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HomeMy WebLinkAboutAppeal - Van Ness Feldman CITY OF RENTON NOV 26 2014 1 RECEIVED 2 CITY CLERK'S OFFICE 3 4 5 6 7 BEFORE THE CITY COUNCIL FOR THE CITY OF RENTON 8 9 RE: Vuecrest Estates Preliminary Plat APPEAL OF HEARING 10 EXAMINER'S FINAL DECISION Preliminary Plat UPON RECONSIDSERATION 11 LUA13-000642 12 13 14 The Applicant for Vuecrest Estates Preliminary Plat,by and through its counsel of 15 record, Brent Carson and Van Ness Feldman LLP, files this appeal of the Hearing 16 Examiner's Final Decision Upon Reconsideration dated November 15,2014 (the 17 "Decision") and asks the City Council to eliminate or modify Condition 13 of the 18 Decision for the reasons set forth below. 19 I. Standing 20 Pursuant to Renton Municipal Code(RMC)4-8-110(F), the Applicant has 21 standing to appeal the Hearing Examiner's Decision. 22 23 24 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 1 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (20 6) 623-9372 I H. Substantial Errors Justifying Elimination or. Modification of Condition 13 2 A. Introduction 3 This Appeal is focused entirely on the requirement of Condition 13 in the 4 Decision. Condition 13 forces the Applicant to extend a public road, Smithers Ave. S., 5 over adjoining private property that the Applicant does not own or control. The record 6 demonstrates that the owner of that adjoining private property refused to grant the 7 Applicant any rights of access. With the condition, asimposed, the Applicant has no 8 9 ability to develop the Vuecrest Estate's plat. 10 No other subdivision previously approved in this area under the same conditions 11 has been placed in this unfair,unreasonable and illegal predicament. These prior 12 subdivisions each extended Smithers Ave. S. through their properties and ended that 13 public road with a temporary cul-de-sac. The Applicant for Vuecrest Estates likewise 14 proposed to extend Smithers Ave. S. through its property and build a temporary cul-de-sac 15 16 at the end of its property. When the adjoining property to the east develops, Smithers 17 Ave. S. will be extended by that owner to Main Ave.S. (102nd Ave. SE)providing a 18 secondary access route for this neighborhood. Unfortunately,unlike each of the prior 19 subdivision approvals, the Hearing Examiner in this case rejected a temporary cul-de-sac 20 and imposed Condition 13, which requires the Applicant,prior to final plat approval, to 21 extend Smithers Ave. S. to the east, across another owner's private property, to connect to 22 Main Ave. S. 23 24 In addition to the disparate treatment of Vuecrest Estates, as compared with other 25 subdivisions in this neighborhood,the Staff in this case misrepresented to the Applicant APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 2 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 that a temporary cul-de-sac would be approved. At the very start of the process,the Fire 2 Department's representative stated in writing to the Applicant that: "A proposed 3 temporary cul-de-sac would be acceptable if it meets all required dimensions and 4 5 construction requirements." Exhibit 35,Att. B. The City's senior planner also confirmed the City's position on the acceptance of a temporary cul-de-sac: 6 7 "The City is asking that you provide stub to the property to the•east but are not asking you to make the improvements to provide secondary access as g part of the proposed development. However,without the secondary access a cul-de-sac would be required for fire turn around . . . 9 10 Ex. 35, Att. C. When the City Staff proposed that the Applicant apply for a variance in order to approve a temporary cul-de-sac, Staff wrote: "it will be supported by the City." 11 12 Ex. 35,Att. H. 13 Based on the Staff s clear representations to the Applicant on the acceptability of a 14 temporary cul-de-sac,the Applicant invested hundreds of thousands of dollars to process 15 this preliminary plat and address all issues raised by the City. If a secondary access were 16 going to be required,the Applicant would not have a proceeded with this project. Yet, 17 when the staff report was issued weeks before the Preliminary Plat public hearing,the 18 19 Staff reversed course,rejecting the previously accepted temporary cul-de-sac design, and 20 demanding extension of Smithers Ave. S. to 102 Ave. SE. The Staff s behavior in this 21 matter and their last-minute reversal justifies the City Council to question the credibility 22 of the City's testimony and to strike or revise Condition 13. 