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HomeMy WebLinkAboutHEX Decision - CU -- Aristo II1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Aristo Healthcare Services Conditional Use LUA21-000345, ECF, CU-H ) ) ) ) ) ) ) ) ) FINAL DECISION Summary Aristo Healthcare Services requests approval of a conditional use permit to operate an Intensive Behavioral Health Treatment Facility (IBHTF) in an existing building at 95 S Tobin St. The application is approved with conditions. The application is approved subject to conditions. Testimony Clark Close, City of Renton Senior Planner, summarized the proposal. In response to Examiner questions Mr. Clark stated that the use is not expressly authorized in any zoning district and that the appeal period has expired on the staff’s unclassified use determination. Mr. Droze, Applicant representative, noted that IBHTF are specifically authorized under state law under the Community Behavioral Health Services Act, codified under Chapter 71.24 RCW. The purpose of the Act is to provide a network of community behavioral health clinics across the state that help persons experiencing mental illness or substance abuse disorders to overcome their illnesses and reintegrate as productive citizens. IBHTFs are community based specialized residential treatment facilities for people who have impairment but whose impairment don’t meet the criteria for involuntary in-patient commitment. The facilities exist to enable residents to recover, rehabilitate and reintegrate into society. They reduce the potential for unnecessary hospitalizations and imprisonments and reduce the strain in existing health care and penal systems. The Aristo project 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 2 CAO VARIANCE - 2 serves as a transition facility for persons transitioning out of Washington’s psychiatric hospitals, providing a community based homelike environment for long term rehabilitation. The facility will not house any sexually violent predators or those with mental illness so severe as to warrant involuntary commitment. Residents will remain on-site for 9-24 months until they’re ready to head out into the real world. Most of the construction work will be on interior improvements. There will be very little construction related disruption to adjoining properties. The IBHTF will be located on the first floor. The second floor office space will be renovated, but will continue to be rented out as commercial office space. The proposed use as a behavioral residential unit and commercial office space aligns with the City’s strategic zoning goals. The property is zoned commercial arterial. The city’s unclassified use determination has not been appealed. Aristo agrees with the staff report conclusions that all review criteria are met. Regarding potential public concern over public safety, Mr. Droze believed the City’s response was appropriate. He also noted that under the Sunderland Family Treatment Center v. Pasco, state law doesn’t allow generalized fears of mental health treatment centers to serve as the basis for denying an otherwise acceptable land use application. The Aristo facility also qualifies as an essential public facility under the Growth Management Act, which requires the City to accommodate the use, which it has in this case. Exhibits Exhibits 1-25, identified in the “Exhibits” document for this project, were admitted into the record during the December 7, 2021 hearing. FINDINGS OF FACT Procedural: 1. Applicant. Aristo Healthcare Services, 707 S Grady Way, Suite 6046, Renton, WA 98057. 2. Hearing. A virtual hearing was held on the Zoom application at noon on December 7, 2021, Zoom ID No. 992 6295 8488. The record was left open through 5:00 December 8, 2021 for any persons who were unable to participate due to technical issues. 3. Project Description. Aristo Healthcare Services requests approval of a conditional use permit to operate an Intensive Behavioral Health Treatment Facility (IBHTF) in an existing building at 95 S Tobin St. The existing 19,262 square foot building consists of two (2) floors and an intermediate level. The Applicant proposes a change of use on the first level of the building (approximately 7,151 square feet) from commercial office use to a 16-bed IBHTF to rehabilitate persons that are transitioning out of Washington State psychiatric hospitals. Resident patients would each reside 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 3 CAO VARIANCE - 3 onsite in a community-based group setting for an average of 9 to 24 months during their rehabilitation and adjustment from inpatient life. The remaining space in the building would continue to be leased to third-party tenants and operated as commercial office use. The site includes a paved parking lot accessed from Lake Ave S with 44 surface parking spaces. The Applicant is proposing minor exterior site improvements to the parking lot and landscaping. Proposed interior improvements would support the proposed IBHTF and are anticipated to take six (6) months to complete. The site is located in Zone 2 of