HomeMy WebLinkAboutItem 62 - 10-02-2020 - HEX Decision Upon Reconsideration CorrectedITEM NO. 62
HEX-000734
Final Decision
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THE HEARING EXAMINER OF THE CITY OF RENTON
Request for Hearing1
Renton Hotel Investors, LLC and King
County
Case No. CODE20-000321
DECISION UPON RECONSIDERATION
DESC requested reconsideration by motion dated September 11, 2020. The
motion is denied. This Decision Upon Reconsideration also addresses Renton’s motion
for clarification dated September 14, 2020.
In response to DESC’s reconsideration request, an email order was sent to all
parties on September 12, 2020 authorizing responses by September 18, 2020 and DESC
a reply on September 23, 2020. The City of Renton submitted a timely response and
DESC a timely reply.
The Final Decision of this matter issued on August 31, 2020 is supplemented
with this Decision Upon Reconsideration. In its request for reconsideration DESC adds
two pertinent sets of facts: (1) social services are provided to clients in the evening as
well as the day; and (2) services involving crisis management are rare.
1 In its request for clarification, the City of Renton requested that this appeal proceeding be titled a
request for hearing” despite the fact that some RMC provisions call this an appeal proceeding and it is a
proceeding in which King County and RHI are appealing the FOV under appeal. Since no other parties
expressed any concern over what this proceeding was called and it likely makes no legal difference, the
title has been changed as requested by the City. The City is concerned that if this proceeding is called an
appeal that this would suggest appeal of this FOV examiner decision would be subject to the appeal
procedures of RMC 4-8-110. However, this is an appeal proceeding brought under Title 1, not Title 4 ;
the Final Decision and this Decision states in the appeal statement that appeals of the FOV examiner
decision go to superior court (which is not the RMC 4-8-110 process); and for at least the last decade,
likely longer, all appeals of FOV examiner decisions have had appeal statements designating superior
court as the appeal forum.
HEX-000735
Final Decision
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The additional facts provided by DESC both hurt and improve its chances of
acquiring an unclassified use permit at its current location in the former Red Lion. The
fact that it provides social services at night makes it less of an appropriate choice as an
unclassified use in the Commercial Arterial District. As outlined in the Final Decision,
between a social services organization and a hotel, the deintensification center is most
clearly closest to a social services organization in terms of type of use and use impacts.
The greatest dissimilarity between a social service organization and the proposed use is
that the deintensification center involves night social services while social service
organizations are defined to only include day shelter services. In clarifying that its
operations involve both day and night social services, DESC has characterized its use as
more intense than a social service organization and hence not appropriate in the
Commercial Arterial district at all, since there is no other similar use permitted there.
On the converse, DESC’s additional evidence that crisis management is only a small
part of the services it offers strengthens its position that its use isn’t more closely
associated with a diversion facility and hence should be located in an industrial zone as
argued by the City of Renton.
Ultimately, the new evidence presented by DESC doesn’t change the conclusion
in the Final Decision that a classified use permit for the current location of the
deintensification center is a reasonable option to pursue as a corrective action. The
similarities of the deintensification center to social service organizations along with the
fact that the current location was chosen as part of the implementation of a local health
officer COVID order render an unclassified use permit application a viable option for a
practical and legally sound solution to the differences between the City of Renton,
DESC, RHI and King County.
In its request for clarification, the City of Renton asserts that the unclassified use
analysis in the Final Decision should be treated as dicta, suggesting that the analysis
was beyond the scope of the appeal. This position is somewhat perplexing, given that a
substantial portion of the City’s presentation and argument was focused upon the
unclassified use process, the alleged dissimilarities of the deintensification center to
uses authorized in the Commercial Arterial zone and its similarities to diversion uses
only authorized in industrial zones.
The viability of an unclassified use permit is clearly within the scope of this
appeal because it directly pertains to the corrective action specified in the Finding of
Violation under appeal. RMC 1-3-2E3e authorizes the hearing examiner to “dismiss,
confirm, or modify” (emphasis added) the Finding of Violation. The unclassified use
analysis of the Final Decision was necessary to justify modifying the corrective action
of the FOV. The corrective action demanded by the City is limited to three options, all
of which involve ceasing current use. Given the legal requirements pertaining to ADA
reasonable accommodation and the deference required for implementation measures of
the local health officer COVID order, requiring the cessation of use should be avoided
if the use can continue while reasonable options are pursued to resolve the situation.
The unclassified use analysis of the Final Decision was necessary to ascertain whether
HEX-000736
Final Decision
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King County should be given the option of applying for a permit to operate the
deintensification center in its current location.
Ultimately, however, the unclassified use analysis of the Final Decision should
have little or no preclusive effect on the consideration of an unclassified use permit.
That decision is left to City staff as governed by City code. The Final Decision and the
Decision Upon Reconsideration of this matter simply establish that applying for such a
permit to operate in the current location would not be a frivolous endeavor and is worth
pursuing prior to ceasing operations.
The City of Renton also requested clarification on Final Decision findings
pertaining to efforts made by King County in finding alternative locations for the
deintensification center. The City wants to make it clear that King County didn’t search
for an alternative location after it commenced operations in Renton. For purposes of
clarification, the findings on relocation made in the Final Decision are limited to finding
that alternative locations were reasonably pursued prior to commencing operations in
Renton. King County’s relocation efforts prior to the date it commenced operations
were sufficient to allow it to continue operations while pursuing an unclassified use
permit as authorized by the Final Decision. That relocation effort was sufficient given
the duty of ADA reasonable accommodation and deference due to actions implementing
the COVID order of the local health officer. No finding is made as to the efforts of
King County to find an alternative location after commencing operations.
DECISION UPON RECONSIDERATION
DESC’s request for reconsideration is denied and the Final Decision of this
matter as issued on August 31, 2020 is unchanged except to the extent it conflicts with
this Decision Upon Reconsideration and as outlined in this paragraph. Findings in the
Final Decision presuming that no night social services are provided at night are
overruled as outlined in this Decision Upon Reconsideration. The deadlines for
corrective action of the Final Decision shall accrue from the issuance date of this
Decision Upon Reconsideration in lieu of the issuance date of the Final Decision. All
deadlines are based upon calendar days, starting from the date this Decision Upon
Reconsideration is emailed to the parties.
Issued this 2nd day2 of October 2020.
City of Renton Hearing Examiner
2 On October 8, 2020, the former erroneous signature date of August 31, 2020 was corrected to October 2,
2020. The deadlines referenced above commence from the date of emailing on October 2, 2020.
HEX-000737
Final Decision
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Appeal and Reconsideration
This Decision is a final decision of the City of Renton and is subject to appeal to
superior court as governed by the Washington State Land Use Petition Act, Chapter
36.70C RCW. A request for reconsideration to the hearing examiner may also be filed
within this 14-day appeal period.
HEX-000738