23 24 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 3 Feldman up 719 Second Avenue Suite 1150 Seattle, WA 98104 (20 6) 623-9372 I B. A Temporary Cul-De-Sac Complies with RMC 4-6-060.H.1 2 The Hearing Examiner erred by finding that a temporary cul-de-sac, as proposed 3 by the Applicant, and as originally accepted by Staff, failed to meet the requirements of 4 RMC 4-6-060.H.1. The City's dead end street standards prohibit permanent dead end 5 streets unless a future connection is physically impossible. RMC 4-6-060.H.1. However, 6 7 this code provision, as previously interpreted by City Staff, allows a temporary cul-de-sac 8 to be built if, in the future,that road can be extended when the adjoining property is g developed. 10 The Applicant did not propose a permanent dead end street. Instead, it proposed a 11 temporary cul-de-sac. To mitigate impacts, the Applicant proposed to install sprinkler 12 systems on every home in the development and to provide an internal circulation road 13 within the plat. Moreover, development of Vuecrest Estates would bring this 14 15 neighborhood one step closer to having a completed secondary access. With Condition 16 13, the plat cannot develop and the opportunity to extend Smithers Ave. S. closer to 102nd 17 Ave. SE is lost. 18 C. If Required, a Variance from the Secondary Access Requirement Should have been Granted 19 20 As presented above, the temporary cul-de-sac should have been approved without 21 the need for a variance. However, if a variance is required, it should have been granted by 22 the Hearing Examiner. Council should reverse the Hearing Examiner and grant the 23 variance. 24 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 4 Feldman,,, 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 1. The Hearing Examiner Applied the Wrong Variance Criteria. 2 The Hearing Examiner mistakenly applied the street improvement modification 3 provisions set forth in RMC 4-9-250(C)rather than the variance provisions in RMC 4-9- 4 250(B). Had the correct variance provisions been applied,the unrefuted evidence 5 6 presented by the Applicant and its experts should have led the Hearing Examiner to grant 7 the variance from the secondary access requirements. 8 The subject application was for a Preliminary Plat. Preliminary Plats are regulated 9 under Title IV, Chapter 7 of the Municipal Code. RMC 4-7-150 establishes the general 10 and minimum street requirements for plats. RMC 4-7-150(D),which imposes the 11 requirements for streets in subdivisions, states that: "The street standards set by RMC 4- 12 6-060 shall apply unless otherwise approved." (Emphasis Added). The street standards in 13 14 RMC 4-6-060 include those provisions in RMC 4-6-060(H) Dead End Streets. Thus, in a 15 plat application,the street standards in RMC 4-6-060 are.applied through the minimum 16 street requirements as set forth in Chapter 7, Section 4-7-150 and may be varied in the 17 preliminary plat approval. 18 The Hearing Examiner is given express authority to grant variances from the 19 requirements for subdivisions, as set forth in Chapter 7,including variances from the 20 street standards. See RMC 4-7-240(1). The Hearing Examiner may grant such a variance 21 22 by following the variance procedures set forth in RMC 4-9-250(B). RMC 4-7-240(A) 23 states: "A variance from the requirements of this Chapter may be approved by the 24 Hearing Examiner,pursuant to RMC 4-9-250(B)". 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 5 Feldman u, 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 I The Applicant applied for a variance under RMC 4-9-250(B), seeking a variance 2 from the secondary access standards in RMC 4-6-060,which were being imposed on this 3 subdivision through RMC 4-7-150. Exhibit 35,Att. I. The variance application provided 4 an analysis showing compliance with each of the four criteria under RMC 4-9-250(B) 5 6 including, in particular, criteria RMC 4-9-250(B)(5)(b)which states that"the granting of 7 the variance will not be materially detrimental to the public welfare or injurious to the g property or improvements in the vicinity and zone in which the subject property is 9 situated." The Applicant never asked for a street improvement modification under section 10 RMC 4-9-250(C). It was an error for the Hearing Examiner to apply the street 11 improvement modification provisions,under RMC 4-9-250(C),when a variance was 12 sought under RMC 4-7-240(A). 