the Downtown Aquifer Protection Area, a high seismic hazard area, and a high erosion hazard area. 4. Surrounding Uses. Surrounding land uses to the north, south and west are composed of commercial use and single-family residential use is located to the east. 5. Adverse Impacts. There are no significant adverse impacts associated with the project. Pertinent impacts are more specifically addressed as follows: A. Aesthetic. The proposal will create no adverse aesthetic impacts. The proposal only involves minor exterior site improvements to the parking lot and landscaping. B. Traffic. The proposal will not create any significant adverse traffic impacts. The Applicant submitted a Trip Generation Assessment, prepared by Heath & Associates, Inc, dated June 2021 (Exhibit 7). The Assessment used a site-specific trip generation analysis to provide a forecast for the proposed on-site behavioral health component. By converting the first-floor general office area of the existing office building to a 16- bed behavioral health facility, the proposed development would yield approximately 7 net new AM peak hour trips (-1 inbound / 8 outbound), -1 net new trips PM peak hour trips (1 inbound / -2 outbound), and 56 net new average weekday daily trips. Staff concurs that the proposed use would not adversely impact vehicle or pedestrian traffic and concurs with the findings of the Traffic and Parking Assessment. The Applicant does include restriping the parking lot, but that striping will be subject to staff review and approval, which assures safe and efficient traffic and pedestrian circulation. Any increased traffic created by the proposed change of use would be mitigated for by the payment of transportation impact fees. Additionally, the proposal passed the City’s Transportation Concurrency Test (Exhibit 8), which considers such factors as the citywide transportation plan and trip capacity within allowed growth levels. C. Critical Areas. The proposal will not adversely affect critical areas. According to City of Renton (COR) Maps, the site is in a high seismic hazard area and is in the Wellhead Protection Area Zone 2. A geotechnical report was not required to be submitted with the formal land use application as no new buildings or expansions of the existing building are proposed. The Applicant is not proposing any significant site construction that is anticipated to negatively impact the aquifer protection area or require any mitigation. Additionally, no hazardous material uses or storage are anticipated with the proposed change of use. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 4 CAO VARIANCE - 4 D. Noise, light and glare. The proposal will not create any significant noise, light and glare impacts. There are no anticipated significant exterior changes proposed, including no new sources of noise, light or glare. E. Parking. As mitigated the proposal will not create any significant parking impacts because proposed parking complies with the City’s parking standards. Pursuant to RMC 4-4-080, the parking ratio for the proposed use could be based on general use, uses not specifically identified, which allows the Department of Community and Economic Development staff to determine which identified uses would be most similar based upon staff experience with various uses and information provided by the Applicant. The amount of required parking for uses not listed in the parking section of RMC would be the same as for the most similar use. Currently, the existing Site contains 42 standard parking spaces and two (2) ADA parking stalls for a total of 44 parking spaces. Based on the required general office parking standards, the existing 19,262 square foot building would be required to provide a minimum of 39 parking spaces and a maximum of 87 parking spaces. The Applicant is not proposing to add any new parking stalls to the existing parking lot, only restriping of the existing surface parking lot as part of the proposed change of use. Based upon staff experience with various uses and information provided by the Applicant and given that the patients would not retain vehicles onsite, general office use for the existing building should be retained for the purposes of determining minimum and maximum number of parking spaces required. Therefore, the existing 44 surface parking space at 95 S Tobin St would comply with the allowed range of 39 to 87 parking stalls F. Overconcentration and Suitability of the Site. The proposal will not create an overconcentration of IBHTF use in the vicinity of the project site. The proposed IBHTF would be the only IBHTF in the City of Renton. The project site is also suited for the proposed use. The building, as constructed, would allow for initiation of the use with only interior renovations to the existing building. Further, the City Center Community Planning Area and proximity to public transportation and other nearby services and amenities make 95 S Tobin St a suitable location for the first IBHTF in the City of Renton. G. Landscaping. Landscaping is currently provided in areas not occupied by