Everett, 64 Wn. App. 380, 382, 824 P.2d 524 (1992). The
3 appellant bears the burden of establishing the elements of standing. See Concerned Olympia
4 Residents/or the Environment (C.O.R.E.) v. City of Olympia, 33 Wn. App. 677,683,657 P.2d
s 790 (1983). As an association, ASE has the burden of establishing that it has standing to
6 bring an appeal on behalf of its members. Int'/ Ass 'n of Firefighters, Local I 789 v. Spokane
7 Airports, 146 Wn.2d 207,213, 45 P.3d 186 (2002).
8 In their review of the Landing I and Landing II appeals, the Examiner and the Renton
9 City Council analyzed the evidence to evaluate whether ASE had met its burden to
1 o demonstrate associational standing. In both instances, it was determined that ASE had failed
11 to meet its burden. As set forth in the Examiner's and City Council's decisions, despite
12 ASE's attempts to supplement the record with revised Bylaws or purported corporate meeting
13 minutes, the evidence was insufficient to demonstrate that ASE had standing. See Ex. C,
14 Examiner's Landing I Decision, at 8 ("[ASE] is a mere shell created by the applicant's
15 potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's
16 proposed development"); see also Ex. G, Examiner's Landing II Decision, at 5 ("ASE is a
17 sham standing in for a competitor that does not have standing"); see also Ex. D, City Council
18 Decision, at 4 ("ASE lacks associational standing to bring these appeals").
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2. ASE's attempts to correct the record are insufficient to demonstrate
associational standing.
Even if the Examiner accepts as part of the Landing III record those corporate
documents submitted after-the-fact in the Landing II appeals, including the numerous versions
of the ASE Bylaws, ASE has still failed to present evidence sufficient to meet its burden of
proof. Indeed, as of the date ASE filed this appeal, ASE had still provided evidence of only
one alleged member, Brad Nicholson. ASE still had only one director, a former employee of
Buck & Gordon. Based upon the latest version of amended Bylaws, dated February 7, 2007,
and in contradiction with ASE's supposed "policy," ASE's directors were to "consult" with
its members prior to major decisions, but were not required to carry out the direction of the
Motion to Dismiss Appeals of
Building Permit Approval -Page 6 of 10
HILLIS CLARK MARTIN &
PETERSON, P .S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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members. See Ex. F, ASE's 2/7/07 Bylaws, at Section 2.7. Finally, ASE was still funded and
2 controlled by Westfield.
3 The Examiner has previously reviewed the facts and found that ASE is a shell group,
4 funded and controlled by an economic competitor solely to thwart the development of The
s Landing, and that ASE's sole member, Mr. Nicholson, is merely a "straw man" whose
6 interests are not necessarily represented by the association. See Ex. C, Examiner's Landing I
7 Decision, at 5, 8. ASE has failed to produce additional credible evidence to establish that its
8 member guides ASE's actions or has control over ASE, or that the organization is acting "on
9 behalf' of the member. Rather, all evidence produced by ASE suggests that ASE's member is
1 o no different than a mere bystander. As a mere bystander to the appeals, Mr. Nicholson is not
11 being represented by ASE. Therefore, ASE does not have associational standing, and the
12 Examiner should once again dismiss ASE's appeal for lack of associational standing.
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3. ASE has not met its burden to show injury in fact from the Building Permit
Approval.
Even if ASE was able to demonstrate that it had associational standing to bring this
appeal on behalf of its members, the association also bears the burden of establishing that its
member meets the elements of standing.
Here, ASE has failed to demonstrate that its member suffers an injury in fact arising
out of the Building Permit Approval. As discussed below, neither ASE nor Mr. Nicholson
has presented evidence to demonstrate that Mr. Nicholson has suffered or will suffer a
concrete, particularized injury arising out of the Building Permit Approval. By failing to
present any evidence of injury in fact to its member, ASE has failed to establish standing.
B. Mr. Nicholson Lacks Standing.
1. Mr. Nicholson has not met his burden to show injury in fact arising out of
the Building Permit Approval.
Standing must be established as to each and every claim. See DaimlerChrys/er
Corp. v. Cuna, 126 S. Ct. 1854, 1867 (2006) ("The standing inquiry requires careful judicial
examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled
Motion to Dismiss Appeals of
Building Permit Approval -Page 7 of JO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
to an adjudication of the particular claims asserted."). Therefore, it is important to first
2 identify the particular claims in the appeal, and then determine whether the appellant has
3 presented evidence sufficient to establish standing for each of those claims.
4 To establish standing, the appellant bears the burden of demonstrating that he will be
s specifically and perceptibly harmed by the challenged action of approving the Building
6 Permit; in other words, the appellant must show a "direct stake" in the Building Permit
7 Approval. C.O.R.E., 33 Wn. App. at 684. The requirement that the appellant demonstrate his
8 "direct stake" in the controversy consequently means that generalized grievances are
9 insufficient to establish standing. See, e.g., Chelan County v. Nykreim, 146 Wn.2d 904, 935,
1 o 52 P .3d I (2002) ("An interest sufficient to support standing to sue, however, must be more
11 than simply the abstract interest of the general public in having others comply with the law").
12 This is an appeal of the City of Rcnton's Building Permit Approval for one building in
13 The Landing. The building permit stage represents one distinct stage in the City ofRenton's
14 permit review process. By the time this stage occurs, the City has already considered the
1 s project as a whole, and has issued approvals of the master plan and site plan. Unlike those
16 earlier stages of permit review, which may consider the environmental impacts of the project,
17 or the configuration of the buildings, parking areas, or drive aisles within the site, the City's
18 review of building permit applications is limited to whether the building permit is consistent
19 with the previously approved site plan, and whether it meets the building code requirements
20 of the International Building Code and the Renton Municipal Code.
21 Therefore, in order to establish standing, Mr. Nicholson must demonstrate that he has
22 suffered or will suffer a direct, concrete, particularized injury in fact arising out of the
23 Building Permit Approval. However, Mr. Nicholson fails to assert any injuries arising from
24 the Building Permit Approval. Instead, all of the claimed injuries arise from the previously
25 approved master plan, site plan, or environmental review for The Landing. As discussed
26 below, such collateral attacks upon prior approvals for The Landing are impermissible, and
27 thus insufficient to grant standing.
28
Motion to Dismiss Appeals of
Building Permit Approval -Page 8 of JO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
2
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2. Mr. Nicholson cannot use this appeal to collaterally attack prior approvals.
Washington courts prohibit appellants from using appeals of land use decisions to
collaterally challenge prior approvals. See, e.g., Habitat Watch v. Skagit County, 155 Wn.2d
397, 410-11, 120 P.3d 56 (2005) ("In challenging the grading permit, Habitat Watch actually
(and exclusively) challenges the validity of the special use permit and its extensions ... Habitat
Watch cannot collaterally attack them through its challenge to the grading permit"). The only
approval at issue in this appeal is the Building Permit Approval. Therefore, Mr. Nicholson's
appeal of the Building Permit Approval must be limited to the validity of the City's Building
Permit Approval. Mr. Nicholson cannot in this appeal collaterally challenge the site plan or
master plan approvals, nor can his standing for this appeal be based upon injuries arising out
of those previous decisions.
Examination of Mr. Nicholson's supposed "injuries" reveals that none of the injuries
could possibly arise from the Building Permit Approval. Instead, each of the purported
injuries relates back to prior approvals for The Landing, including the master plan and site
plan approvals. By attempting to establish standing with claims of injury arising from prior
approvals, Mr. Nicholson engages in a collateral attack on the prior City decisions.
For example, Mr. Nicholson states that he will suffer injury in fact due to the
"increased traffic" and "decreased water quality" arising from the "unanalyzed and
unmitigated traffic and stormwater impacts." ASE Appeal at 5. However, these claims of
unanalyzed environmental impacts, or alleged flaws in the overall project concepts, do not
arise from the Building Permit Approval. Regardless of whether the specific building permit
for Building 200 was approved, the traffic and stormwater impacts of the project as a whole
were already analyzed and approved by the City -at the environmental review stage, the
master plan stage, and the site plan stage. These alleged injuries are therefore unrelated to
this appeal, and any assertion of standing on the basis of these claims is inappropriate and
insufficient to establish standing for this appeal. Appellants are simply trying to collaterally
attack The Landing master plan and site plan. Such a collateral attack is not permitted.
Motion to Dismiss Appeals of
Building Permit Approval -Page 9 of JO
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
•
Moreover, Appellants do not allege that there should be no building at the site of
2 Building 200; rather, their appeal merely relates back to surface parking lots and driveways
3 near the building, all of which were already approved in The Landing site plan. Thus, despite
4 resting their standing upon alleged injuries such as stormwater and traffic impacts, there is no
5 allegation or showing that the stormwater and traffic impacts would be altered with or without
6 the Building Permit Approval.
7 IV. CONCLUSION
8 ASE has the burden to demonstrate its associational standing. The Examiner and the
9 Renton City Council have dismissed ASE' s prior appeals for lack of associational standing,
IO and ASE has failed to present sufficient evidence of a material change in the status of its
11 members. Further, ASE has failed to demonstrate that it has suffered an injury in fact.
12 Because ASE has failed to carry its burden, its appeal must be dismissed.
13 The parties to an appeal must have standing as to each and every claim asserted in
14 their appeal. Mr. Nicholson presents no evidence of particularized harm arising out of the
15 Building Permit Approval, attempting to rely instead upon collateral attacks of the master
16 plan and site plan. Because Mr. Nicholson has not established that he has standing to bring
17 this appeal, his appeal must be dismissed.
18 For the reasons set forth herein, the appeals of ASE and Mr. Nicholson from the City
19 ofRenton's Building Permit Approval should be DISMISSED.
20
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24
25
26
27
28
DATED this /]11 day of April, 2007.
#351001 18449-004 7$%1011.doc 4/17/07
Motion to Dismiss Appeals of
Building Permit Approval -Page JO of IO
HILLIS CLARK MARTIN &
PETERSON, P.S.
/~.
l romdL. Hi! is, WSBA: #1704
an Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant
Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seatlle WA 98101-2925
206.623.1745; fax 206.623.7789
•
EXHIBIT A
I •
EXHIBIT B
Excerpt of Bylaws for ASE
9VS1"d
BYLAWS
OF
ALLIANCEFORSOUTHEND
ARTICLE I
MEMDERSHIP
Section 1.l Election of Members, The members of the
corporation ("Members") shall consist of individuals, domestic or foreign
profit or nonprofit corporations, general or limited partnerships,
associations or other entities ( each, a "Person") that have each of the
following qualifications, as determim;d 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 pui:poses of the corporation.
(b) The Person has paid dues to the corporation in such amounts
and at such times as the board of directors may establish by resolution.
(c) The Person has made such applications or entered into such
agreements as the board of directors may require.
(d) The Person has been elected as a Member by the board of
directors at any meeting thereof.