13 14 2. The Evidence Supports the Granting of a Variance 15 Witnesses for the Applicant presented unrefuted evidence that the variance criteria 16 had been met and that the variance should have been granted. See Testimony of Mr. 17 Maher Joudi; Testimony of Mr. Carl Anderson; and written testimony of Vincent J. 18 Geglia, Exhibit 35,Att. K. 19 Mr, Vince Geglia, a traffic engineer with Traff )e,provided a report 20 demonstrating that the surrounding streets in this neighborhood carry low volumes of 21 traffic at relatively low speeds and concluding that the risk of traffic accidents that would 22 23 block access to emergency vehicles is very low. Exhibit 35,Att. K. His report also 24 confirms that the looped road proposed for Vuecrest Estates will provide opportunities for 25 circulation of emergency vehicles within the plat. APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 6 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 Mr. Maher Joudi, a civil engineer with D R Strong Consulting Engineers Inc., 2 testified that the wide roadways (32.5' of pavement) and adjacent sidewalks (4.5' each 3 side)provide a total width of over 40 feet for an emergency vehicle to travel from the 4 intersection of 102 Ave. SE and SE 186th Street to the proposed development. He noted 5 6 the minimal on-street parking on these streets, given that each home along this roadway 7 has a garage and off-street parking in their driveway. g Mr. Carl Anderson, a registered Fire Protection Engineer with The Fire Protection 9 International Consortium, Inc.,presented expert testimony regarding the minimal risks to 10 life and safety posed by this development without having a secondary access and the 11 significant reduction in risk by the Applicant agreeing to install sprinklers in every home. 12 His unrefuted testimony was that the addition of 20 lots"would not be a significant 13 14 detriment to public safety based on what's already in the area." 15 The allegation by Staff,that this project would create a dead end street being 2400 16 feet long with 99 homes ori it was fully refuted by Mr. Carl Anderson who demonstrated 17 that only 800 feet of the roadway would have a single access because of internal 18 secondary access loops that are provided off this street along its length. Mr.Anderson 19 also confirmed that, of the 99 homes that Staff alleged to be on this street, 42 of those are 20 on two different streets, S. 47th PL and SE 185th PL, that have no impact on access to and 21 22 from Vuecrest Estates. Furthermore, of the existing 57 homes not on those two streets, 36 23 are within the Stonehaven Plat that has a looped road,which allows for two ways of 24 access or egress within that plat. 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 7 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (20 6) 623-9372 1 These facts, coupled with the significant mitigation of sprinklering these homes, 2 led Mr.Anderson to his expert opinion that there would be no material detriment to public 3 safety by granting the requested variance. That testimony is unrefuted. 4 If the City Council determines that a variance was required,based upon this 5 6 testimony, the City Council should grant that variance and strike Condition 13 from the 7 Decision. g D. Condition 13 is Arbitrary and Capricious 9 Requiring.Vuecrest Estates to provide secondary access in this case, as imposed by 10 Condition 13,is arbitrary and capricious. The prior subdivisions in this neighborhood 11 were authorized to extend Smithers Ave. S. through their properties to a temporary cul-de- 12 sac. No secondary access was required for these other projects. Vuecrest Estates merely 13 sought to be treated like all other applicants under similar conditions. There is no basis to 14 15 impose on secondary access requirement on this applicant. 16 It is also arbitrary and capricious to require secondary access given the City Staff's 17 express representations to the Applicant that a secondary access would not be required. 18 Those representations were made four separate times. In the second Pre-Application 19 meeting, the City's Fire Department representative stated the Fire Department's position 20 clearly: "A proposed temporary cul-de-sac would be acceptable . . ." Ex. 35,Att. B. This 21 was reconfirmed in the Fire Department's email: "the actual [secondary access] 22 23 connection does not have to be achieved at this time." Ex. 35,Att. C. After the project 24 was put on hold, and there were further discussions with City Staff and the Mayor and the 25 City attorney's office,the Fire Chief elected to withdraw an earlier letter, and the City APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 8 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 informed the Applicant that the application would be processed for approval without a 2 secondary access. According to the testimony of Ms. Higgins, withdrawal of the Fire 3 Chief s earlier letter was done specifically to induce the Applicant to continue processing 4 its plat application. In January 2014,when the City informed the applicant that a formal 5 variance application was required, it was made clear in Ms. Higgins' email that the City 6 7 supported this variance request. Ex. 35,Att. H. g In light of these representations, Condition 13 should be eliminated and a 9 temporary cul-de-sac authorized. 