HomeMy WebLinkAboutSingla�u6(jc
November 23rd, 2020
VIA EMAIL
City Council
City of Renton
1055 S. Grady Way
Renton, WA 98057
Re: Proposed Interim Zoning Controls
Public Comment and Objection
Dear Honorable Council and Planning Department:
WILLIAMS KASTNER'"
11141
City Clerk
City of Renton
1055 S. Grady Way
Renton, WA 98057
Our office represents Renton Hotel Investors, LLC, the owners of the Red Lion Hotel and Conference
Center at 1 South Grady Way. For the reasons that follow, our client strenuously objects to both the
substantive changes that are being proposed and the manner in which the City is bringing them about.
1. Renton Hotel Investors, LLC, is a Minority Owned Business and its owners have deep Roots
in the City of Renton
Mr. Dayabir Bath is one of the owners of the Renton Hotel Investors, LLC. Mr. Bath moved to the
United States from India with $20 in his pocket. He has lived in the area since 1989, and drove a Stita
taxi for the first 6 years. In 1991, he was voted onto the Board of Directors/Vice President of the Stita
Taxi Association. He worked hard, saved his money, and bought he first business in 1995. Slowly, he
grew his businesses and now employs numerous people and makes significant financial contributions
to the City of Renton.
Mr. Bath has been the main sponsor for Seattle Summer Sports Club in Kent for the last 10 years. This is
an organization that creates free activities for kids that wouldn't otherwise have opportunities. They
also get free snacks, meals, and uniforms at every practice. He currently serves as the President of
Sarbat Da Bhala charitable trust of Washington State. He personally donates to Children's Hospital, and
Susan B. Anthony Cancer Foundation.
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Mr. Bath is an active member of the East Indian community. He is a leader in Renton's local Sikh
community and mentors young people and other entrepreneurs. Mr. Bath's faith instructs him to
constantly give to others in need, regardless of their financial or other circumstance. This is the reason
he has organized weekly food drives in local Sikh temples during this COVID-19 crisis. See
htti2s://www.seattlgtimes.comlseaqle seattle-area-sikh-colnmuni,ty-leans-on-core-values-to-help,
those -in -need -du ring-coronavirus-pandemic/
When King County approached Mr. Bath about providing resources and housing for the County's most
vulnerable homeless population, we recognized that they were at high risk of contracting COVID-19
absent help. Mr. Bath's faith, duty, and commitment to his community drove him to agree to help
during this unprecedented time. The hotel had empty rooms; King County needed those rooms; and,
he could work with the County and his new guests to create a safe environment for them to survive the
COVID-19 crisis.
As a result of providing service to his community according to his faith, he has faced unbelievable
discrimination and harassment — including some individuals who are now advocating for this
particular ordinance change. Mr. Bath has been made to feel like he did not belong in the Renton
community, even though he has been a member of this community for nearly thirty years.
Mr. Bath feels that because he is an immigrant with an accent, he is somehow not worthy of owning a
business at the same level as his Caucasian counterparts. Unfortunately, this implicit contempt and bias
has also been expressed by local community leaders as they have been driven to demonize Mr. Bath,
his partners, and his employees.
This discriminatory attitude towards Mr. Bath has also translated to harassment by local agencies. He
has worked cooperatively with the Renton Police Department, Renton Fire Department, and other first
responders. He has contributed to their local charity funds and done everything to support their
efforts. Recently, he made a contribution to a local first responder agency. The agency outright rejected
his donation, and told him not to renew the lease with King County. Shortly thereafter, this same
agency began inspecting the property on a weekly basis, cited the business for unfounded code
violations (that had gone unnoticed for years), and even threatened to shut down part of the business
operations. Local government agencies have made Mr. Bath and his employees feel like we are the
other, and "enemies," simply because he agreed to help his community as a tenet of his own faith.
