HomeMy WebLinkAbout08-31-2020 - COR - Limited Motion for Clarification of August 31, 2020 Final Decision
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 1
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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IN PROCEEDINGS BEFORE THE CITY OF RENTON HEARING EXAMINER
IN RE THE MATTER OF THE REQUEST FOR
HEARING BY RENTON HOTEL INVESTORS, LLC
AND KING COUNTY
NO. CODE-20-000321
CITY OF RENTON’S LIMITED MOTION FOR
CLARIFICATION OF AUGUST 31, 2020
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND FINAL DECISION
I. INTRODUCTION
The City of Renton (the “City”) respectfully submits this limited motion for clarification
of the Hearing Examiner’s August 31, 2020 Findings of Fact, Conclusions of Law and Final
Decision (“Decision”) regarding the Renton Red Lion Finding of Violation (“FOV”).1
II. LIMITED MOTION FOR CLARIFICATION
This motion is limited in scope. It does not challenge the Decision’s determination
sustaining the FOV violations. Decision at 1:20. In this limited motion for clarification, the City
1 Separately, on or before the deadline of September 18, 20220, the City will respond to the Downtown Emergency
Services Center’s (“DESC’s”) September 11, 2020 Motion for Reconsideration.
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 2
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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seeks targeted clarification from the Hearing Examiner on three discrete issues relating to the
corrective action:
(1) The Decision constitutes a “final determination” regarding the FOV,
rather than a “decision on appeal.”
(2) There is no evidence in the record of any actions after April 9, 2020 by
King County or DESC (or RHI) to relocate the deintensification shelter away from
the Red Lion property.
(3) Statements in the Decision that exceed the scope of the two violations
stated in the FOV are non-controlling obiter dicta.
For the reasons explained below, the City respectfully requests that the Hearing
Examiner issue a clarification.
A. The Decision Constitutes a “Final Determination” Regarding the FOV
Regardless of RMC 1-3-2 References to “Appeal.”
At footnote 1, the Decision characterizes the proceeding at issue as an “appeal” rather
than a “request for hearing.” The City respectfully requests that the Hearing Examiner clarify
that although RMC 1-3-2.E inartfully uses both the terms “request for hearing” and “appeal,”
the Decision is a “final determination” regarding the two violations stated in the FOV rather
than a “decision on appeal.”
At RMC 1-3-2.C.2, the Renton Municipal Code lays out the process by which an alleged
violator is found to be in violation of City code. First, the City issues a Finding of Violation. See
RMC 1-3-2.C.2.a. Then, the Finding of Violation is “deemed final” unless the alleged violator
timely requests a hearing. See RMC 1-3-2.C.b. If the alleged violator timely requests a hearing,
the “final determination” regarding the Finding of Violation is made as a result of such hearing
by the Administrator of the Department of Community & Economic Development (“CED”) or
his/her designee:
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 3
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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The Finding of Violation is deemed final unless a Violator requests a hearing
before the Administrator under the process detailed in RMC 1-3-2.E.1,
Opportunity for a Hearing. The failure to request, submit a written argument
and/or appear at a hearing makes the Finding of Violation final. If a hearing is
requested, the final determination of the Finding of Violation shall be made by
the Administrator, or his or her designee.
RMC 1-3-2.C.2.b (italics added).
Here, both King County and RHI timely requested a hearing, and the CED Administrator
named the Hearing Examiner as the hearing designee.2 Accordingly, the parties’ August 14,
2020 proceeding constituted the hearing called for in RMC 1-3-2.C.2.b, and the City requests
clarification that the resulting Decision constitutes the City’s “final determination” as to the
FOV. This clarification will aid not only the parties to this proceeding but also avoid confusion in
future RMC 1-3-2 code enforcement proceedings as well.3
B. There Is No Evidence in the Record of Efforts to Relocate the Deintensification
Shelter after April 9, 2020.
