HomeMy WebLinkAboutReply to Order - van ness feldman CITY OF RENTON
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2 Nov 05 2014 1,11 c
RECEIVED }
3 CITY CLERK'S OFFICE
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7 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
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9 RE: Vuecrest Estates Preliminary Plat
REPLY TO ORDER AUTHORIZING
10 RECONSIDERATION AND
Preliminary Plat RESPONSES THERETO
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14 This Memorandum replies to the Hearing Examiner's Order Authorizing
15 Reconsideration and demonstrates why the variance requested under Renton Municipal
16 Code(RMC)4-7-240 should be granted. This Memorandum also replies to the two
17 responses to the Applicant's Request for Reconsideration received by October 31, 2014.'
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I. THE PLAIN MEANING OF THE CITY CODE CONFIRMS THAT THE
19 VARIANCE PROVISIONS IN RMC 4-7-240 AND THE VARIANCE CRITERIA
20 IN RMC 4-9-250.B.5 APPLY
21 The Order Authorizing Reconsideration raises questions about the City Council's
22 intent in passing RMC 4-7-240 and whether the City Council intended another code
23 provision, such as the street waiver provision in RMC 4-9-250.C, to be the only means by
24 t These two responses are the October 31,2014 Memorandum from David N.Rasmussen,President,
Sundance at Talbot Ridge HOA and the City of Renton's October 22,2014 City's Answer on
25 Reconsideration Request by Applicant.
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ,,
RESPONSES THERETO 1 719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 which relief from the dead-end street standard in RMC 4-6-060 may be granted. The City
2 Council's intent,however, is irrelevant.
3 Rules of statutory construction used by courts in interpreting state law apply in the
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context of interpreting City ordinances. Griffin v. Thurston County, 165 Wn.2d 50, 55
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6 (2008). If statutory language is unambiguous, the canons of statutory construction are not
7 to be used. Id. The meaning of an unambiguous statute must be derived from the code
g language. The Hearing Examiner is not permitted to look for the City Council's intent
9 that might be imputed to the Council or to construe the code in a way that the Hearing
10 Examiner believes will best accomplish some legislative purpose. See State v. Tvedt, 153,
11 Wn.2d 705, 732 (2005).
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RMC 4-7-240 plainly and unambiguously provides that"A variance from the
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14 requirements of this Chapter may be approved by the Hearing Examiner pursuant to RMC
15 4-9-250B." The phrase"This Chapter"used in RMC 4-7-240 clearly refers to Chapter 7
16 Subdivision Regulations, codified in Title IV Development Regulations of the Renton
17 Municipal Code. When the City reviews a proposed subdivision of real property, the
18 application must meet specific requirements for streets as set forth in RMC 4-7-150
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Streets—General Requirements and Minimum Standards. RMC 4-7-150.1) expressly
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21 states: "The street,standards set by RMC 4-6-060 shall apply unless otherwise approved."
22 This language in RMC 4-7-150.D unambiguously incorporates the street standards of
23 RMC 4-6-060 into the provision of Chapter 7. Moreover,by expressly stating that the
24 street standards in RMC 4-6-060 apply"unless otherwise approved,"this code provision
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .,
RESPONSES THERETO 2 719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
I offers the opportunity to vary the requirements of RMC 4-6-060 when approving a
2 subdivision. The phrase"unless otherwise approved" cannot be ignored or deemed
3 superfluous. State v. Bunker, 144 Wn.App. 407, 418 (2008). Rather, it demonstrates that
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approval of a subdivision under Chapter 7 may vary these street standards. The
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6 mechanism provided to vary any requirement in Chapter 7 is through a variance, as noted
7 in RMC 4-7-240.
g The fact that alternative means may be provided under the City Code to modify a
9 City standard is not unusual, nor does it cause the City Code to be ambiguous. For
10 example, the City's critical area regulations provide multiple options for modifying those
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requirements. See RMC 4-3-050.N—Alternatives, Modifications and Variances. The fact
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that the City Code provides a subdivision applicant a means to seek a variance from the
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14 street standards through a variance under RMC 4-7-240 must be accepted by the Hearing
15 Examiner as an unambiguous requirement to consider and rule on such a request.
16 There is no ambiguity that the Applicant requested a variance under RMC 4-7-240.
17 Exhibit 35, Attachment I is the letter submitted by Maher Joudi entitled"Vuecrest Estates
18 —Variance Request." That letter sets forth the four criteria for a Variance under RMC 4-
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9-250.13.5.