Mr. Bath tried reaching out to local community leaders to explain his perspective, but was either been
ignored or dismissed. Mr. Bath can't help but wonder whether explicit or implicit racial bias
contributes to his being condescended, dismissed, and yelled at for simply trying to help out the most
vulnerable.
Now, those same community leaders are focusing their ire and contempt on Mr. Bath's business
specifically. It is apparent on the face of the Council agenda that the proposed changes are explicitly
directed at Mr. Bath, and are calculated not only to disadvantage his business in pending proceedings,
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but dramatically diminish the value of his property (while, in the process, putting perhaps hundreds of
ill men and women on the street). There is no other explanation for why this Council — in the dead of
night and without meaningful notice — is a trying to pass legislation targeting Mr. Bath's business.
Because the proposed actions are both unlawful and heartless —notwithstanding the immense exposure
the City is inviting —we ask that you reconsider.
2. Prefatory Remarks
As a preliminary matter, we learned that changes might be in the works on November 17, and did not
even get a sense of them until November 19. Our clients, therefore, have had approximately one business
day to get timely comment to the City before the scheduled meeting. Consequently, our comments will
necessarily live at a general level. We have had neither the time, nor the available means, to secure equal
access to the City's information and work with our client to address all of the conceivable issues in detail.
This letter is accordingly without prejudice to additional objections and legal action. Any suggestion
that we've waived comment —given the timing —would contravene even the most forgiving notions of
due process under Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976).
3. There Is No Emergency
We first note that, though styled as an "Emergency Ordinance," there is no emergency. The COVID-19
pandemic is an emergency, to be sure. But the pending land use regulations are not —and claiming
otherwise on the face of the Ordinance does not change that:
WHEREAS, in response, the City Council has determined to, on an emergency and Interim '
basis, define 'homeless services use land uses, state the zoning designations in which such land
uses are allowed, and establish regulations to be applied to such uses. During the Interim period
In which this ordinance is in effect, it is the City Council's desire to have City staff further studyd
options for regulating homeless services uses; and i)
WHEREAS, the City Council finds that there is a need to adopt this ordinance as an Interim
zoning control ordinance on an emergency basis; and
This Ordinance, as explicitly stated, is about "mooting" our client's pending actions and "fixing" the
analytical problems with City's legal position in Court (e.g., redefining hotel'). If anything, these
proposed changes only serve to make the real emergency (i.e., the pandemic) worse by, among other
things, making the operation of homeless shelters impracticable, putting numerous people with COVID-
19 on the street where they will be further victimized, and possibly die. For this reason alone, the zoning
changes should be reconsidered.
I In a wav that further damages our client. See infra.
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4. This Is Not Legislative, This Is A Backdoor Revision Of The Hearing Examiner's Decision
This action, despite what the City's legal counsel may have suggested, is clearly the wrong process. As
you know, site -specific land use decisions are not legislative, but rather, quasi-judicial and subject to
LUPA. Schnitzer W., LLC v. City of PuyaIlup,190 Wash. 2d 568, 576, 416 P.3d 1172 (2018). In Schnitzer,
the City of Puyallup attempted to revise its zoning code to address concerns that were not regional, but
rather, pertained to a single parcel. The property owner appealed under LUPA, and the City argued
that the superior court lacked jurisdiction because it was "an ordinance." The Supreme Court
disagreed, observing that such "[a] site -specific rezone occurs 'when there are specific parties
requesting a classification change for a specific tract.'" Id.
Here, the City is not even hiding the fact it is specifically and only targeting our clients. The ordinance
makes it clear the express intent of the Council is to "moot [my client's] Unclassified Use Permit" and
"moot [my client's] Renton Shelter Lawsuit." The entire background, set forth in Agenda Item #3, is a
discussion about my client's property, permitting, and dispute. In no uncertain terms, the purpose of
the ordinance is to take what the City could not negotiate for, or win, in contested proceedings to date.
