HomeMy WebLinkAboutQuadrant's Request for Reconsideration1
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF RENTON
In the Matter of:
SOLERA MASTER PLAN,
A Master Plan, Preliminary Plat, Conditional
Use and Street Modification Decision
CITY OF RENTON
DEC 212018
RECEIVED
CITY CLERK'S OFFICE
Hearing Examiner File:
APPLICANT QUADRANT
CORPORATION'S MOTION FOR
RECONSIDERATION
I. INTRODUCTION
The Quadrant Corporation ("Quadrant") is seeking approval of a Master Site Plan,
Preliminary Plat, Conditional Use Permit, and Street Modification applications for a proposed
mixed -use development consisting of approximately 673 multi -family residential units and
39,000 square feet of commercial space located on a 10.8-acre site at 2902 NE Sunset Blvd. in
the City of Renton ("Project").
As required by the Renton Municipal Code ("RMC"), the City's Hearing Examiner held
an open record hearing on November 27, 2018, after which it issued a decision ("Decision")
approving the applications, subject to 32 conditions listed on pages 28 — 31 of the Decision.
McCullough Hill Learv. PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 1 of 7 206.812.3388
206.812.3389 fax
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Quadrant seeks reconsideration of Condition #18, which creates an untenable financial
condition for the Project that is unnecessarily burdensome when the Project conditions already
require that construction of the mixed -use building and required infrastructure be in the first
phase of the Project. Condition #18, which was proposed by staff with modifications imposed
during the hearing, takes the phasing requirement a step further by requiring that the mixed -use
concrete podium be constructed and inspected, or alternatively, that the mixed -use developer
post financial security for the entire cost of the mixed -use building (an estimated $70 - $80
million dollars) before townhome construction can be initiated. Condition #18 is unreasonable,
infeasible and arbitrary and capricious. Further, it exceeds the Examiner's authority.
We are asking the Examiner to reconsider Condition #18 and revise it to address the
City's phasing concerns without jeopardizing the feasibility of this Project.
II. STATEMENT OF FACTS
The facts in this matter were established at hearing. The facts relevant to the Motion are
discussed below.
III. ARGUMENT
A. Reconsideration standard.
RMC 4-8-100.1.3 provides that "a party of record who asserts the decision was based on
erroneous procedure, error of law or fact, or error in judgment may make a written request for
reconsideration by the decision maker ..." Any such request must be made within fourteen (14)
calendar days after the written decision is rendered. The Decision in this case was rendered on
December 11, 2018.
McCullough Hill Learv. PS
701 Fifth Avenue, Suite 6600
APPLICANT'S MOTION FOR RECONSIDERATION — 2 of 7 Seattle, Washington 98104
206.812.3388
206.812.3389 fax
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B. The Project is already required to be phased, with the mixed -use building and all
public infrastructure constructed in the first phase.
The issue of phasing was a key focus of the hearing on this Project. The Examiner
summarized senior planner Matt Herrera's comments on phasing as follows:
Mr. Herrera discussed Condition 18 and the issue of phasing. Mr. Herrera referenced the
large amount of public investment the City and the Renton Housing Authority has put
into this neighborhood to transform lots formerly comprised of temporary duplexes into a
compact, urban -style, mixed -use development. The mixed -use component of the Solera
project is considered among one of the chief factors of this development for staff.
Therefore, the first phase of the project must contain the development of the mixed -use
building and infrastructure around it. When the concrete podium is finished, then the
Applicant can move forward with their residential -only portion of the project.
Decision, pg. 3. In order to provide assurances that the mixed -use building would be built in the
first phase of the project, Quadrant developed a "Phasing Plan," which is Exhibit 12 to the
Decision. Condition #18 provides that Quadrant "shall follow" the Phasing Plan, and that any
requested modifications to the Plan "shall continue to result in the initial phase of construction to
include one of the two mixed use buildings and public infrastructure improvements identified in
orange on the phasing plan." Decision, pg. 32. This aspect of Condition #18 is reasonable, and
Quadrant has no issue with it.
C. The requirement in Condition #18 to construct the mixed -use concrete podium, or
alternatively, to post security for the entire cost of the mixed -use building ($70 - $80
million) is unnecessary, infeasible, arbitrary and capricious.
In addition to the requirement that a mixed -use building and all public infrastructure be
constructed in the first phase of the Project, staff proposed an additional requirement,
presumably to provide additional (unnecessary) assurances that the mixed -use buildings will be
constructed in the first phase. This requirement provides that: "construction activities on the
townhome components of the Master Plan that follow a mixed -use building phase shall not be
McCullough Hill Learv, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 3 of 7 206.812.3388
206.812.3389 fax
permitted until the mixed use building concrete podium is completed and passed inspection."
Decision, pg. 32.
When Quadrant testified at the hearing that such a condition would be infeasible, staff
proposed an alternative that was intended to "add flexibility to the phasing." Testimony of Matt
Herrera, Decision, pg. 3. That alternative, which was included in the final Condition #18, allows
the mixed -use developer to provide a "cash set aside, letter of credit or an assignment of funds
approved by the city for the entire cost of the mixed -use building." Decision, pg. 32 (emphasis
I'
o I I added).
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Accordingly, Condition #18 provides in its entirety:
18. The Applicant shall follow the Phasing Plan as provided in Exhibit 12
in order of phasing number. Construction activities on the townhome components
of the Master Plan that follow a mixed -use building phase shall not be permitted
until the mixed use building concrete podium is completed and passed inspection.