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The Applicant demonstrated that these four variance criteria in RMC 4-9-250.B.5
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22 were met. We again ask the Hearing Examiner to apply the correct criteria, grant the
23 variance, and strike Condition 13.
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .
RESPONSES THERETO 3 719 second Avenue site 1150
Seattle, WA 98104
(206) 623-9372
1 II. Response to Sundance at Talbot Ridge HOA
2 The October 31, 2014 Memorandum from David N. Rasmussen, President of the
3 Sundance at Talbot Ridge HOA, fails to address any of the arguments presented in
4 Applicant's Request for Reconsideration pertaining to the requested variance, other than a
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conclusory statement that the request should be rejected. The Talbot Ridge HOA has
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7 apparently failed to understand the Applicant's request—that the Hearing Examiner(and
8 the City Staff) applied the wrong standard in reviewing the variance request, and that
9 based upon the record before the Hearing Examiner, the variance should have been
10 granted. No further response is needed.
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12 III. Response to City's Answer on Reconsideration Request by Applicant
13 The first issue presented in the City's Answer on Reconsideration Request by
14 Applicant("City's Answer") concerns whether the variance provisions should apply. The
15 Applicant has already adequately addressed this issue in its Request for Reconsideration
16 and in the reply above to the Hearing Examiner's Order on Reconsideration.
17 The City's second issue, concerning the weight of testimony, deserves a response.
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In particular,the Applicant strongly disagrees with the City's statement that the Applicant
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20 provided no reason to examine the credibility of Chief Peterson. See City's Answer at 3.
21 As borne out by the record, Corey Thomas, the Plan Review Inspector for the City
22 of Renton Fire Department, expressly informed the Applicant that a temporary cul-de-sac
23 was an acceptable street design. Exhibit 35,Attachment B ("A proposed temporary cul-
24 de-sac would be acceptable if it meets all required dimensions and construction
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ..
RESPONSES THERETO 4 719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
1 requirements."); Exhibit 35, Attachment C{"The road section can be 28-feet if you
2 provide the stub road only for future connection, the actual connection does not have to be
3 achieved at this time."). Chief Peterson reversed these written representations by Fire
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Department representative Corey Thomas when Chief Peterson wrote in his August 15,
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6 2013 letter that"any request for a secondary access variance will be denied." (Exhibit 35,
7 Attachment E). Chief Peterson reversed himself two months later when, on October 7,
g 2013, he wrote: "I am withdrawing my letter dated August 15, 2013, regarding Vuecrest
9 Preliminary Plat. Please understand that I reserve the right to reissue the letter based on
10 the final plat design." Exhibit 35,Attachment G. Then, in testimony before the Hearing
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Examiner, Chief Peterson reversed the Fire Department's position yet again, opposing the
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requested variance. Chief Peterson never acknowledged his October 7 letter and the fact
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that there was no change in the plat design justifying reversal of his October 7, 2013
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15 decision.
16 The inconsistent statements by Chief Peterson and other Fire Department
17 representatives present the fundamental issue of witness credibility. As courts have noted:
18 "a person who speaks inconsistently is thought to be less credible than a person who does
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not." State v. Allen S. 98 Wn.App. 452, 467 (1999).
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21 The record also demonstrates that the October 7, 2013 letter was written explicitly
22 for the Applicant to believe that a temporary cul-de-sac would be approved and to induce
23 the Applicant to continue processing its preliminary plat application. Testimony of
24 Elizabeth Higgins. Past misrepresentations of a witness provide further means to judge a
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman «P
RESPONSES THERETO 5 719 Second Avenue site 1150
Seattle, WA 98104
(206) 623-9372
I witness's credibility. In the Matter of the Disciplinary Proceedings Against Marshall,
2 160 Wn.2d 317 (2007).