10 E. Condition 13 Violates RCW 82.02.020 11 RCW 82.02.020 restricts the City from imposing conditions on a plat where there 12 is no nexus and rough proportionality between the condition imposed and the alleged 13 impacts. See City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn.App. 17, 14 45 (2011). Here,the roads serving this plat are adequate. There is no permanent dead end 15 16 •street proposed,merely a temporary cul-de-sac. This project is providing its fair share 17 contribution to a future secondary access by extending Smithers Ave. S.through its 18 property. This is consistent with the City's approval of the prior plats in the neighborhood 19 that were approved under similar circumstances without requiring a secondary access. 20 The obligation in Condition 13 to extend Smithers Ave. S. to the east, across 21 property that the Applicant does not own or control is a heavy burden that far exceeds the 22 23 impacts caused by the project. The added risk to public safety from approval of these 20 24 homes is negligible. The Applicant attempted,in good faith, to acquire rights from the 25 adjoining owner to extend the road to the east, and that owner would not agree to grant APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 9 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 such access rights. Condition 13 is therefore impossible to meet and effectively results in 2 denial of this project. With Condition 13, as written,until the property to the east 3 develops or agrees to dedicate a right-of-way to the City,no reasonable use can be made 4 of the subject property. This raises the potential of a uncompensated taking. 5 6 F. Condition 13 Violates the Applicant's Substantive Due Process Rights Condition 13 also violates the Applicant's substantive due process rights. A land 7 8 use regulation violates substantive due process where(1)the regulation fails to achieve a 9 legitimate public purpose; (2)the means adopted are not reasonably necessary to achieve 10 that purpose; or(3)the regulations are unduly burdensome on the property owner. 11 Robinson v. City of Seattle, 119 Wn.2d 34(1992). While the City's proposed secondary 12 access requirement may meet the first prong,it fails the second two. 13 A secondary access is not reasonably necessary. The roads serving this plat meet 14 or exceed City standards. There is ample width for emergency vehicles to access this plat. 15 16 The total road and sidewalk width of over forty feet(40'), the low traffic volumes,the low 17 speeds through this neighborhood, and low probability of blocking accidents and the 18 internal circulation demonstrate that the risk of a fire truck or ambulance failing to gain 19 access to this plat through existing access roads is negligible. To mitigate impacts, every 20 home in this development will have a sprinkler system, designed to quickly and 21 effectively respond to a fire emergency. Smithers Ave. S. will be extended through 22 23 Vuecrest Estates eastward to the adjoining property that fronts on 102nd Ave. SE. 24 Vuecrest Estates moves this neighborhood one step closer to achieving the desire for 25 secondary access. The other plats in this neighborhood were approved without a APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 10 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 secondary access. Expert testimony from the Applicant's witnesses demonstrated that 2 there is no significant increase in risk from the addition of twenty new homes. 3 Regarding the third factor, courts consider the (a)nature of the harm to be avoided; 4 (b) the availability and effectiveness of less drastic measures; and(c)the economic loss 5 6 suffered by the property owner.Presbytery of Seattle v. King Cy., 114 Wn.2d 320, 331, 7 (1990). Other nonexclusive factors that may be helpful in the balancing required under g the third factor include the seriousness of the public problem,the extent to which the 9 landowner's property contributes to the problem, the degree to which the regulation solves 10 the problem, and the feasibility of less burdensome solutions. Id. 11 Here, imposition of Condition 13 effectively results in denial of the project, the 12 loss of over hundreds of thousands of dollars invested to date in the Project and the loss of 13 14 millions of dollars in lost profit. The City already approved neighboring plats on this 15 same road without requiring a secondary access, so the determination was already made 16 by the City that this is not a serious problem. Moreover,the repeated position of City 17 Staff that a secondary access connection would not be required for Vuecrest Estates 18 confirms that City Staff did not observe this to be a serious issue. The Applicant made a 19 good faith effort to either acquire the adjoining property,to the east or acquire a right-of- 20 ight-of20 21 way through that property,but the adjacent owner would not agree to sell or grant such a 22 right-of-way. 23 There are far less burdensome solutions to address the City's concerns and these 24 have been agreed upon. Every home will have a fire sprinkler. An alley has been 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 11 Feldman up 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 designed to provide a looped system through this plat to provide enhanced 2 maneuverability around the homes. The internal roads have been designed 4 feet wider 3 than the City minimum standards. All of these measures address the City's concern with 4 far less impact on the Applicant. 