Section 1.2 Rights of Members. The rights oftbe Members
shall be exclusively as follows, and none of the Member shall have any
other rights whatsoever:
(a) The Members shall have voting rights with regard to the
question of whether to approve a plan of merger or consolidation,
pursuant to RCW 24.03.195(1).
(b) The Members shall have voting rights with regard lo the
question of whether to approve a sale, lease, exchange, or other
disposition of all, or substantially all, the property and assets of the
corporation not in the ordinary course of business, pursuant to RCW
24.03.215(1).
(c) The Members shall have voting rights with regard to the
question of whether to approve the voluntary dissolution aud winding up
of the corporation, pursuaut to RCW 24.03.220(1). eaalf B
1 of2 pages
s~+uo~ ~ ~aq...reA u•~J~M
.... -·----
(d) The Members shall have voting rights with regard to the
question of whether to approve a plan of distribution, pursuant to RCW
24.03.230(1).
Section 1.3 Certificates of Membership. Certificates of
mernbershlp in the corporation may be issued. If issued, they shall be
nwnbered, 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
coi:poration shall be personal, shall not survive the death of any individual
Member, and may not be transferred by operation of law or by any other
means.
Section 1.5 Termination ofMem.bership. Membership in the
corporation may be terminated (a) for any action by a Member that is
detrimental to the best interests of the corporation, (b) or for failure to
actively support corporate purposes, or to actively participate in corporate
activities, or (c) for failure continually to meet the qualifications of a
Member pursuant to Section 1.1 of these Bylaws. Removal shall require
the affirmative vote of the board of directors. In the event that any such
termination is contemplated, the board of directors shall notify the
Member in a record of the reasons for the proposed action, and of the
time and place of the meeting of the board of directors at which
termination is to be considered, not later than ten (10) days prior thereto.
Prior to the meeting, the subject Member shall be entitled submit written
responses to the stated reasons for termination. At the option of the
Board, the termination may be inunediate, without prior notice, but with
full post termination appeal proceedings.
September 5, 2006
DECISION OF THE HEARING EXAMINER ON
MATTERS OF STANDING AND JURISDICTION BROUGHT BY
ATIORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND
PROGRESSIVE ALLIANCE FOR A SUSTAINABLE SOUTHEND (PASS)
While some background may help trdJlle this decision, elaborate details and history need not be
provided at this time as the only issues currently are whether the parties have standing to bring
challenges of the City's actions and whether the Hearing Examiner has jurisdiction to hear the
challenges if the parties do have standing.
This matter concerns City decisions regarding The Landing, a land use project proposed for
approximately 47 acres in north Renton. The land, in the main, was property used by the Boeing
Company for its airplane business and vacated as the company consolidated its operations toward
the north and west. With the potential for the land to be developed or redeveloped the City of
Renton conducted an environmental review of proposed changes to its Comprehensive Plan and
Zoning Code and 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 !hat matter is a member of one of two groups
challenging current decisions regarding the current proposal.
Subsequently, Boeing sold off some of the acreage and a developer offered a development plan.
The City held a public hearing and approved Ordinance 5107, a Planned Action Ordinance. Thal
ordinance designated as Planned Actions uses and activities described in the FEIS and subject to
mitigation measures that had been separately proposed as part of a Development Agreement
originally agreed to by Boeing and the City. That ordinance further allowed changes to that or
other proposals that fell within the scope and character of the original plan. The original developer
abandoned their original plans and the 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. An appeal of the
City's proposed infrastructure improvements in the area where the subject proposal would be
developed had been initially filed but was withdrawn.
Two separate citizen groups filed appeals of the City's action or actions, No individual filed an
appeal on his or her own behalf.
The City and the underlying applicant, Harvest Partners (Applicant), challenged the standing of the
two groups that brought the appeals. At a Pre-hearing Conference the issue of standing as well as
the Examiner's jurisdiction to hear the appeals were defined as issues to be resolved prior to any
public hearing on the merits of the appeal or appeals. The various parties submitted motions and
responses and oral argument was heard on the motions.
El lllff _t_· _
91/C:0'd
Hearing Examiner Decision
September 5, 2006
Pagc2
The parties to the proceeding are the City, the applicant and the two citizen groups.
Standing to Bring the Appeals;
The Hearing Examiner Ordinance in part provides the following language on appeals:
RMC 4-8-110(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
svrn · c1
I. Applicability and Authority:
a. Administrative Determinations: Any administrative decisions made may be
appealed to the Hearing Examiner, in writing, v.ith the Hearing Examiner,
Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995)
b. Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action is granted, conditioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appealable to the Hearing
Examiner under the provisions of this Section.
c. Authority: To that end, the Examiner shall have all of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concemeci
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals or the City's Environmental Determinations:
Appeals from environmental determinations as set forth in subsection El b of
this Section or RMC 4-9-070N may be taken to the Hearing Examiner by
any person aggrieved, or by any officer, department, board or bureau of the
City affected by such determination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issuance of a Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means injury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative 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 dctennination. (Ord. 3454, 7-28-1980)
c. Special Standing Requirements for Appeals of Administrative
Detenninations Relative to the Tree Cutting and Land Clearing Regulations:
Hearing Examiner Decision
September 5, 2006
Page 3
Any individual or party of record who is adversely affected by such a
decision may appeal the decision to the City's Hearing Examiner pursuant to
the procedures established in this Section. (Ord. 4351, 5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
One citizen group is identified as the "Alliance for South End" (hereinafter, ASE). They
chall engcd two actions:
The Director's decision designating "The Landing" as a planned action;
The Director's decision approving the Master Plan for "The Landing."
The only member of ASE identified was Brad Nicholson. He lives northeast of the project area.
He drives through the area where the project is proposed. He also uses the nearby Coulon Parle.
He has identified traffic as an issue that would a!fect him. He also identified impacts to the water
quality of Lake Washington as an issue that concerns him. He also identifies himself as someone
who might shop, work or live in the area that would be developed if The Landing were approved.
It was Mr. Nicholson, as an individual, who challenged the original EIS prepared for the City's
Comprehensive Plan amendments and Zoning Code amendments.
The second group is identified as "Progressive Alliance for a Sustainable Southend" (hereinafter,
PASS). This second group appealed three actions:
The Director's decision on the Master Site Plan
The Planned Action decision on the roadwork and utility improvements
The Planned Action decision on "The Landing."
Two PASS members specifically identified arc Patrick Kile and Sheila Pratt. Mr. Kik is a member
of United Food and Construction Workers Local 21, which is a member of PASS. He lives at 530
Bumett Avenue North in Renton, Washington, a few blocks south of the proposed development.
He has resided there since May 1997. He maintained that he wanted to be involved in the review
process_ He noted traffic and construction would affect him. Ms Pratt, according to her signed
Declaration, lives at 300 Vermont (sic: Most likely Vuemont) Place Northeast in Renton,
Washington, also a few blocks from the proposed development. She wants to be involved because
anything that occurs on that site would affect her due to her proximity to the proposed
development. Traffic was identified as one area that concerns and would affect her. Her use of
Coulon Memorial Park would be affected by more users, parking dynamics and pollution to Lake
Washington adjacent to the park.
Hearing Examiner Decision
September 5, 2006
Page 4
Since neither appeal was filed by any of the named individuals, the associations or groups they
belong to can only have standing if some member of the association would have standing. !nt'l
Ass'n ofFirefighlers, Local 1789 v. Spokane Airports, 146 Wn.2d 207,213, 45 P.3d 186 (2002).
The first group to be considered would be ASE, the group in which Mr. Nicholson is a member.
The attorney representing ASE also represents Westfield, WEA Southcenter LLC, a business which
ov,ns and operates a large shopping center, Southcenter, located in Tukwila, Washington, a few
miles southwest of the current proposal's location. The business, the attorney admitted is involved
in providing at least some funding for this litigation and is on record (press releases and
announcements -citations omitted) as opposing this developmenl Both the City and applicant
challenged the standing of ASE based on the association of Westfield with this litigation and its
funding. They challenged ASE as a shell corporation intending to directly impede the subject
proposal by indirect means that Westfield could not do directly. Westfield, as an economic
competitor has no standing to bring an appeal. Evidence presented at the hearing was the
membership application ofMr. Nicholson and the bylaws of ASE.
The membership application contains the following footer text:
"C:\DOCUMENTS AND SEITING/PETER/MY
DOCUMENTS/DATA/DOC/WESTFIELD/NON PROFIT/MEMBERSHIP FORM.DOC"
(Exhibit A, Membership Application • Alliance for South End that Mr. Nicholson submitted for
membership in ASE)
The Bylaws of ASE provide the voting rights of members of ASE:
Section 1.2 Rights of Members. The rights of the Members shall be exclusively as follows, and
none of the Member (sic) shall have any other rights whatsoever:
(a) The Members shall have voting rights with regard to the question of whether to
approve a plan of merger or consolidation, pursuant to RCW 24.03.195(1).
(b) Toe Members shall have voting rights with regard to the question of whether to
approve a sale, lease, exchange, or other disposition of all, or substantially all, the
property and assets ofthc corporation not in the ordinary course of business,
pursuant to RCW 24.03.215(1).
(c) The Members shall have voting rights with regard to the question of whether to
approve the voluntary dissolution and winding up of the corporation, pursuant to
RCW 24.03220(1).
( d) The Members shall have voting rights with regard to the question of whether to
approve a plan of distribution, pursuant to RCW 24.03.230(1 ). (Exhibit B)
At the hearing this office in trying to understand the relationship of ASE's members and
specifically Mr. Nicholson's relationship to the litigation and also guided the litigation asked: "Who
is driving the car?"
9VS0"d
Hearing Examiner Decision
September 5, 2006
Page5
Staying with the "who is driving the car" analogy:
Mr. Nicholson has no official say in the course or direction that this litigation will take. He cannot
steer the litigation with any vote he can take. ASE's attorney noted Mr. Nicholson has a say in the
litigation. It is easy to say that he can provide input but there is nothing he can do to control where
it goes. He has no vote in the organization that controls or governs or even gently directs the
appeal. ASE merely uses his "stature" as an affected person to give it standing.
Okay, granted, if there were 3 or more members of ASE, Mr. Nicholson would only be one voice.
The other members could outnumber and outvote him. Except, clearly, those others cannot out
vote him since none of them has a vote.
Steering ahead with this "who is driving" analogy, one has to determine what is being driven.
Sometimes folks being driven have a say in the route and sometimes they don't. In a car pool they
have a say. On a public bus they do not. In some cases they can get off (bus) and at other times,
they are on for the ride until it reaches a predetermined destination (airplane). With a bus, the
conveyance may still be driven but no one is onboard any longer. A bus goes to the last stop even
if there is no longer anyone on board. Toe course of the bus was clear from the start and that's
where the bus goes. Can this litigation continue if there are no riders?
ASE only has standing while there are members and while there are members with standing, that is,
persons with the potential to be injured if they don't get a reasonable resolution of their appeal.
Which itself brings up an interesting point -what if the membership dissolves, that is fades away,
without dissolving ASE officially? Does ASE have any standing if there were no members any
longer even if they or he did exist when the appeal was filed?