The Decision found that “King County has made reasonable unsuccessful efforts to find
alternative locations.” Decision at 2:16-17. The wording of this finding could imply that, after
opening the deintensification shelter on April 9, 2020, King County made continued efforts to
find alternative locations. There is no such evidence in the record. The declarations from King
County and DESC about the siting decision all describe efforts pre-dating the April 9, 2020
opening at the Renton Red Lion property. See declarations from DESC’s Daniel Malone (COR 2,
COR 20), King County’s Leo Flor (COR 4, COR 21); and King County’s Bryan Hague (COR 17).
2 See City of Renton’s Opening Brief in Support of Finding of Violation Regarding Red Lion De-Intensification Shelter
(“City’s Opening Brief”) at 2:4-5.
3 The distinction is important for the current and future code enforcement proceeding participants to know
whether the proceedings are governed by RMC 4-8-110. Because the FOV is a Chapter 1-3 RMC code enforcement
action subject to review by the Administrator, not a permit decision subject to appeal to the Hearing Examiner, the
appeal process in RMC 4-8-110 does not apply.
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 4
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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The City requests clarification that there is no evidence in the record of efforts to
relocate the deintensification shelter after April 9, 2020. That complete lack of effort was a
primary motivating factor for the City initiating formal code enforcement proceedings.
C. Statements in the Decision Unnecessary to Decide the FOV’s Two Violations
Constitute Non-Controlling Obiter Dicta.
The hearing before the Hearing Examiner was confined to addressing two alleged
violations of the Renton Municipal Code: (1) “Violation 1: “Land Use Not Allowed in Zoning
Designation” and (2) “Violation 2: Operating without a City of Renton Business License.” See
City of Renton Exhibit 1 (or, “COR 1”), the Finding of Violation, pp. 2, 5. The City respectfully
requests that the Hearing Examiner clarify that those portions of the 23-page Decision that
exceed the scope of deciding the two alleged violations constitute non-binding obiter dictum.
“Statements in a case that do not relate to an issue before the court and are
unnecessary to decide the case constitute obiter dictum, and need not be followed.” Ass'n of
Wash. Bus. v. Dep't of Revenue, 155 Wn.2d 430, 442 n.11, 120 P.3d 46 (2005) (quoting State v.
Potter, 68 Wn. App. 134, 150 n.7, 842 P.2d 481 (1992)). This general proposition applies in land
use contexts, as well. See, e.g., Noble Manor v. Pierce County, 133 Wn.2d 269, 288-89, 943 P.2d
1378 (1997) (“it is imprudent to comment on an issue not necessary to decide the case . . . .
Such dicta are not controlling precedent”) (Sanders, J., concurring). Here, statements in the
Decision that exceed the scope of deciding the FOV’s two alleged violations, constituting non-
controlling dicta.
1. Statements about how an unclassified use permit process will come out are
dicta.
One category of dicta in the Decision are statements predicting how CED might decide
an unclassified use permit for the Property. The Hearing Examiner appropriately held that the
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 5
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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“Renton Municipal Code (RMC) assigns jurisdiction to issue unclassified use interpretations
exclusively to [CED],4 which is why this Decision does not include a final ruling on whether the
shelter should be authorized as an unclassified use.” Decision at 2:7-9.
After concluding in the Decision that the Hearing Examiner did not have jurisdiction over
the unclassified use permit process, further statements about how CED might or might not
decide an unclassified use permit application must be regarded as non-controlling dicta. See
Griffith v. City of Bellevue, 130 Wn.2d 189, 193-94, 922 P.2d 1996 (in a writ action regarding a
rezone, the Court rejected as dicta that portion of a prior decision offering analysis on an issue
over which the court held it had no jurisdiction) (citing Birch Bay Trailer Sales, Inc. v. Whatcom
County, 65 Wn. App. 739, 745, 829 P.2d 1009 (1992)).
An example of such dicta about the outcome of the unclassified use permit process is
the entirety of the Decision’s Legal Analysis Subsection 5 titled “Deintensification shelter has
Reasonable chance of Securing Unclassified Use Permit in CA Zone.” Decision at 15:1 – 16:2. A
second example of dicta about the unclassified use permit outcome is the Decision’s projection
that the deintensification shelter might qualify at night as a “hotel” land use. Decision at 14:1-
29 (going so far as to assume which support services might or might not be available at night,
without any such facts in the record).