For example, as the agenda acknowledges, the City attempted to "negotiate" with King County, in
hopes of committing them to an "end date" for our facility. King County could not commit, because
nobody knows when the pandemic will end. Now, legislatively, the City is effectively "mandating" an
end -date. Then the City hoped that the Hearing Examiner would simply find a violation and forcibly
throw DESC out of Renton. He declined, instead, suggesting that we had a permit process available to
us. But rather than letting us avail ourselves of it, this "emergency" zoning rule is being enacted to
thwart that permit process.
In essence, this is a land use decision under the guise of legislation. It is void and improper for that
reason, notwithstanding the substance.
5. The Proposed Changes, In Any Event, Violate The Growth Management Act and Federal
Law.
Even if this were not a site -specific land use decision, and thereby subject to the Growth Management
Act, the proposed action would still be unlawful. As you know, RCW 36.70A.200(5) states that "[n]o
local comprehensive plan or development regulation may preclude the siting of essential public
facilities." RCW 36.70A.200(5) applies to expansions of essential public facilities. City of Des Moines v.
Puget Sound Reg'l Council, 108 Wash. App. 836, 844-45, 988 P.2d 27 (1999); City of Airway Heights v. E.
Washington Grozoth Mgmt. Hearings Bd.,193 Wash. App. 282, 312, 376 P.3d 1112, 1126 (2016).
The use at issue is unquestionably an essential public facility. The issue is whether a facility, as here, is
"necessary to provide a public service" and "difficult to site." Any one or more of the following
conditions is sufficient to make a facility difficult to site:
(a) The public facility needs a specific type of site of such as size, location, available
public services, which there are few choices.
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(b) The public facility needs to be located near another public facility or is an expansion
of an essential public facility at an existing location.
(c) The public facility has, or is generally perceived by the public to have, significant
adverse impacts that make it difficult to site.
(d) Use of the normal development review process would effectively preclude the siting
of an essential public facility.
(e) Development regulations require the proposed facility to use an essential public
facility siting process.
WAC 365-196-550(1)(f). Virtually all of these factors are met, and we believe DESC and King County
will both confirm that there are no other available sites for this use.
Additionally, the proposed action also invites the Renton City Council to discriminate against
people with disabilities. Federal law provides:
Individuals with disabilities are a discrete and insular minority who have been faced
with restrictions and limitations, subjected to a history of purposeful unequal treatment,
and relegated to a position of political powerlessness in our society, based on
characteristics that are beyond the control of such individuals and resulting from
stereotypic assumptions not truly indicative of the individual ability of such individuals
to participate in, and contribute to, society.
42 U.S.C. §12101(a)(7). The Ninth Circuit and others have long recognized that the "Rehabilitation Act
and the ADA apply to zoning because zoning'is a normal function of a governmental entity."' Bay Area
Addiction Research, 179 F.3d at 731 (quoting Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d
37, 47 (2nd Cir. 1997)).
The ADA prohibits discrimination against a "qualified individual with a disability," which is defined
as "a physical or mental impairment that substantially limits one or more of the major life activities of
such individual." 42 U.S.C. §12112(a) and §12102(2)(A). King County and DESC are implementing a
program - amidst a global pandemic and national, state, and local health emergency, for the purpose of
providing community -based services to homeless people in crisis suffering from COVID-19. DESC also
confirmed, as you know, that the individuals at our property are "almost universally suffering from
behavioral disabilities":
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4. That understanding - that UESC provides 24•hour shelter for our clients - also
should cause the I [caring Examiner to reconsider his characterization of the services UESC
provides to its clients at the Red Lion. The Hearing Examiner unde mood that we provide meals
and room cleaning, as is cotnmon for a hotel. Our clients are almost universally sttfr'ering from
behavioral health disabilities. They are often medically fragile, as well as having behavioral
disabilities. Those disabilities require additional services to enable them to stabilize their lives
and move on to stable long-term housing. In that sense, the services that we provide are no
They therefore fall within the ADA on various grounds, and are entitled to its protections. See, Bragdon
v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998) (drug dependency constitutes an
impairment for purposes of the ADA); Regional Economic Community Action Program, Inc. v. City of
Middletown, 281 F.3d 333 (2nd Cir. 2002) (alcoholism and drug addiction constitute a mental and
physical impairment under both the ADA and Rehabilitation Act).