The appellants labeled Mr. Nicholson a "poster child" (ASE's response to applicant's motions to
dismiss for lack of standing, Page 1) for the type of person within the zone of interest of SEPA. He:
could actually be a "poster child" ofa "straw man" for an organi?.a.tion which has no meaningful
substance.
The definition of a "straw man" is: A third party used in
some transactions as a temporary transferee to allow the
principal parties to accomplish something that is otherwise
impermissible." (Black's Law Dictionary, Seventh Edition)
We have a litigant or litigants, if one accepts that there are other members of ASE (although there
was no proof of their existence or their individual attributes of standing), who have no control of
the litigation.
Toe Bylaws of ASE specifically limit the participation, at least, in any voting that might control or
influence the actions of the corporation. An interesting side note is that variously ASE's Attorney
noted that: (1) there were "no members" in its initial filing with the Secretary of State; (2) then in
pleadings indicated that was a mistake and it should have said "no voting m=bers"; (3) but the
Hearing Examiner Decision
September 5, 2006
Page6
bylaws provide a vote. Although as seen above, the vote is very limited and provides no control of
this litigation. A series of mistakes was identified by the parties in some of the various filings in
this matter. They do cast a bit ofa shadow over some of the evidence.
So as noted above, if there are a nwnber of other members of ASE, Mr. Nicholson would not
necessarily get to call the shots or "drive" the bus or steer the litigation. But there is no evidence
that even a real majority of ASE's members can do anything to control the course of this appeal.
The bylaws give neither Mr. Nicholson nor any other individual member nor a majority of the
members any right to control the appeal. Since ASE filed an appeal and its attorney continues to
make appearances one has to presume someone or some entity, somewhere is in charge, calls the
shots, directs the flow and pays for the litigation. It is certainly not Mr. Nicholson. He has no vote
on litigation matters nor do any of ASE's "members."
That footer shown above could be somewhat telling in determining who is directing the litigation
on behalf of ASE. Mr. Nicholson's Membership Application has a footer that identifies,
presumably, that document's computer storage origins. The footer line contains the following text:
"C:\DOCUMENTS AND SETTING/PETER/MY
DOCUMENTS/DATA/DOC/WESTFJELD/NON
PROFIT/MEMBERSHJP FORM.DOC"
That footer line would seem to indicate that Westfield's legal business and the ASE association's
litigation might be handled or originate together. It would merge the potential interests of the two.
Again, recall that Westfield is a competitor of the underlying applicant for the land use decisions
being challenged. Or the "footer" could be just one more mistake in the way this matter was
handled by Westfield's and ASE's attorney. It might have been a mistake in how the document was
initially created in whatever word processing software was used. But ASE's attorneys have been
frank. There have been no real attempts to hide the fact that Westfield employs them and actually
pays some of the bills for ASE. But this blending, merging or blmring of the lines of control all
lead to the inevitable question of who controls the litigation and whose interest is being served by
the litigation. The conclusion would appear to be inescapable -Westfield is paying some of the
bills and no one else, neither Mr. Nicholson nor any other individual or majority of ASE has been
identified as being a principle litigant who can direct the litigation of this appeal.
So even if lhis office were to acknowledge that Mr. Nicholson might have standing under this
office's normal inclination to liberally grant standing to an individual who can show some interest
in a matter, Mr. Nicholson did not file the appeal in his own right. Sticking with our transportation
analogy just a bit longer -Mr. Nicholson hitched his cart to the wrong horse and now has no
control or say in this litigation. Mr. Nicholson has no ability to do much in his "non-voting"
capacity as a mere member. But Mr. Nicholson is not alone (if there are other members of ASE) as
no member of ASE or the combined membership of ASE can do anything with this litigation. ll
may be unfortunate to preclude Mr. Nicholson's right to have his standing ascertained or appeal
heard but he tied his rights, if any, to an association that granted him no rights to direct litigation.
He chose that course rather than file an appeal in his own right
9Vl0'd
Hearing Examiner Decision
September 5, 2006
Page 7
While one generally "pierces the corporate veil" to get at underlying persons or assets, it is
generally done so that justice can prevail. Discard the corporate veil in this case and what we find
is a competitor, Westfield Corporation. They own the nearby Southcenter Shopping Center. They
appear to be paying a good portion of the litigation, employ the attorney who is representing ASE
and may have control over the litigation. Although, this office finds no evidence that Westfield
controls the litigation, this office finds that no one really seems to control ASE and the attorneys in
this matter. ASE, again, has no voting members controlling the appeal. The bylaws provide the
ASE membership with a limited range of power and none that go to the heart of who controls this
litigation.
In SODERBERG ADV. v. KENT-MOORE CORP. 11 Wn. App. 721,734,524 P.2d 1355 (1974)
the court found:
" The court could conclude from the evidence here and reasonable inferences
therefrom that KM used its undue domination and control, through KM personnel
with a primary loyalty to KM, to obtain and then avoid payment for essential
services from which KM expected to receive great benefit. The domination was
so complete that "the controlled corporation [had], so to speak, no separate mind,
will or existence ofils own and [was] but a business conduit for its principal." 1
W. Fletcher, Private Corporations § 43, at 205 (perm. ed. rev. 1963). In Seattle
Ass'n of Credit Men v. Daniels, 15 Wn.2d 393,396, 130 P.2d 892 (1942), the court
in discussing the doctrine of disregard quoted the following with approval from
Pittsburgh Reflector Co. v. Dwyer & Rhodes Co., 173 Wash. 552, 555, 23 P.2d 1114
(1933):
"In order to justify the judicial disregard of corporate identities, one, at least, of two
things must clearly appear. Either the dominant corporation must control and use the
other as a mere tool or instrument in Carrying out its own plans and purposes so that
justice requires that it he held liable for the results, or there must he such a confusion
of identities and acts as to work a fraud upon third persons." Even ifboth things must
be shown as suggested in Sonuner v. Yakima Motor Coach Co., 174 Wash. 638, 26
P.2d 92 (1933) (decided prior to Seattle Ass'n of Credit Men v. Daniels, supra), the
court could and did conclude from the evidence that both things had been proved.
Footnote l, supra. See J.l. Case Credit Corp. v. Stark, supra at 475. See also Forest
Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23,29 So. 2d 298 (1947); Linco Servs., Inc.
v. DuPont, 239 Cal. App. 2d 841, 49 Cal. Rptr. 196 (1966); Dillard & Coffin Co. v.
Riclunond Cotton Oil Co., 140 Tenn. 290, 204 S.W. 758 (1918). KM in good conscience
can scarcely complain ifthe trial court determined that to recognize the separate entity
of PK under the peculiar circumstances here would in effect place the court in the untenable
position of assisting in the accomplishment of a breach of duty owing to plaintiff"
As was noted at the hearing, there is clearly no case on point. Most cases declaring an organization
without standing have found that no individual member had sufficient standing on their own right.
Or the claims made on behalf of the association were too personal to the members and could not be
9V80"d
Hearing Examiner Decision
September 5, 2006
Page 8
attached to an association. But those cases that found a lack of standing can still be elucidating.
Here we have an organization in which no member can call the shots.
See, e.g., Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wn.2d 862, 866-67, 576
P.2d 401 (1978); Lujan v. Defenders of Wildlife, 504 U.S. 555,561, 112 S.Ct. 2130, 2136, 119
L.Ed..2d 351 (1992). International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146
Wn.2d 207, 213-14, 45 P.3d 186 (2002); Des Moines Marina Ass'n v. City ofDes Moines, 124 Wn.
App. 282, TIMBERLANE v. BRAME 309 79 Wn. App. 303,901 P.2d 1074.
This office finds that ASE does not have standing. It is a mere shell created by the applicant's
potential competitor, Southcenter/Westfield for the purpose of thwarting a competitor's proposed
development.
This brings us to the standing of PASS. Since the underlying nature of the association was never
challenged nor evidence produced to make it suspect as to its aims, it would appear lhat PASS has
members who individually could have standing and as such, PASS has standing to bring its appeal
or appeals. The two identified members both live close to the proposed project. They could be
affected by the traffic generated by the proposed development They could be affected by the
construction of the project itself. One of them uses a park that could further be affected by
additional residents that would occupy proposed residences. Those interests appear to be within
the zone of interests the appeal provisions were intended to protect. The increased traffic could
slow down their respective commutes, increase roadway congestion and possibly lead to increased
risk of accidents. They could suffer injury in fact. It will be up to the appellants to prove their case
to prevail in obtaining the remedy they seek but lhey have the right to present a case for review.
Jurisdiction to Hearing the Appeal:
Repeating again for clarity, the Hearing Examiner Ordinance in part provides the following
language on appeals:
RMC 4-8-I 10(E)(3)
E APPEALS TO EXAMINER OF ADMINISTRATNE DECISIONS AND
ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000)
9T/60'd
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)
b. Environmental Determinations: Except for permits and variances issued
pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any
proposal or action is granted, conditioned, or denied on the basis of SEPA by
a non-elected official, the decision shall be appcalable to the Hearing
Examiner under the provisions of this Section.
Hearing Examiner Decision
September 5, 2006
Page9
c. Authority: To that end, the Examiner shall have all of the powers of the
office from whom the appeal is taken insofar as the decision on the particular
issue is concemed.
2. Optional Request for Reconsideration: See RMC 4-9-070N. (Ord. 5153, 9-26-2005)
3. Standing:
a. Standing for Filing Appeals of the City's Environmental Determinations:
Appeals from environmental determinations as set forth in subsection El b of
this Section or RMC 4-9-0?0N may be taken to the Hearing Examiner by
any person aggrieved., or by any officer, department, board or bureau of the
City affected by such detennination. Any agency or person may appeal the
City's compliance with chapter 197-11 WAC for issllJlllce of a Threshold
Determination. A person is aggrieved when all of the following conditions
are met: The decision is prejudiced or is likely to prejudice that person; the
person's asserted interests are among those that are required to be considered
by the City when it made its decision; and a decision in favor of that person
would substantially eliminate or redress the prejudice to that person caused
or likely to be caused by the decision; and prejudice means iajury in fact.
(Ord. 3891, 2-25-1985; Ord. 5153, 9-26-2005)
b. Standing for Appeals of Administrative Det=inations 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)
c. Special St.anding Requirements for Appeals of Administrative
Determinations Relative to the Tree Cutting and Land Clearing Regulations:
Any individual or party of record who is adversely affected by such a
decision may appeal the decision to the City's Hearing Examiner pursuant to
the procedures established in this Section. (Ord. 4351, 5-4-1992)
d. Special Standing Requirements for Appeals of Decisions Relating to Master
Site Plans: Any appellant must be seeking to protect an interest that is
arguably within the zone of interest to be protected or regulated by this Title
must allege an injury in fact, and that injury must be real and present rather
than speculative. (Ord. 4551, 9-18-1995)
It appears on the face of the appeal that the action or actions challenged were those of the Director.
Those appear to be the type of decisions that fall within the jurisdiction of the Hearing Examiner.