5 6 III. Relief Requested For all of the reasons noted above,we urge the City Council to strike Condition 13 7 8 from the Decision. 9 In the alternative,we ask the City Council to revise Condition 13 to allow the 10 Applicant to provide secondary access in ways other than extending Smithers Ave. S. 11 immediately to the east and to the specified intersection. 12 As shown in Exhibit 37, on sheet 1 of 1,there is one parcel of land(the"Easterly 13 Parcel") immediately east of the easterly end of Smithers Ave. S. as proposed to be built 14 by the Applicant. Mr. Jamie Waltier testified that the owner of this Easterly Parcel will 15 16 not sell his property or provide an easement for secondary access. Exhibit 37 shows on 17 Sheet 1 of 1 another parcel of land(the"Southeasterly Parcel")located between Tract`B" 18 and Tract"C"on the Proposed Vuecrest Estates plat and 102nd Ave. SE. Secondary 19 access might be available through that parcel. 20 Condition 13, as currently written,reads: 21 Prior to the recording of the final plat, a secondary fire access shall be 22 constructed that extends Smithers Ave S to the east to directly connect to Main Ave S(102nd Ave SE). The extent of street improvements necessary to 23 effectuate this connection shall be determined by the City of Renton Fire 24 Department in accordance with applicable fire code standards and shall be the minimum necessary to provide for safe and effective secondary access for 25 fire trucks and emergency vehicles. APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 12 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (20 6) 623-9372 I As written, it appears that this condition can only be satisfied by acquiring a public 2 access easement through the Easterly Parcel and providing a fire access road to the 3 specified intersection. Even if a secondary access could be established between the plat to 4 a location on 102nd Ave. SE through the Southeasterly Parcel, or through some other 5 6 parcel, it would appear that this would not meet the specific terms of Condition 13. - 7 If the City Council does not strike Condition 13,which it should do, Condition 13 g should, at a minimum,be revised to read as follows: 9 Prior to the recording of the final plat, a secondary fire access shall be constructed providing a second means of access from Main Ave S(102"d 10 Ave. SE)to the plat by fire trucks and emergency vehicles. The extent of 11 street improvements necessary to effectuate this connection shall be determined by the City of Renton Fire Department in accordance with 12 applicable fire code standards and shall be the minimum necessary to provide for safe and effective secondary access for fire trucks and emergency 13 vehicles 14 At least this revised condition will provide the Applicant with some flexibility to seek a 15 secondary fire access route. 16 17 Dated this 2e day of November,2014. 18 19 VAN NESS EL 20Ar;r� . 21 BY: By t C on,W� A#16240 22 23 24 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 13 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372 1 I, Jennifer Sower, declare as follows: 2 That I am over the age of 18 years,not a party to this action, and competent to be a 3 witness herein; 4 That I, as a legal,assistant in the office of Van Ness Feldman,LLP, caused true and 5 correct copies of the following documents to be delivered as set forth below: 6 1. Appeal of Hearing Examiner's Final Decision Upon Reconsideration; and 7 2. Exhibits 35 and 37 entered into the record in September 16,2014 hearing; and 8 3. This Certificate of Service 9 and that on November 26, 2014, I addressed said documents and deposited them for 10 delivery as follows: 11 12 Mr. Jason Seth [x] Via hand delivery Acting Deputy Clerk 13 City of Renton Clerk's Office 1055 S. Grady Way 14 Seventh Floor Renton,WA 98057 15 16 Larry Warren [x] Via email Renton City Attorney [x] Via U.S. mail 17 Renton City Hall lwarrenArentonwa.gov 1055 S. Grady Way 18 Renton,WA 98057 19 20 I certify under penalty of perjury under the laws of the State of Washington that 21 the foregoing is true and correct. 22 EXECUTED at Seattle,Washington on this 26th day of November, 2014. 23 24 J er Sower, eclarant 25 APPEAL OF HEARING EXAMINER'S Van Ness FINAL DECISION UPON RECONSIDERATION 14 Feldman 719 Second Avenue Suite 1150 Seattle, WA 98104 (206) 623-9372