It is important for the record to clarify the scope and authority of the Hearing
Examiner’s review in case the decision or later related decisions are appealed. The reason this
case proceeded as a code enforcement action under RMC 1-3-2 is because the Persons in
Control did not apply for permits or business licenses prior to the City’s FOV. An application
4 The Decision mistakenly refers to the “Community Services” department rather that to the “Community &
Economic Development Department.”
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 6
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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process would have allowed the City to request information about the proposed use/business
and thereby develop a record to support a permit/license decision that could be more
appropriately subject to appellate review. Before that interactive informational gathering
process takes place, it is premature to make judgments upon what may or may not be
approved.
2. Statements that speculate about how the Renton Municipal Code must bend to
the County are dicta because the Decision held, appropriately, that there is no
preemption here.
A second, but related category of dicta is the Decision’s speculations not based on
evidence in the record about how the Renton Municipal Code’s zoning regulations must bend
to the County due to the pandemic. See, e.g., Decision at 18:23-19:2 (stating that the City’s
zoning regulations must be “interpreted as flexibly as possible” to accommodate the exercise of
public health authority). The Decision appropriately held that the City’s zoning laws and
regulations are not preempted by the March 31 Local Health Officer Order or by any action
taken by the County.5 Thus, statements suggesting that the City’s laws and regulations must
give way to make things easy for the County are premature because they speculate about facts
not in the record, are not necessary to the Decision’s outcome, and must be regarded as non-
controlling dicta.
In sum, the City respectfully requests that the Hearing Examiner clarify that all
statements in the Decision that exceed the scope of deciding the FOV’s alleged violations
constitute non-controlling dicta.
5 The City reincorporates by reference its briefing on both conflict preemption and field preemption from its
Response Brief.
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 7
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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III. CONCLUSION
The City respectfully requests that the Hearing Examiner issue a clarification that:
(1) The Decision constitutes a “final determination” regarding the FOV,
rather than a “decision on appeal.”
(2) There is no evidence in the record of any actions after April 9, 2020 by
King County or DESC (or RHI) to relocate the deintensification shelter away from
the Red Lion property.
(3) Statements in the Decision that exceed the scope of the two violations
stated in the FOV are non-controlling obiter dicta.
Submitted this 14th day of September, 2020.
By: /s/ Shane Moloney
Shane Moloney
City Attorney
City of Renton
Attachment:
Declaration of Service
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 8
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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DECLARATION OF SERVICE
I declare under penalty of perjury under the laws of the State of Washington that on
September 14, 2020, a true and correct copy of the foregoing document was served upon the
parties listed below via the method indicated:
Renton Hotel Investors, LLC:
Sumeer Singla
Williams, Kastner & Gibbs PLLC
ssingla@williamskastner.com
[X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service
King County:
Howard Schneiderman
Senior Deputy Prosecuting Attorney
Howard.Schneiderman@kingcounty.gov
Youn-Jung Kim
Deputy Prosecuting Attorney
Jina.Kim@kingcounty.gov
Lena Madden
Deputy Prosecuting Attorney
Lena.Madden@kingcounty.gov
[X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service
CITY’S LIMITED MOTION FOR CLARIFICATION OF AUGUST
31, 2020 FINAL DECISION – Page 9
Renton City Attorney
1055 S. Grady Way
Renton, WA 98057-3232
Phone: 425.430.6480
Fax: 425.430.6498
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DESC:
Elaine L. Spencer
Northwest Resource Law PLLC
espencer@nwresourcelaw.com
Lisa Chaiet Rahman
Northwest Resource Law PLLC
lrahman@nwresourcelaw.com
[X] E-mail [ ] United States Mail [ ] Legal Messenger [ ] E-Service
DATED this 14th day of September, 2020, at Maple Valley, Washington.
/s/ Stephanie Rary
Stephanie Rary, Paralegal