The appeal of PASS may proceed with the follo\\oing guidance: The party may not challenge the
underlying ordinance (Ordinance 5107) since this office cannot review decisions of the City
Council. The Planned Action and Master Plan decisions of the Director can be challenged.
91'./01 'd
Hearing Examiner Decision
September 5, 2006
Page 10
Decision;
The appeal of ASE is dismissed, as they have no standing.
The appeal of PASS may proceed to arguments on the merits.
ORDER.ED THIS 5th day of September 2006.
Q\~·
FREDJ.KA~ ·~
HEARING EXAMmER
TRANSMITTED TIITS 5th day of September 2006 to the parties of record:
Zanetta Fontes Peter Buck Jerome L. lfillis
Warren Barber & Fontes, P.S.
P0Box626
Renton, WA 98057
Buck & Gordon LLP
2025 First Ave, Suite 5 00
Seattle, WA 98121
Hillis Clark Martin & Peterson, P.S.
500 Galland Building
1221 Second Avenue
Seattle, WA 98101
Brad Nicholson Claudia M. Newman
Bricklin Newman Dold LLP
1001 Fourth Ave., Ste. 3303
Seattle, WA 98154
2811 Dayton Avenue
Renton, WA 98056
King County Journal Newspaper
Attn: Dean Radford
600 Washington Ave S
Kent, WA 98032
Renton Reporter
Attn: Oscar Halpert
PO Box 130
Kent, WA 98032
TRANSMITTED THIS 5th day of September 2006 to the following:
Mayor Kathy Keolker
Jay Covington, CAO
Julia Mcdzegian, Council Liaison
Gregg Zimmerman, PBPW Administrator
Alex Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
King County Journal
9VH"d
Stan Engler, Fire
Larry Meckling, Building Official
Planning Commission
Transportation Division
Utilities Division
Neil Watts, Development Services
Janet Conklin, Development Services
•
Hearing Examiner Decision
September 5, 2006
Page 11
Pursuant to Title N, Chapter 8, Section lOOGofthe City's Code, request for reconsideration
must be filed in writing on or before 5:00 p.m., September 19, 2006. Any aggrieved person
feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of
!aw or fact, error injudgmcnt, or the discovery of new evidence which could not be reasonably
available at the prior hearing may make a written request for a review by the Examiner within
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 foe 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., September 19, 2006.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive
Covenants, the executed Covenants wiU be required prior to approval by Citv Council or
fmal processing of the me. 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 Jand use decisions. Th.is means that parties to a
land use decision may not co=unicate 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.
9Vi:1 "d
PLANNING AND DEVELOPMENT COMMITTEE
COMMITTEE REPORT
March 12, 2007
Appeal by Alliance for South End (ASE)
File No. LUA-05-136, SA-A, SM
1-: :· -·1c'C:'.J BY
C, J c:;:;~CiL
Date j -I;· :J.Ot> 7
I )Director's administrative decision designating the Landing Master Plan Application a Planned
Action; and 2) the Director's Master Site Plan Approval.
Referred to P&D Committee on October 2, 2006
This appeal came before the Planning and Development Committee (the "Committee") on
February 15, 2007. The Committee reviewed the decision of the Hearing Examiner dated
September 5, 2006, which dismissed for lack of standing the ASE appeals from:
I) the Director's designation of the Landing Master Plan application as a Planned Action; and
2) the Director's Master Site Plan approval.
The Committee reviewed the file, including the briefs therein, and heard argument from the
attorneys representing the various parties. Finding no substantial· error in fact or law, the
Committee recommends that the Council affinn the decision of the Hearing Examiner. The
Committee further recommends that the Council adopt the attached Findings and Conclusions
affinning the Examiner's Decision.
Terri Briere, c/iair
Dan Clawson, Vice Chair
Marcie Palmer, Member
cc: Neil Watts
Jennifer Henning
Lawrence J. Warren
Ale" Pit.!k.1,.
FrcJ l<au f1r10.n EXHIBfT ...;;D_
FINDINGS
I. On May 12, 2006, the City of Renton Development Services Division issued a decision
designating Harvest Partners' application for Administrative Master Plan approval as a
Planned Action ("Planned Action Decision").1 The project known as The Landing
involves a mixed-use development proposal including retail, office, entertainment,
restaurant, hotel and/or residential uses with associated parking on former industrial
property located south of Lake Washington.
2. On May 19, 2006, the City of Renton Department of Planning, Building and Public
Works issued a decision approving the Master Site Plan for The Landing ("Master Plan
Approval").2
3. On May I 9, 2006, attorney Peter Buck filed Articles of Incorporation and an Application
to form a Nonprofit Corporation with the Washington Secretary of State to form a new
corporation he called "Alliance for South End" ("ASE"). The Application states that
ASE's Registered Agent is Peter Buck, the sole Director is Peter Buck, and the sole
incorporator is Peter Buck.3
4. On May 25, 2006, Mr. Buck filed an appeal of the Planned Action Decision on behalf of
ASE. In the appeal statement, Mr. Buck states that his law firm represents
WEA Southcenter LLC ("Westfield"), the owner of a competing shopping mall,
Westfield Southcenter. He further states that Westfield is contributing funds for the
appeal.4 Westfield did not deny that it was behind the appeals to protect its economic
interests.5 News articles suggest Westfield's parent company and related entities have
employed similar tactics around the world. 6
5. On May 30, 2006, ASE filed Articles of Amendment with the Secretary of State. The
Articles of Amendment state that qualification for membership in ASE "shall be set out
in the corporation's bylaws." 7 The Articles of Amendment also state: "There are no
1 See Planned Action Decision, attached as Exhibit A to Appeal Statement, May 25, 2006.
2 See Master Plan Approval, attached as Exhibit A to Master Plan Appeal, June I, 2006.
'See Exhibit A to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing,
June 28, 2006.
4 See Appeal Statement, May 25, 2006, at 2.
5 Katy Dickey, a Westfield spokeswoman, stated: "Just as it's Westfield's responsibility to pursue and attract
retail demand and enhance our assets. we have an obligation to our retailers, our shareholders and our customers to
protect them or defend them. We wouldn't be doing our jobs ifwe were not constantly monitoring the market and
assessing potential opportunities as well as potential threats." Craig Harris, Mall Owner Battles Renton Plan,
SEATTLE POST INTELLIGENCER, July 14, 2006, attached as EXHIBIT I to Declaration of Karen Therese, attached as
EXHIBIT A to Applicant's Reply Memorandum to ASE Response on Motion to Dismiss ASE Appeals for Lack of
Standing, July 24, 2006.
6 See Exhibit D to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing,
June 28, 2006.
7 See Exhibit B to Applicant's Motion and Memorandum to Dismiss First ASE Appeal for Lack of Standing,
June 28, 2006.
members as of this date." Mr. Buck signed this document, dated May 25, 2006, as the
Director and President.
6. On June 1, 2006, Mr. Buck filed an appeal of the Master Plan Approval on behalf of
ASE. In this appeal, Mr. Buck again states that his law firm represents Westfield, and
that Westfield is contributing funds for the appeal.8
7. Under the Renton Municipal Code, an appellant must have standing to file an appeal.9
Applicant Harvest Partners and the City filed motions to dismiss the ASE appeals for lack
of standing.
8. In response to the motions, ASE presented evidence of one "member," Brad Nicholson.10
The evidence included a "Membership Application" signed by Mr. Nicholson, and an
unswom declaration from ASE's "Director," Margaret Potter.11 Margaret Potter is a
former employee of Buck & Gordon, the law firm representing Westfield.12 Regarding
the statement to the Office of the Secretary of State that ASE had no members, ASE
stated this was a "scrivener's error," and that the filing instead should have said "There
are no members with voting rights as of this date."13 The ASE Response did not include
ASE's Bylaws or any other corporate records regarding membership in ASE.
9. On the eve of the hearing before the Hearing Examiner regarding ASE's standing, ASE
filed additional documents with the parties and the Examiner. These documents included
a sworn declaration from Mr. Buck, appended to which was an unsigned, undated
"excerpt" from the ASE Bylaws regarding membership in ASE.14 According to Section
1 .2 of the Bylaws excerpt, the members are only given certain limited voting rights, and
"none of the Member (sic) shall have any other rights whatsoever."15
I 0. On August 22, 2006, the parties presented oral arguments on standing and other
jurisdictional issues to the Hearing Examiner.
1 I. On September 5, 2006, the Hearing Examiner issued its decision dismissing the ASE
appeals. According to the decision, 'This office finds that ASE does not have standing.
It is a mere shell created by the applicant's potential competitor, Southcenter/Westfield
for the purpose of thwarting a competitor's proposed development."16
8 See Master Plan Appeal, June I, 2006.
'See RMC 4-9-200.N; RMC 4-8-11 O.E.d.
10 See Appellant Alliance for South End's Response to Applicant's Motions to Dismiss for Lack of Standing,
July I 8, 2006.
11 See Declaration of Margaret E. Potter, attached to Appellant Alliance for South End's Response to
Applicant's Motions to Dismiss for Lack of Standing, July 18, 2006.
12 See Applicant's Reply Memorandum to ASE Response on Motion to Dismiss ASE Appeals for Lack of
Standing, July 24, 2006.
13 Id, at 1f 4.
14 See Declaration of Peter L. Buck, August 18, 2006, at Exhibit A.
IS Id.
16 See Decision of the Hearing Examiner on Matters of Standing and Jurisdiction brought by Attorneys for
Alliance for South End and Progressive Alliance for a Sustainable Southend, September 5, 2006, at 8.
..
CONCLUSIONS
From these Findings, the Committee adopts the following Conclusions:
I. The appellant bears the burden of establishing that it has standing.17 ASE, as the
appellant, has the burden of proof.
2. Standing is jurisdictional.
3. As an association, ASE has the burden of establishing that it has standing to bring these
appeals on behalf of members with standing, or that it has standing on its own behalf.
4. ASE has never asserted that it has standing on its own behalf. Therefore, ASE has the
burden to demonstrate it has standing to bring suit on behalf of its members.
5. Standing should exist as of the time the appeals are filed.18 Developments that occur
following commencement of an action should not be the basis for standing.19 In this
case, there was not only insufficient evidence of standing at the time the appeals were
filed, but also at the close of the record.
6. It is no small matter for an organization to assert the right to sue on behalf of others.
Courts have found that such a right requires the representational relationship to be a
strong one, in order to ensure the fidelity of the organization to those for whom it claims
to speak.20
7. ASE's Articles of Incorporation provide evidence that there were no members at the time
the appeal was filed. ASE claims this was scrivener's error. Even assuming ASE's view
of the evidence, ASE offered evidence of only one member, Mr. Nicholson, who could
not vote and who had no input over the ASE Board, officers, Bylaws, Articles of
Incorporation, or litigation. The member was therefore no different than a mere
bystander. Thus, even if ASE had a member at the time the appeals were filed, ASE has
failed to produce credible evidence to establish that its member guides ASE's actions or
has control over the organization, or that the organization is acting "on behalf' of the
member. Rather, all evidence produced by ASE, including the excerpts from the ASE
Bylaws, suggests the opposite -ASE's member has no meaningful control over the
association.