Following through on the proposed action —which, by design, hurts and disadvantages the disabled —
would openly violate federal law. And to do so during a 100-year pandemic would likely invite
exposure on the part of the City commensurate with the harm these measures would cause.
6. The Proposed Changes Interfere With The Local Health Officer's Authority
We also note that these proposed changes represent a direct challenge to the Local Health Officer's
authority, which is derived from Article 11, § 11 of the Washington Constitution:
Any county, city, town or township may make and enforce within its limits all such local
police, sanitary and other regulations as are not in conflict with general laws.
See Spokane County Health Dist. v. Brockett, 120 Wn.2d 140,147-48, 839 P.2d 324 (1992). State law grants
local health officers exceptionally broad authority to act to protect the public health. Among those,
RCW 70.05.070 broadly mandates, without limitation, that the local health officer shall:
(2) Take such action as is necessary to maintain health and sanitation supervision over
the territory within his or her jurisdiction;
(3) Control and prevent the spread of any dangerous, contagious or infectious diseases
that may occur within his or her jurisdiction; ...
(9) Take such measures as he or she deems necessary in order to promote the public
health ....
In addition to the authority under RCW 70.05.070, a local health officer, when necessary, may institute
disease control and containment control measures, including isolation and quarantine measures he or
she deems necessary based on professional judgment. See WAC 246-100-036(3). A local health officer's
orders are subject to enforcement which include criminal prosecution. See RCW 70.05.120(4); WAC 246-
1 00-070.
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The Washington Supreme Court has long recognized a local health officer's broad authority to protect
the public from contagious diseases. See Brown v. Pierce County, 28 Wn. 345, 68 P. 872 (1902); State ex rel.
McBride v. Superior Court, 103 Wash. 409,174 P. 973 (1918). In Brown, an eminent domain case where the
city of Tacoma, through its health officers, "appropriated" private property without consent to house
smallpox patients, the only issue was the measure of damages for the taking. Brown, 28 Wn. at 347-48.
No dispute existed as to the authority to seize the private property; as the Court noted, the parties "do
not question the right of [health officers] in the quick exercise of their extraordinary powers in relation
to the preservation of the public health, to seize and use the property for the purpose for which it was
used." Id. at 348-49. Brown demonstrates the expansive nature of local health officers' authority when
acting to contain infectious disease.
More recently, in affirming a needle exchange program intended to address HIV, the Supreme Court
held:
Because protecting and preserving the health of its citizens from disease is an important
governmental function, public health statutes and the actions of local health boards
implementing those statutes are liberally construed... The legislatively delegated power
to cities and health boards to control contagious diseases gives them extraordinary
power which might be unreasonable in another context... Indeed, we have said the
subject matter and expediency of public health disease prevention measures are 'beyond
judicial control, except as they may violate some constitutional right guaranteed to
defendants.'
Spokane County Health Dist. v. Brockett,120 Wn.2d 140,149, 839 P.2d 324 (1992). In contrast,
"[m]unicipal police power is as extensive as that of the legislature, so long as the subject matter is local and
the regulation does not conflict with general laws." State v. City of Seattle, 94 Wn.2d 162, 165, 615 P.2d 461
(1980) (citation omitted)
The various regulations and requirements of the proposed changes render the Local Health Officer's
directives impracticable. First, they require that all but 100 residents be thrown out onto the street.
And then, everyone else has to be thrown out onto the street in June. This is both an illegal, and with
due respect, a heartless approach to the most needy in your community.