3 Given the inconsistent positions taken by the Fire Department over the history of
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this preliminary plat application, and the Fire Chief's October 7, 2013 letter, the Hearing
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Examiner should question the credibility of Chief Pederson's testimony. Moreover, the
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7 Hearing Examiner heard from three separate experts, Registered Fire Protection Engineer
g Carl Anderson, Civil Engineer Maher Joudi, and Traffic Engineer Vince Geglia on why
9 the variance would not be materially detrimental to the public welfare.
10 The third issue presented in the City's Answer concerns the Applicant's request, in
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the alternative,to modify Condition 13 to provide greater flexibility. While the Applicant
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appreciates the City's support for greater flexibility in Condition 13, the Applicant
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14 disagrees with the City's demand that a fully improved road section be built by Vuecrest
15 Estates on property it does not own or control.
16 To illustrate the importance of greater flexibility in Condition 13, and to address
17 the City's position on the extent of road improvements for a secondary fire access,page
18 one from Exhibit 37 is attached to this Reply Memorandum and marked as "Attachment
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A". Attachment A shows the two separate parcels of land between the Vuecrest Estates
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Preliminary Plat and 102nd Ave. SE. For illustrative and argument purposes, these two
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22 parcels have been marked on Attachment A as Parcel A and Parcel B.
23 To implement the specific language of Condition 13, as imposed in the Hearing
24 Examiner's Final Decision, access would be required through Parcel A. That is because
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman LLP
RESPONSES THERETO 6
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
I Condition 13 reads"Smithers Ave. S shall . . . be extended to the east..." The record
2 demonstrates that the owner of Parcel A is unwilling to sell or grant an easement.
3 Testimony of Jamie Waltier.
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Hypothetically, a temporary alternative secondary fire access might be able to be
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6 established through Parcel B to 102nd Ave. SE or through some other route. Such a
7 secondary fire access might provide access to fire and emergency vehicles until a full
g public roadway is established through Parcel A when Parcel A is developed.
9 The City's argument against allowing a temporary fire access and requiring a
10 "fully improved road section"is based on an unsupported claim that the"road will never
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be,built to standards." In fact,under the linkage and connection requirements in RMC 4-7-
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150(E)(2) and(4), whenever Parcel A develops, the full road section established for
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14 Smithers Ave. S will need to be continued from the eastern boundary of Vuecrest Estates
15 to 102 Ave. SE. That is a burden rightfully imposed on the owner of Parcel A. If the
16 variance is denied because of concerns for fire access, then Condition 13 should address
17 fire access only and provide Vuecrest Estates with flexibility on achieving that objective.
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19 IV. Conclusion
20 We urge the Hearing Examiner to reconsider his Final Decision, grant the
21 requested variance and strike Condition 13. If the Hearing Examiner denies the variance,
22 we ask the Hearing Examiner to revise Condition 13 to allow a temporary fire access lane
23 to be established,prior to final plat approval, across any parcel that could provide a
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secondary means of access for fire and emergency vehicles.
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman .,
RESPONSES THERETO 7 719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
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2 Dated this 5th day of November,2014.
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4 VANANES�SD5By6 Bry441624(
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REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman «P
RESPONSES THERETO 8 719 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 1, 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. Reply on Order on Reconsideration;
7 2. This Certificate of Service; and
8 3. Attachment A
9 and that on November 5, 2014, I addressed said documents and deposited them for
10 delivery as follows:
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Mr. Jason Seth [x] Via hand delivery
12 Acting Deputy Clerk
13 City of Renton Clerk's Office
1055 S. Grady Way
14 Seventh Floor
Renton, WA 98057
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Mr. Phil A. Olbrechts [x] Via email
16 City of Renton Hearing Examiner polbrechts(&omwlaw.com
17 Larry Warren [x] Via email
18 Renton City Attorney [x] Via U.S. mail
Renton City Hall lwarren(cyrentonwa.gov
19 1055 S. Grady Way
20 Renton, WA 98057
21 1 certify under penalty of perjury under the laws of the State of Washington that
22 the foregoing is true and correct.
23 EXECUTED at Seattle, Washington on this 5t`day of November, 2014.
24 Ua,gnak
25 Je 'fer Sower, Declarant
REPLY TO ORDER AUTHORIZING Van Ness
RECONSIDERATION AND Feldman ,,,
RESPONSES THERETO 9
719 Second Avenue Suite 1150
Seattle, WA 98104
(206) 623-9372
ATTACHMENT A
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