8. ASE is merely a shell corporation, established solely to delay the development of an
economic competitor. ASE lacks associational standing to bring these appeals.
17 See Concerned Olympia Residenis for the Environment v. City of Olympia, 33 Wn. App. 677, 683, 657 P.2d
790 (1983).
18 See Lujan v. Defenders of Wildlife, 504 U.S. 555,570 n. 5 (!992) ("[S]tanding is to be determined as of the
commencement of the suit"). Appellants must have standing to file an appeal. RMC 4-9-200.N; RMC 4-8-110.E.d.
19 See. e.g., Perry v. Village of Arlington Heights, l 86 F.3d 826, 830 (1999) ("It is not ·enough for [a par1y] to
attempt to satisfy the requirements of standing as the case progresses. The requirements of standing must be
satisfied from the outset ... ").
20 Friends of Tilden Park v. District of Columbia, 806 A.2d 1201, 1209 (D.C. 2002).
SEA 1918819v2 50665-10
Seattle
AMENDED BYLAWS
OF
ALLIANCE FOR SOUTH END
Effective: December 10, 2006
I:. DHBT __
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
AR TI CLE 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 TI CLE 5 Actions by Written Consent ....................................................................................... 7
ARTICLE 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
SEA 1918819v2 50665·10
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 of Incorporation ................................................................ 9
Section 8.6 Amendment of Bylaws ............................................................................................ 9
Section 8.7 Rules of Procedure .................................................................................................. 9
SEA 1918819v2 50665-10
Seattle
11
AMENDED AND RESTATED BYLAWS
OF
ALLIANCE FOR SOUTH END
ARTICLE I
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 al 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);
(t) 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 19188!9v2 50665-10
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
U) any other matters that may properly be presented to the Members for a
vote, pursuant to the corporation's Articles oflncorporation, 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 ofa Member pursuant
to Section 1.1 of these Bylaws. Removal shall require the affirmative vote of three-fourths
(3/4'h') of directors present at a duly held meeting of the board of directors. In the event that any
such termination is contemplated, the board of directors shall notify the Member in a record of
the reasons for the proposed action, and of the time and place of the meeting of the board of
directors at which termination is to be considered, not later than ten (10) days prior thereto. Prior
to the meeting, the subject Member shall be entitled 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.
ARTICLE2
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 I 0:00 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 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 ofregular 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.
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Section 2.4 Quorum. Members holding one-tenth (I/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.
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 number shall have the effect of shortening
the term of any incwnbent. 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
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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 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, 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 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
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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
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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.
ARTICLES
ACTIONS BY \VRITTEN 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
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
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 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.
ARTICLE7
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.
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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.
ARTICLES
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 1918819v2 50665-10
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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 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 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 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 l 0, 2006.
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SEA 19!8819v3 0050665-000010
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AMENDED BYLAWS
OF
ALLIANCE FOR SOUTH END
Effective: February 7, 2007
EXHIBfT_f_
TABLE OF CONTENTS
Page
ARTICLE 1 Membership ............................................................................................................... 1
Section 1.1 Qualifications ........................................................................................................... 1
Section 1.2 Rights ofMembers ................................................................................................... l
Section 1.3 Certificates ofMembership ...................................................................................... 2
Section 1.4 Status ofMembership .............................................................................................. 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 ofMeetings .................................................................................................. .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 ofDirectors ...................................................................................................... 4
Section 3.1 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 ofMeetings ................................................................................................... 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 ................................................................................................ ?
Section 7.2 President.. ................................................................................................................. ?
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 8.1 Fiscal Year ............................................................................................................... 8
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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 ofincorporation ................................................................. 9
Section 8.6 Amendment of Bylaws ............................................................................................ 9
Section 8.7 Rules of Procedure ................................................................................................... 9
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II
AMENDED AND RESTATED BYLAWS
OF
ALLIANCE FOR SOUTHEND
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 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);
(t) 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 );
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(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
(3/4th') 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.
ARTICLE2
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 (1/2) of the
votes entitled to be cast at such a meeting. Upon request by such Members, it shall be the duty
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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 (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 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.
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Section 2.4 Quorum. Members holding one-tenth (1/101h) 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.
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 (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
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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 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
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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
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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.
ARTICLES
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
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 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.
ARTICLE7
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.
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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 ifin 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 l 9 l 88 l 9v3 0050665-000010
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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 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 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.
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"Brad Nicholson, Secretary
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Febroary 22, 2007
DECISION OF THE HEARING EXAMINER ON
MATIERS OF STANDING AND JURISDICTION BROUGHT BY
ATIORNEYS FOR ALLIANCE FOR SOUTH END (ASE) AND
BRAD NICHOLSON, AN INDIVIDUAL
Ths 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
hnpact 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 develoPmCDt 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 cUITent 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, Exarrriner'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 ID.)
EXHIBIT C'=t
• Hearing Examiner's Decision
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 1uly 17, 2006.
The two decisions of the Director were wttelated 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-Cl provisions of the Code.
The decision was made on July 17, 2006 and no direct challenge of that decision was made W1til
the parties filed their letter on August 31, 2006. Tiris 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 docs 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)
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:
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Hearing Examiner's Decision
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 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.
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v Hearing Examiner's Decision
February 22, 2007
Page4of7
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 J. 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
cany 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 nwnber 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 argumeot, 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 Decision
February 22, 2007
Page 5 of?
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 certrin 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 be
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 \llltenable. Such a glaring example might be unfair but it provides a
frame of reference. 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.
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• Hearing Examiner's Decision
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
review.
This office does not have jurisdiction to review the Director's Interpretation.
ORDERED THIS 22nd day of February 2007.
FREDJ. UF
HEARIN
TRANSMITTED THIS 22nd day of February 2007 to the parties of record:
Zanetta F antes Peter Buck Jerome L. Hillis
Warren Barber & Fontes, P.S.
POBox626
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"'1 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
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Hearing Examiner's Decision
February 22, 2007
Page 7 of7
Pursuant to Title IV, Chapter 8, Section 1 OOGof 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. 1bis 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 110, which requires
that such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting
other specified requirements. Copies of this ordinance are available for inspection or purchase in
the Finance Department, first floor of City Hall. An appeal must be fUed In writing on or
before 5:00 p.m., March S. 2007.
H the Examiner's Recommendation or Decision contains the requirement for Restrictive
Covenants, the executed Covenants will be required prior to approval by City Connell or
final processing of the me. Yon 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 ohhis 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.
STA TE OF WASHING TON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Jody L. Barton, being first duly sworn on oath that she is the Legal Advertising
Representative of the
Renton Reporter
a bi-weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a bi-weekly newspaper in King County, Washington. The
Renton Reporter has been approved as a Legal Newspaper by order of the
Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of the
Renton Reporter (and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on April 14, 2007.
The full amount of the fee charged for said foregoing publication is the sum
of$142.80.
~on
i~1 "':dv~rtising Representative, Renton Reporter
ubscribed and sworn to me this 16th day of April, 2007.
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Notary Public for the State of Washington, Residiag in:Went, Washin~n ::
P O Number· · ,-, : NOTARY : :; . . . :. v, ' PUBLIC / 2 -
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NOTICE OF APPEAL HEARING
RENTON HEARING EXAMINER
REN'I'ON,WASHINGTON
A Public Hearing will be held by the
Renton Hearing Examiner in t.he
Council Chambers on the seventh
floor of Renton City Hall, 1055 South
Grady Way, Renton, Washington, on
April 24, 2007 at 9:00 AM to consider
the following petition..-=-:
The Landing Building Permits
BOU0688 &·_ BOG0:-1 1!0 Ap1wa[,;
LlJA07-0:1t, ,\AD & LUA07-0'.11,
A.AD
Location: 1002 Park Avenue N.
Description: Appeal of Building
Permit B060688, Building 200 of
ThB Landing, which is a 18,100
square foot one-Rtory building
located south of N 10th Street
between Logan Avenue N and Park
Avenue N. The appeal contends
that the building permit was issued
enoneously as it is based on a
flawed Master Site Plan approval
and subsequent Site Plan approval.
Appeal of Building Permit B060540
for Buildings 101 and l02 at the
Landing. Building 101 is a 20,400
square foot one-story building and
Building 102 is a 21,000 square foot
one-story building. The buildingo
are attached and are located
northeast of the intersection of
Park Avenue N and N 8th Street.
The appellant contends that the
building permit was issued
erroneously a..;; the approval was
based on a flawed Master Sit-e Plan
approval and subsequent Site Plan
approval.
The hearing on April 21, 2007, is set
for tlw att...-ll"n('.Vi-to agnisi rm tht'
ground rule:,; for twiefing, anrl motion,:,
and si:'tting dates for oral argument on
the motions. NO TESTIMONY will be
taken at thi.-s hearing.
If rhe hC'aring on the pending action
eannot 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 Hearing. 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.
Published in the Renton Reporter
April 14, 2007. #86:1224
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CITY OF RENTON
MAR 1 3 2007
RECEIVED .
GITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
AND/OR
BEFORE THE PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR
In the Matter of the Appeals of )
)
Alliance for South End (ASE) and ) B060688
Brad Nicholson re: )
)
The Building Permit Application Approval for )
Building 200 )
NOTICE OF APPEAL OF
BUILDING PERMIT
APPLICATION APPROVAL _______________ )
I. INTRODUCTION
The Alliance for South End (ASE) and Brad Nicholson ("Appellants") hereby file
this Notice of Appeal of the Building Permit Application Approval for the structure
currently designated as "Building 200" in The Landing's Site Plan, which was approved
by the City's Development Services staff on or about February 27, 2006 (the "Approval,"
attached hereto as Exhibit A). The Approval was based on substantial errors in Jaw and/or
fact, including reliance on a flawed Master Plan and Site Plan, violations of the City's
Permit Classification and Review ordinance, and violations of the City's Site
Development Plan Review ordinance, as set forth in further detail below.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -I
Y:\WPIASEIBUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 03 I 307
FINAL.DOC
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Buck 0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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II. TIMELINESS AND JURISDICTION
This appeal is filed with the Hearing Examiner pursuant to Renton Municipal
Code (RMC) 4-8-11 O.E, specifying a 14-day appeal period for administrative decisions.
This appeal is also filed with the Planning/Building/Public Works Administrator pursuant
to RMC 4-5-050.D.4, which states that "[t]he Appeals Board for purposes of Section 112
of the International Building Code shall be the Planning/Building/Public Works
Administrator or his/her designee."
III. STANDING
A. ASE Standing
Appellant ASE is a Washington nonprofit corporation established to advance its
members' interests in Renton's environment, land use planning, and governmental and
fiscal integrity. ASE's membership is made up of Renton citizens who are directly
impacted by The Landing project in their daily activities.
ASE'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, by 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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -2
Y:IWPIASEIBUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Buck@ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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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.