7. The Proposed Changes Diminish Our Client's Property Without Due Process And
Demonstrate that the City is Retaliating Against Our Client
Lastly, we note that these changes render our client's property worse off, by virtue of our having gone
to Court in defense of both his rights and those of his residents. The right to access the courts is a
fundamental, core constitutional right. And— as explicitly stated in the ordinance —these new rules are
a direct result of the pending action. They include:
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• A preclusion of hotel guests at our property staying for longer than 30 daysz;
• Homeless shelter regulations —notwithstanding our expectancy in a longer term agreement
with DESC—that impose an extraordinary, including addressing homeless around the block,
residency limitations, schooling requirements, and the like. There are pages and pages of
requirements, which will disincentivize providers, like DESC, from working with us.
Under the First Amendment, a citizen has the right to be free from governmental action taken to
retaliate against the citizen's exercise of First Amendment rights or to deter the citizen from exercising
those rights in the future, including accessing the courts. See, e.g., Sloman v. Tadlock, 21 F.3d 1462, 1469-
70 (9th Cir. 1994); Ninth Circuit Model Inst. 9.10. This is civil rights liability as a matter of law, given
that targeted legislation diminishing property value would obviously "chill a person of ordinary
firmness" from exercising their right to access the courts. See id (retaliation standard).
These regulations are extraordinarily onerous, and we ask our client's local government not to impose
them for that reason alone. Doing so, in addition, would also violate their constitutional rights and
expose the City to substantial litigation.
8. Diversion Efforts are Effective, and the Council's Decision to Limit these Efforts Will Have
Severe Negative Impacts, Including death.
Turning hotels into emergency shelters as part of COVID-19 response limits the spread of coronavirus
and improves health and safety. This is a proven fact, as demonstrated by a recent study by the
University of Washington -- https:/Iwww.washington.edujnews/20201IQ, 07/turning„hotels-into-
emergency-shelter-as-12art-of-covid-I9-response-limited-spread-of-coronavirus-improved-health-and-
stabili https_1ldrive.goo le.co►njfileldllOh!q „ggXadDVKsvIleb�Rfcblfp9b NNU,view.
At the Renton Red Lion, we have seen the results discussed in the study come to life. Clients'
conditions have improved, and they now enjoy a sense of safety and community. The number of
complaints associated with the Renton Red Lion have also reduced significantly as a result of clients
having the necessary services to survive through the Pandemic.
The Council's decision on this legislation will reverse those results, is contrary to proven practices
and science, and will result in severe negative consequences, including death. Clients will be forced
to leave the Renton Red Lion during a time when the COVID-19 Pandemic is surging. The Governor
has called for stricter restrictions for all Washingtonians, essentially ordering everyone to shelter in
once again. The Council will force these clients to will spill out into Renton communities. They are most
'- We note that this might include people transitioning into the state to move, attorneys trying cases at the RJC,
people put up in the hotel by insurance companies after property damage, or the like.
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susceptible to contracting COVID-19 because of their depressed health, housing, and safety conditions.
And, they will likely spread the disease in the community because they will not have secure housing.
CONCLUSION
Let's call this action for what it really is: The City and its leaders do not want a shelter (de -intensification
or homeless, generally) in its city limits, even though undisputed facts show that the most vulnerable
people are helped significantly by these services; the City and its local leaders have pressured and cited
its own local business owners, King County, and DESC for having the temerity to help out the most
vulnerable populations in the County; the City did not get a favorable ruling from its own hearing
examiner when the citations were appealed; now, to get its way the City is targeted a local minority
owned business to obtain the result that it could not through a local process.
This begs the question for the City Council:
Where will the 100+ homeless people go if the City passes this ordinance and forces them from Red
Lion Inn in Renton? They will venture into the local community and risk increasing the spread of
COVID-19 — at a time when the rates of transmission are at an all-time high. The City's action will
result in certain death of the most vulnerable people under its charge.
We thank the Council for its time and attention to our input. We hope you reconsider the proposed
action, which is burdensome, procedurally improper, and unlawful under both state and federal law.
Very truly yours,
9144,�� 1���
Sumeer Singla
206-233-2924
ssingla@williamskastner.com
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