In lieu of a concrete podium, construction may follow a mixed -use building phase
when shoring walls and foundation excavation are completed for the mixed -use
building along with a receipt of either cash set aside, a letter of credit, or an assignment
of funds approved by the city for the entire cost of the mixed -use building. Any
requested modifications of the phasing plan shall be reviewed and approved by the
Current Planning Project Manager and shall continue to result in the initial phase of
construction to include one of the two mixed used buildings and public infrastructure
improvements identified in orange on the phasing plan.
The additional requirements in this section —the requirement to construct the mixed -use
podium, or alternatively, attempt to provide a letter of credit for the $70 - $80 million cost of the
entire mixed -use building —are unnecessary, infeasible, arbitrary and capricious.
First, requiring the mixed -use podium construction to be completed before townhome
constructed can be initiated is unnecessarily burdensome and arbitrary. The podium is a complex
and lengthy phase of construction, which will likely take 6 — 8 months to complete. If Quadrant
is required to wait to initiate construction of the townhomes until podium construction is
complete and passed inspection (neither of which will be subject to Quadrant's direct control),
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 4 of 7 206.812.3388
206.812.3389 fax
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this will have a significant impact on construction timing, and it could render the Project
infeasible. Further, this requirement will force construction activities to occur consecutively as
opposed to concurrently, which will prevent Quadrant and its mixed -use partner from
coordinating construction activities to increase efficiencies, reduce costs, and reduce impacts on
neighboring properties.
Second, the "alternative" requirement, which allows the mixed -use developer to complete
shoring walls and excavation along with a letter of credit for the entire cost of the mixed -use
building (an estimated $70 - $80 million dollars) is exponentially more burdensome and arbitrary
than the original condition. Since receiving the Decision, Quadrant has reached out to several
mixed -use developers who have expressed interest in partnering on this Project. All have
confirmed that they would be unable to secure a letter of credit for the full amount of the mixed -
use building, and all have questioned why such a condition would ever be imposed.
The City's Hearing Examiner has broad authority to impose mitigation conditions, but
that authority is not unlimited. RMC 4-8-100.G.3.c. The burden is on the City to establish that
development conditions are tied to a specific, identified development impact. Isla Verde Int'l
Holdings v. City of Camas, 146 Wn. 2d 740, 759, 49 P.3d 867 (2002); Citizens' Alliance for
Prop. Rights v. Sims, 145 Wn. App. 649, 665, 187 P.3d 786 (2008). In addition, agency action is
arbitrary and capricious if it is "willful and unreasoning and taken without regard to the attending
facts and circumstances." Washington Indep. Tel. Ass'n v. Washington Utils. & Transp. Comm'n,
148 Wn.2d 887, 905-06, 64 P.3d 606 (2003) (citations omitted). Condition #18 does not meet
these tests. It is unnecessary to address the "impact" the City has identified (the risk of
residential development proceeding without the mixed -use), and it imposes an unlawful,
arbitrary burden on the Project.
McCullough Hill Learv. PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 5 of 7 206.812.3388
206.812.3389 fax
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D. Condition #18 is based on an error of fact, law and judgment.
The RMC authorizes motions for reconsideration if a Hearing Examiner decision evinces
an error of fact, law or judgment. Each are present here. Condition #18 is based on a lack of
understanding of construction timelines, costs, and the feasibility of various security
mechanisms; it is patently infeasible. Condition #18 will: (1) unreasonably delay townhome
construction, significantly impacting the pro forma on which this Project is premised; (2) prevent
Quadrant and its mixed -use development partner from coordinating construction activities,
which will decrease overall construction impacts and timeline; (3) scare off mixed -use
development partners, who will be unable to secure a $70 - $80 million dollar letter of credit
(and who will question why the City would impose such an unreasonable requirement); and (4)
jeopardize the feasibility of the Project. Reconsideration is warranted here.
E. Requested relief.
Quadrant requests that the Hearing Examiner strike the second and third sentences of
Condition #18, resulting in the following modified condition:
18. The Applicant shall follow the Phasing Plan as provided in Exhibit 12
in order of phasing number. Any requested modifications of the phasing plan shall be
reviewed and approved by the Current Planning Project Manager and shall continue to
result in the initial phase of construction to include one of the two mixed used buildings
and public infrastructure improvements identified in orange on the phasing plan.
Alternatively, Quadrant asks the Examiner to direct the parties to work together to
develop a mutually -agreeable, revised Condition #18 to bring back to the Examiner for inclusion
in the Decision. Quadrant has reached out to the Director of the Community and Economic
Development Department to discuss, and it is optimistic that agreement can be reached.
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 6 of 7 206.812.3388
206.812.3389 fax
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IV. CONCLUSION
Quadrant respectfully requests that the Hearing Examiner grant the Motion and revise
Condition #18 to strike the second and third sentences, or alternatively, to direct the parties to
work together to propose a mutually -acceptable revision to Condition 418.
DATED this 21"day of December, 2018.
s/Courtney E. Flora, WSBA #29847
Attorneys for Quadrant Homes
McCULLOUGH HILL LEARY PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Tel: 206-812-3388
Fax:206-812-3389
Email: cflora cr mhseattle.com
McCullough Hill Learv. PS
701 Fifth Avenue, Suite 6600
Seattle, Washington 98104
APPLICANT'S MOTION FOR RECONSIDERATION — 7 of 7 206.812.3388
206.812.3389 fax