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 City's Site Development
Plan Review ordinance, the City's Permit Classification and Review Ordinance, the State
Environmental Policy Act (SEP A) and Renton's SEP A ordinance ( discussed in the Master
Plan and Site Plan appeals), and the International Building Code; 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,
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -3
Y:\WPIASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Buck@Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 9812i-3140
(206) 382-9540
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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 m 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.
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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -4
Y:\WPIASE\BUILDING PERMITSINOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Buck 0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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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 ASE'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 City's Site Development Review
ordinance, the City's Permit Classification and Review Ordinance, SEPA and Renton's
SEPA ordinance, and the International Building Code; 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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -5
Y:\WP\ASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Buck~Gordon LLP
2025 Fir5t Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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hearing on the Director's decisions approving The Landing project, and the
Director's illegal designation of The Landing Master Site Plan as a "Planned
Action," Nicholson is already suffering hann from an inability to participate and
voice objections to the City Hearing Examiner and the City Council. 1
IV. GROUNDS FOR APPEAL
A building permit is void if issued in violation of any provision of the RMC.
Section 105.4 of the International Building Code, adopted by reference in RMC 4-5-050,
provides as follows:
The issuance or granting of a permit shall not be construed
to be a permit for, or an approval of, any violation of any of
the provisions of this code or of any other ordinance of the
jurisdiction. Permits presuming to give authority to violate
or cancel the provisions of this code or other ordinances of
the jurisdiction shall not be valid.
As discussed below, the City's Approval of the Building Permit Application for Building
200 presumed to give authority to violate numerous provisions of the RMC. Therefore, the
Approval and the building permits it purports to authorize are invalid.
A. The Approval Relied on a Flawed Master Plan and Site Plan.
The Approval necessarily relied on the Master Plan approval dated May 19, 2006,
and the Site Plan approval dated August 17, 2006. RMC 4-9-200.B(l)(a) provides that
"[n]o Site Plan Review within an area shall be approved until such time as a Master Plan
is approved for the same area." Similarly, RMC 4-9-200.B(2) provides that "[n]o building
permit shall be issued for any use requiring Site Plan Review pursuant to this Section until
25 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 BUILDING PERMIT
APPLICATION APPROVAL -6
V,\WP\ASEIBUILDING PERMITS\NOT!CE OF BlJILDING PERMIT APPEAL 031307
FINAL.DOC
Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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the Reviewing Official has approved, or approved with conditions, the Site Plan
application."
The Director's Master Plan and Site Plan approvals were erroneous, for the
reasons discussed in the Master Site Plan appeal, Planned Action Appeal, Site Plan
Appeal, and Appeal of Administrative Interpretation/Policy Decision filed by the
Appellants, and their pleadings in those appeals, all of which are incorporated herein by
this reference. 2 The Building Permit Application for Building 200 cannot be approved
until the City corrects the errors in the Master Plan and Site Plan approvals for The
Landing.
B. The Approval Violated Procedural Requirements of the City's Permit
Classification and Review Ordinance (RMC 4-8-080).
The Approval failed to comply with the procedures prescribed in RMC 4-8-080.
As was the case with the City's processing of the Site Plan for The Landing, the Hearing
Examiner was the appropriate official to review and take action on the Building Permit
Application for Building 200. By processing the Application at the staff level, the City
violated RMC 4-8-080.
The City should have processed the Application using the procedures set forth in
RMC 4-8-080 for Type VI permits, which are reviewed and approved by the Hearing
Examiner. See RMC 4-8-080.G (Land Use Permit Procedures -Type VI). RMC 4-8-
070.H(l) provides that the Hearing Examiner "shall review and act on ... [b Juilding
2 See appeal statements and related pleadings, under Master Site Plan Appeal and Planned Action Appeal
(LUA-05-136, SA-A, SM); Site Plan Appeal and Appeal of Administrative Interpretation/Policy Decision
(LUA-06-071, SA-A).
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -7
Y:\WPIASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Buck 0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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permits submitted in conjunction with any of the above," including "[s]ite plan approvals
requiring a public hearing." RMC 4-8-070.H(l)(q),(n). A public hearing before the
Hearing Examiner was required by RMC 4-9-200.D for The Landing's Site Plan because
the project exceeds the thresholds for "Large Project Scale" in RMC 4-9-200.D(2)(b).3
Therefore, the Hearing Examiner should have reviewed the Building Permit Application
for Building 200. Instead of following the correct procedures, the City has processed the
Application using the procedures set forth for either Type I or Type III building permits,
which are reviewed and approved by staff. See RMC 4-8-080.G.
C. The Approval Violated the City's Site Development Plan Review Ordinance
(RMC 4-9-200).
The Approval violated several procedural and substantive provisions of the City's
Site Development Plan Review (SDPR) ordinance, including but not limited to the
following
• The City's issuance of building permits while the Appellants' Site Plan appeal is
pending constitutes an immediate and ongoing procedural violation of the SDPR
Ordinance. 4 RMC 4-9-200.K provides that "[b ]uilding permits shall not be issued
until the appeal period for an approved site development plan has expired." The
policy behind this provision is obvious and eminently sensible: building permits
3 A public hearing is also required because there are significant unresolved concerns about the proposal.
RMC 4-9-200.D(2)(a).
4 On August 31, 2006, Appellants filed an appeal of the Administrative Site Plan Approval for The Landing
issued by the City's Development Services Director on August 17, 2006, and a related appeal of the
Interpretation/Policy Decision issued by the City's Development Services Director on July 17, 2006. See
appeal statements and related pleadings, under Site Plan Appeal and Appeal of Administrative
Interpretation/Policy Decision (LUA-06-071, SA-A). These appeals are currently pending before the
Hearing Examiner. The Approval of the building permit for Building 200 was issued in February of 2006,
while these appeals were still pending.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -8
Y:\WPIASE\BUILDrNG PERMITS\NOTICE OF BUILDING PERMIT APPEAL 03 I 307
FrNAL.DOC
Buck® Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206} 382-9540
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Ill/
Ill/
Ill!
Ill//
should not be issued until all appeals have been exhausted. Otherwise, construction
may commence on structures that will ultimately be found to be illegal.
• Building 200 does not conform to Renton's land use regulations.5 For example,
RMC 4-3-100.F(4)(b)(ii) prohibits surface parking driveways on pedestrian-
oriented streets the Urban Center -North I (UC-NI) zone. North 101h Street is a
pedestrian-oriented street. 6 Immediately adjacent to the east fai;ade of Building
200, however, is a surface parking driveway allowing vehicular access to North
I 01h Street. The orientation of Building 200 also appears to violate RMC 4-3-
100.F(l )(b) l, which provides that "[n]o 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 driveway shown on the Site Plan and other plans submitted
by the applicant for the Building Permit Application is in gross violation of these
provisions. 7
5 RMC 4-9-200.E(l)(b) provides that Site Plans must conform to existing land use regulations.
6 See Appellants' Reply Brief Regarding Motion to Remand Site Plan Approval at Section II.A incorporated
by reference herein.
7 To the extent that staffis relying on the modification of vehicular access requirements contained within the
Administrative Site Plan Approval issued by the Director on August 17, 2006, this project does not comply
with the criteria established the RMC 4-9-250.D modification requirements. Appellants have separately
briefed the Director's failure to meet the modification procedural and substantive requirements, which has
been incorporated above by reference. See Appellants' Reply Brief Regarding Motion to Remand Site Plan
Approval at Section 11.D.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -9
Y:\WPIASEIBUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
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Bucke Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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IV. CONCLUSION
For the reasons stated above, Appellants respectfully request that the Hearing
Examiner remand the '.:Beoval for further proceedings.
Dated this \ 11~; of March, 2007.
/' ,
BUCK&(GO
\
,, .-t--1--.L
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL-JO
Y:\WPIASEIBUILDING PERMITSINOTICEOF BUILDING PERMIT APPEAL031307
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Buck~ Gordon LLP
2025 First Avenue, Suite 500
Seattie, WA 98121-3140
(206) 382-9540
..
EXHIBIT A
The Approval
(SCANNED FROM OVERSIZED PLAN SHEET FOR APPLICATION NO. 8060688)
FILE COPY
I understand that the plan check approvals are sub·
tact to errors and omissions and approval of plans
does not authorize the violation of any adopted code
or ordinance. Receipt of contractor'11 copy of ap·
proved plans acknowledged.
BY~~~~~~~~~~ ~ DATE~--:::::-~--,--:;:::;:-:;:-~
PermltNo. ~fr'
P8PW2-0II lQ/119
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CITY OF RENTON
MAR 1 3 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) 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
17 I hereby certify that, on March 13, 2007, I caused to be served the foregoing NOTICE OF
18 APPEAL OF BUILDING PERMIT APPLICATION APPROVAL and this CERTIFICATE OF
19 SERVICE by hand delivery to:
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Ms. Bonnie Walton, City Clerk
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
D Via Facsimile
D Via Email
II: Via Hand Delivery
0 Via U.S. Mail
CERTIFICATE OF SERVICE-1
Mr. Jerome Hillis
Hillis Clark Martin & Peterson
1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
D Via Facsimile
D Via Email
II: Via Hand Delivery
D Via U.S. Mail
Buck0 Gordon LLP
Y:IWPIASE\SITE PLAN AJ'.iq,:AL\CERTIFICATE OF SERVICE.2007.00C
{t' ; ,f-r'{ LI '.'I H'ff'-j
2025 First Avenue, Suite 500
Seattle, WA 98121
.4'V. WJ !)i:fyv ')l'°'f_v,u, ;);. ,c, 11,-
1) \;1/ C, . C U'X1:'.'._ -· -I c-v-. , . , _).l J l.,c'v, '-,<c"rv 1t,_ -;
(206) 382-9540
'
1 Ms. Ryan Durkan
Hillis Clark Martin & Peterson
2 1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
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D
D
lffl
D
Via Facsimile
Via Email
Via Hand Delivery
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
lffl Via Hand Delivery
D Via U.S. Mail
Mr. Lawrence 1. Warren
Renton City Attorney
Warren, Barber, & Fontes
100 S. Second Street
Renton, WA 98057
D
D
lffl
D
Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
Mr. Fred Kaufinan, Hrg Examiner ( c/o Ms.
Bonnie Walton, City Clerk)
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
D Via Facsimile
D Via Email
lffl Via Hand Delivery
D Via U.S. Mail
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12 Subscribed to under penalty of perjury under the laws of the State of Washington this 13th
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day of March, 2007 in Seattle, Washington. /! . l
~~1i,.su~
Lyifae M. Overlie
CERTIFICATE OF SERVICE-2
Y:\WP\ASEISITE PLAN APPEAL\CERTIFICATE OF SERVICE.2007.00C
Buck!;!i Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
D Cash
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, WA 98055
425-430-6510
1:9 Check No. .j ,, . ';·., <
Description: ' . . . I 1· ; ; 11 )( ( ! f
( .
, ; I
Funds Received From:
Name
' .. : : I /
D Copy Fee
CJ Appeal Fee
1.J,
Receipt N~ 0798
Date_...,_ ______ _
D Notary Service
D __________ _
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Buck Gordon LLP
Attorn('ys at I ,1w
CITY c.JF RENTON
MAR 13 2007
;:)L) hr,; Pw•·· '"'· S"n, :,();)
~,(),Jt1i,,. '."tJ/l, ''"'1?1 3 1,jQ RECEIVED
CITY CLERK'S OFFICE
1,· {},2 ;1m
MR. FRED KAUFMAN, HEARING EXAMINER
C/0 MS. BONNIE WALTON
CITY CLERK
CITY OF RENTON
1055 SOUTH GRADY WAY
RENTON, WA 98055
I I, I 1. I .. I .II ... 1l ,I .. I ,I 11, I I ,I
CITY OF RENTON
MAR 2 1 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
AND/OR
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BEFORE THE PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR
In the Matter of the Appeals of
Alliance for South End (ASE) and Brad
Nicholson re:
No. B060688
NOTICE OF APPEARANCE RE
BUILDING PERMIT APPLICATION
APPROVAL The Building Permit Application Approval
for Building 200
15 TO:
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FRED KAUFMAN, City of Renton Hearing Examiner
CITY CLERK, City of Renton
PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR,
City of Renton
APPELLANTS ALLIANCE FOR THE SOUTH END (ASE) AND BRAD
NICHOLSON, by and through their attorneys, BUCK & GORDON LLP and
PETER L. BUCK
LAWRENCE J. WARREN. Renton City Attorney
23 Applicant Harvest Partners hereby make appearance in the above-entitled action by
24 and through the undersigned attorneys, and hereby request that service of all further pleadings
25 and papers in this cause, except original process, be made upon the undersigned attorneys at
26 their address below stated.
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Notice of Appearance -Page I of 3
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623. 7789
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DATED this 15 1h day of March, 2007.
Notice of Appearance -Page 2 of 3
HILLIS CLARK MARTIN &
PETERSON, P.S.
By 1
Jerome L. illis, WSB # 1704
T. Ryan Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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CERTIFICATE OF SERVICE
1, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson,
P .S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 9810 I. I hereby certify that
on the ~-I'-day of March 2007, I caused to be delivered by U.S. Mail a true and correct
copy of Applicant Harvest Partners(/) Notice of Appearance Re Building Permit
Application Approval for Building 200; and (2) this Certificate of Service to the following:
Mr. Fred Kaufman, Hearing Examiner
City of Renton
I 055 South Grady Way, 7'11 Floor
Renton, WA 98055
Planning/Building/Public Works
Administrator
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
Lawrence J. Warren, City Attorney
Warren Barber & Fontes, P.S.
I 00 South Second Street
Renton, WA 98057
Office of the Clerk
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
DA TED this 2-o*' day of March. 2007.
#349498 18449·004 7h_@O tt .doc 3/20/07
Notice of Appearance -Page 3 of 3
IIILLIS CLARK MARTIN &
PETERSON, P.S.
Gina C. Pan
Legal Assistant to T. Ryan Durkan
HILLIS CI.ARK MARTIN &
PETERSON, P. S.
500 Galland Building, 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623. 7789
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
AND/OR
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BEFORE THE PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR
In the Matter of the Appeals of
Alliance for South End (ASE) and Brad
Nicholson re:
No. B060688
NOTICE OF APPEARANCE RE
BUILDING PERMIT APPLICATION
APPROVAL The Building Permit Application Approval
for Building 200
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FRED KAUFMAN, City of Renton Hearing Examiner
CITY CLERK, City of Renton
PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR,
City of Renton
APPELLANTS ALLIANCE FOR THE SOUTH END (ASE) AND BRAD
NICHOLSON, by and through their attorneys, BUCK & GORDON LLP and
PETER L. BUCK
LAWRENCE J. WARREN, Renton City Attorney
23 Applicant Harvest Partners hereby make appearance in the above-entitled action by
24 and through the undersigned attorneys, and hereby request that service of all further pleadings
25 and papers in this cause, except original process, be made upon the undersigned attorneys at
26 their address below stated.
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Notice of Appearance -Page 1 of 3 CQp_y
·--.. ' . . -.
HILLIS CLARK MAR TIN &
PETERSON, P.S.
500 Galland Building, 1221 Second Ave
Sealtle WA 98101-2925
206.623.1745; fax 206.623.7789
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DATED this 15 1h day of March, 2007.
Notice of Appearance -Page 2 of 3
HILLIS CLARK MARTIN &
PETERSON, P.S.
By l
Jerome L. illis, WSB # 1704
T. Ryan Durkan, WSBA #11805
Karen D. Breckenridge, WSBA #36666
Attorneys for Applicant Harvest Partners
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building. 1221 Second Ave
Seattle WA 98101-2925
206.623.1745; fax 206.623.7789
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CERTIFICATE OF SERVICE
I, Gina C. Pan, am a legal assistant for the law firm of Hillis Clark Martin & Peterson,
P.S., 500 Galland Building, 1221 Second Avenue, Seattle, WA 98101. I hereby certify that
on the i.~ day of March 2007, I caused to be delivered by U.S. Mail a true and correct
copy of Applicant Harvest Partners (1) Notice of Appearance Re Building Permit
Application Approval for Building 200; and (2) this Certificate of Service to the following:
Mr. Fred Kaufman, Hearing Examiner
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
Planning/Building/Public Works
Administrator
City of Renton
l 055 South Grady Way, 7th Floor
Renton, WA 98055
Lawrence J. Warren, City Attorney
Warren Barber & Fontes, P.S.
100 South Second Street
Renton, WA 98057
Office of the Clerk
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
Peter L. Buck
Buck & Gordon, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
DATED this 2.o""" day of March, 2007.
#349498 18449-004 7h_@Oll.doc 3/20/07
Notice of Appearance -Page 3 of 3
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
HCMP
HILLIS
CLARK
MAR[lN&
p I I I IZ\llN
;., '. ,,///, ,·.,
SOU GJlland 8uilrling
1221 Sewnd Avenue
Seattle, Washington
98101-2925
A PROFESSIONAL SERVICE CORPORATION
Office of the Ckrk
Citv of Renton
1055 South Grady Wa), 7th Floor
Renton, WA 98055
' C.,
~~0~<~~2~2-~~ co•~ 11,1,, I,, I ,II,", I ,I, I," I, ,11,,, I, I,, 11,, ,I, I, I, I,, I, I,,,, 111
• ,.
COMMENCING AT 9:00 AM,
CITY OF RENTON
HEARING EXAMINER
PUBLIC HEARING
April 24, 2007
AGENDA
COUNCIL CHAMBERS, 7TH FLOOR, RENTON CITY HALL
The application(s) listed are in order of application number only and not necessarily the order in which they will be
heard. Items will be called for hearing al the discretion of the Hearing Examiner.
PROJECT NAME: The Landing Building Permit 6060688 Appeal
PROJECT NUMBER: LUA-07-031, AAD
PROJECT DESCRIPTION: Appeal of Building Permit 6060688, Building 200 of The Landing, which
is a 18,100 square foot one-story building located south of N 10th Street between Logan Avenue N
and Park Avenue N. The appeal contends that the building permit was issued erroneously as it is
based on a flawed Master Site Plan approval and subsequent Site Plan approval.
PROJECT NAME: The Landing Building Permit 8060540 Appeal
PROJECT NUMBER: LUA-07-037, AAD
PROJECT DESCRIPTION: Building 101 is a 20,400 square foot one-story building and Building 102
is a 21,000 square foot one-story building. The buildings are attached and are located northeast of
the intersection of Park Avenue N and N 8th Street. The appellant contends that the building permit
was issued erroneously as the approval was based on a flawed Master Site Plan approval and
subsequent Site Plan approval.
HEX Agenda 4-24-07.doc
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CITY OF RENTON
MAR 1 3 2007
RECEIVED _
Gl"TY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
AND/OR
BEFORE THE PLANNING/BUILDING/PUBLIC WORKS ADMINISTRATOR
In the Matter of the Appeals of )
)
Alliance for South End (ASE) and ) B060688
Brad Nicholson re: )
)
The Building Permit Application Approval for )
Building 200 )
NOTICE OF APPEAL OF
BUILDING PERMIT
APPLICATION APPROVAL
--------------~)
I, INTRODUCTION
The Alliance for South End (ASE) and Brad Nicholson ("Appellants") hereby file
this Notice of Appeal of the Building Permit Application Approval for the structure
currently designated as "Building 200" in The Landing's Site Plan, which was approved
by the City's Development Services staff on or about February 27, 2006 (the "Approval,"
attached hereto as Exhibit A). The Approval was based on substantial errors in law and/or
fact, including reliance on a flawed Master Plan and Site Plan, violations of the City's
Permit Classification and Review ordinance, and violations of the City's Site
Development Plan Review ordinance, as set forth in further detail below.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL-I
Y:\WPIASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
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Bucke Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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II. TIMELINESS AND JURISDICTION
This appeal is filed with the Hearing Examiner pursuant to Renton Municipal
Code (RMC) 4-8-110.E, specifying a 14-day appeal period for administrative decisions.
This appeal is also filed with the Planning/Building/Public Works Administrator pursuant
to RMC 4-5-050.D.4, which states that "[t]he Appeals Board for purposes of Section 112
of the International Building Code shall be the Planning/Building/Public Works
Administrator or his/her designee."
III. STANDING
A. ASE Standing
Appellant ASE is a Washington nonprofit corporation established to advance its
members' interests in Renton' s environment, land use planning, and governmental and
fiscal integrity. ASE's membership is made up of Renton citizens who are directly
impacted by The Landing project in their daily activities.
ASE'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, by 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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -2
Y:\WPIASEIBUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL031307
FINAL.DOC
Buck0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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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.
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 City's Site Development
Plan Review ordinance, the City's Permit Classification and Review Ordinance, the State
Environmental Policy Act (SEPA) and Renton's SEPA ordinance (discussed in the Master
Plan and Site Plan appeals), and the International Building Code; 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 storm water 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,
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -3
Y:\WP\ASE\BUILDING PERMITSINOTICE OF BUILDING PERMIT APPEAL OJ 1307
FINAL.DOC
Buck 0 Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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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 m 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.
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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -4
Y:\ WPIASEIBUILDING PERMITSINOTICE OF BUILDING PERMIT APPEAL 031307
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Buck@ Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
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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 ASE'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 City's Site Development Review
ordinance, the City's Permit Classification and Review Ordinance, SEPA and Renton's
SEPA ordinance, and the International Building Code; 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
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -5
Y-.\WPIASEIBUILDING PERMITS\NOTICEOF BUILDING PERMIT APPEAL031307
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Buck0Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
{206) 382-9540
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hearing on the Director's decisions approving The Landing project, and the
Director's illegal designation of The Landing Master Site Plan as a "Planned
Action," Nicholson is already suffering harm from an inability to participate and
voice objections to the City Hearing Examiner and the City Council.1
IV. GROUNDS FOR APPEAL
A building permit is void if issued in violation of any provision of the RMC.
Section 105.4 of the International Building Code, adopted by reference in RMC 4-5-050,
provides as follows:
The issuance or granting of a permit shall not be construed
to be a permit for, or an approval of, any violation of any of
the provisions of this code or of any other ordinance of the
jurisdiction. Permits presuming to give authority to violate
or cancel the provisions of this code or other ordinances of
· the jurisdiction shall not be valid.
As discussed below, the City's Approval of the Building Permit Application for Building
200 presumed to give authority to violate numerous provisions of the RMC. Therefore, the
Approval and the building permits it purports to authorize are invalid.
A. The Approval Relied on a Flawed Master Plan and Site Plan.
The Approval necessarily relied on the Master Plan approval dated May 19, 2006,
and the Site Plan approval dated August 17, 2006. RMC 4-9-200.B(l)(a) provides that
"[n]o Site Plan Review within an area shall be approved until such time as a Master Plan
is approved for the same area." Similarly, RMC 4-9-200.B(2) provides that "[n]o building
permit shall be issued for any use requiring Site Plan Review pursuant to this Section until
25 1 In addition, as a member of ASE, Nicholson is injured in the manner set forth in section Ill.A above.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -6
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Seattle, WA 98121-3140
(206) 382-9540
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the Reviewing Official has approved, or approved with conditions, the Site Plan
application."
The Director's Master Plan and Site Plan approvals were erroneous, for the
reasons discussed in the Master Site Plan appeal, Planned Action Appeal, Site Plan
Appeal, and Appeal of Administrative Interpretation/Policy Decision filed by the
Appellants, and their pleadings in those appeals, all of which are incorporated herein by
this reference. 2 The Building Permit Application for Building 200 cannot be approved
until the City corrects the errors in the Master Plan and Site Plan approvals for The
Landing.
B. The Approval Violated Procedural Requirements of the City's Permit
Classification and Review Ordinance (RMC 4-8-080).
The Approval failed to comply with the procedures prescribed in R'.MC 4-8-080.
As was the case with the City's processing of the Site Plan for The Landing, the Hearing
Examiner was the appropriate official to review and take action on the Building Permit
Application for Building 200. By processing the Application at the staff level, the City
violated RMC 4-8-080.
The City should have processed the Application using the procedures set forth in
RMC 4-8-080 for Type VI permits, which are reviewed and approved by the Hearing
Examiner. See RMC 4-8-080.G (Land Use Permit Procedures -Type VI). RMC 4-8-
070.H(l) provides that the Hearing Examiner "shall review and act on . . . [b ]uilding
2 See appeal statements and related pleadings, under Master Site Plan Appeal and Planned Action Appeal
(LUA-05-136, SA-A, SM); Site Plan Appeal and Appeal of Administrative Interpretation/Policy Decision
(LUA-06-071, SA-A).
NOTICE OF APPEAL OF BUILDING PERMIT
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permits submitted in conjunction with any of the above," including "[ s Jite plan approvals
requiring a public hearing." RMC 4-8-070.H(l)(q),(n). A public hearing before the
Hearing Examiner was required by RMC 4-9-200.D for The Landing's Site Plan because
the project exceeds the thresholds for "Large Project Scale" in RMC 4-9-200.D(2)(b).3
Therefore, the Hearing Examiner should have reviewed the Building Permit Application
for Building 200. Instead of following the correct procedures, the City has processed the
Application using the procedures set forth for either Type I or Type III building permits,
which are reviewed and approved by staff. See RMC 4-8-080.G.
C. The Approval Violated the City's Site Development Plan Review Ordinance
(RMC 4-9-200).
The Approval violated several procedural and substantive provisions of the City's
Site Development Plan Review (SDPR) ordinance, including but not limited to the
following
• The City's issuance of building permits while the Appellants' Site Plan appeal is
pending constitutes an immediate and ongoing procedural violation of the SDPR
Ordinance. 4 RMC 4-9-200.K provides that "[b Juilding permits shall not be issued
until the appeal period for an approved site development plan has expired." The
policy behind this provision is obvious and eminently sensible: building permits
3 A public hearing is also required because there are significant unresolved concerns about the proposal.
RMC 4-9-200.D(2)(a).
4 On August 31, 2006, Appellants filed an appeal of the Adminislrative Site Plan Approval for The Landing
issued by the City's Development Services Director on August 17, 2006, and a related appeal of the
Interpretation/Policy Decision issued by the City's Development Services Director on July 17, 2006. See
appeal statements and related pleadings, under Site Plan Appeal and Appeal of Adminislrative
Interpretation/Policy Decision {LUA-06-071, SA-A). These appeals are currently pending before the
Hearing Examiner. The Approval of the building permit for Building 200 was issued in February of 2006,
while these appeals were still pending.
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/Ill
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should not be issued until all appeals have been exhausted. Otherwise, construction
may commence on structures that will ultimately be found to be illegal.
• Building 200 does not conform to Renton's land use regulations.5 For example,
RMC 4-3-100.F(4)(b)(ii) prohibits surface parking driveways on pedestrian-
oriented streets the Urban Center -North I (UC-NI) zone. North 10th Street is a
pedestrian-oriented street. 6 Immediately adjacent to the east fa~ade of Building
200, however, is a surface parking driveway allowing vehicular access to North
10th Street. The orientation of Building 200 also appears to violate RMC 4-3-
100.F(l )(b)l, which provides that "[n]o 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 driveway shown on the Site Plan and other plans submitted
by the applicant for the Building Permit Application is in gross violation of these
provisions. 7
5 RMC 4-9-200.E(l)(b) provides that Site Plans must conform to existing land use regulations.
6 See Appellants' Reply Brief Regarding Motion to Remand Site Plan Approval at Section ILA incorporated
by reference herein.
7 To the extent that staff is relying on the modification of vehicular access requirements contained within the
Administrative Site Plan Approval issued by the Director on August 17, 2006, this project does not comply
with the criteria established the RMC 4-9-250.D modification requirements. Appellants have separately
briefed the Director's failure to meet the modification procedural and substantive requirements, which has
been incorporated above by reference. See Appellants' Reply Brief Regarding Motion to Remand Site Plan
Approval at Section II.D.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -9
Y:IWPIASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINAL.DOC
Bucko Gordon LLP
2025 First Avenue, Suite 500
Seattle, WA 98121-3140
1206) 382-9540
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IV. CONCLUSION
For the reasons stated above, Appellants respectfully request that the Hearing
Examiner remand the ~oval for further proceedings.
Dated this J.21~; of March, 2007.
NOTICE OF APPEAL OF BUILDING PERMIT
APPLICATION APPROVAL -I 0
Y:\WP\ASE\BUILDING PERMITS\NOTICE OF BUILDING PERMIT APPEAL 031307
FINALDOC
Buck0Gordon LLP
2()25 First Avenue, Suite 500
Seattle, WA 98121-3140
(206) 382-9540
EXHIBIT A
The Approval
(SCANNED FROM OVERSIZED PLAN SHEET FOR APPLICATION NO. B060688)
FILE COPY
I understand that the plan check approvals are sub-
iect to enors and omissions and approval of plans
doa& not authorize the violation of any adopted code
or ordlnaru:e. Receipt of contractor's copy Qf ap·
proved pla.ns acknowledged.
BY_~~~~~~~~~ e DATE---,-------:;:-:;-::--
P0<mit No. ~fg-:
PBPw:.1.04 10/ll9
APPROVAL SHALL NOT BE CONSTRUED
AS THE AUTHORITY TO VIOLATE OR
CANCEL ANY PROVISIONS OF CODES
ORDINANCES, OR OTHER REGULATIONS
ENFO ED Y THIS CITY
DAT 'Z,7. 0 APPROVED C7
PERIIIIIT# "'~ ~
l'BPW;z-05 10/99
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CITY OF RENTON
MAR 1 3 2007
RECEIVED
CITY CLERK'S OFFICE
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
In the Matter of the Appeals of
Alliance for South End (ASE) re:
The Director's Administrative Decision
Designating The Landing Master Plan
Application a Planned Action
The Director's Master Site Plan Approval
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) _______________ )
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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
17 I hereby certify that, on March 13, 2007, I caused to be served the foregoing NOTICE OF
18 APPEAL OF BUILDING PERMIT APPLICATION APPROVAL and this CERTIFICATE OF
19 SERVICE by hand delivery to:
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Ms. Bonnie Walton, City Clerk
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
D Via Facsimile
D Via Email
1111 Via Hand Delivery
D Via U.S. Mail
CERTIFICATE OF SERVICE -I
Mr. Jerome Hillis
Hillis Clark Martin & Peterson
1221 Second A venue, Suite 500
Seattle, WA 98101-2925
D Via Facsimile
D Via Email
• Via Hand Delivery
D Via U.S. Mail
Buck t;, Gordon LLP
Y:\WP\ASE\SITE P. LAN AJ'.VfAL\CERTIFICATE OF SERVICE.2007.DOC
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2025 First Avenue, Suite 500
Seattle, WA 98121
(206) 382-9540
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I Ms. Ryan Durkan
Hillis Clark Martin & Peterson
2 1221 Second Avenue, Suite 500
Seattle, WA 98101-2925
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D
D
Ill
D
Via Facsimile
Via Email
Via Hand Delivery
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 Ill Via Hand Delivery
D Via U.S. Mail
Mr.LawrenceJ. Warren
Renton City Attorney
Warren, Barber, & Fontes
100 S. Second Street
Renton, WA 98057
D
D
Ill
D
Via Facsimile
Via Email
Via Hand Delivery
Via U.S. Mail
Mr. Fred Kaufman, Hrg Examiner (c/o Ms.
Bonnie Walton, City Cleik)
City of Renton
1055 South Grady Way, 7th Floor
Renton, WA 98055
D Via Facsimile
D Via Email Ill Via Hand Delivery
D Via U.S. Mail 10
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12 Subscribed to under penalty of perjury under the laws of the State of Washington this 13th
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day of March, 2007 in Seattle, Washington. V) II ~~/~\.
L e M. Overlie
CERTIFICATE OF SERVICE-2 Buck 0 Gordon LLP
Y:\WP\ASE\SITE PLAN APPEAL\CERTIFICA TE OF SERVICE.2007.DOC 2025 First Avenue, Suite 500
Seattle, WA 96121
(206) 382-9540
D Cash
CITY OF RENTON
City Clerk Division
1055 South Grady Way
Renton, WA 98055
425-430-6510
[}) Check No. :J / ,?_s; .:$
Description: /I ' 'L ''/}'((.• . ((
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Funds Received From:
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CITY OF RENTON
MAR 13 2007
;,JL'., f.-·cs\ AsL··ou~-Sc,,t,• JJ()
'.;c,,trk·. 'NA 9C1~'1 _)Ii-~, RECEIVED
CITY CLERK'S OFFICE
/· (},? f lYI
MR. FRED KAUFMAN, HEARING EXAMINER
C/0 MS. BONNIE WALTON
CITY CLERK
CITY OF RENTON
1055 SOUTH GRADY WAY
RENTON, WA 98055
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