buildings or paved areas to buffer adjacent properties from potentially adverse effects of the proposed uses. Existing street trees would remain and the understory would be infilled with new plantings and would be irrigated and maintained to current city standards. The Applicant does not anticipate any need for additional landscaping to buffer adjacent properties because no potentially adverse effects are expected. A condition 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 5 CAO VARIANCE - 5 of approval requires that the Applicant be required to provide a detailed landscape plan and irrigation plan with the building permit application. H. Public Safety. The proposal does not create any significant public safety impacts that merit any additional conditions or project denial. A comment letter was submitted by Scott Howell expressing concern over public safety impacts from the proposed facility. As noted in Ex. 12, 4-8 staff members would be working at the IBHTF facility at any given time with its 16 residents. As testified by Mr. Droze, the mental impairment of the residents do not rise to the severity of meriting involuntary commitment and there will be no violent sexual predators in the resident population. No evidence has been presented that the residents present a threat to public safety except for the fact that they suffer from mental illness not severe enough to merit commitment. As outlined in Conclusion of Law No. 3, the City has the burden of proof in establishing public safety problems to legally justify any conditions or adverse decision. Given the evidence in the record, that standard of proof is not met. There is no evidence of any threat to public safety, hence no conditions or denial can be issued on that basis. I. Compatibility. The proposal is fully compatible with surrounding uses. Most surrounding uses are commercial and likely more intense in character. As outlined above, the proposal will not create any adverse impacts that would adversely affect surrounding properties. Adjacent properties would observe little change to the activities or improvements of the site. carried out on the site other than the daily comings and goings. Traffic, noise, and staffing levels would be minimal. No changes are proposed to the exterior of the building. Inpatient beds would be limited to 16 and Aristo Healthcare Services anticipates staffing of approximately 17.4 FTEs. The facility would include indoor activity spaces and other onsite facilities such as laundry to limit the amount of external activity that is necessary. Conclusions of Law 1. Authority. Hearing examiner conditional use permits qualify as Type III review pursuant to RMC 4-8-080(G). As outlined in RMC 4-8-080(G), the Hearing Examiner is authorized to hold hearings and issue final decisions on Type III applications subject to closed record appeal to the Renton City Council. 2. Zoning/Comprehensive Plan Designations. The property is zoned Commercial Arterial (CA). The Comprehensive Plan designation is Commercial Mixed Use (CMU). 3. City/Public Has Burden to Establish Alleged Impacts Based Upon Disability. The City and/or members of the public have the burden to establish any impacts they believe result from the disabilities of IBHTF residents. For this application, that burden to the City/Mr. Howell specifically applies to the concern raised in a public comment letter by Mr. Howell that the residents of the IBHTF will serve as a source of crime and/or danger to surrounding uses. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 6 CAO VARIANCE - 6 The City’s burden to establish impacts based upon disability arises from the American with Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). Both Acts prohibit discrimination based upon disability in zoning. The ADA prohibits discrimination based on disability in programs, services, and activities provided or made available by public entities. Likewise, the FHA prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on disability. The House Report on the FHA emphasizes that its 1988 amendments were "intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special-use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community." H.R. Rep. No. 100-711 at 24. In this case, there is no question that the IBHTF suffer from disabilities protected by the ADA and FHA. The FHA and ADA both define a handicap, i.e. disability, to include “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” See 42 USC § 3602; 42 USC § 12102. As testified by Mr. Droze, IBHTF residents suffer from mental illness and need the assistance of IBHTF staff to transition from psychiatric hospitals to the “real world.” Mr. Howell is clearly concerned that IBHTF serve as a threat to public safety due to their mental illness. He would likely not have this concern if the IBHBT were an apartment complex for 16 residents. In this regard, any project conditions or denial based upon mental illness would be considered disparate treatment under ADA/FHA case law. Disparate treatment arises when a party expressly treats members of a protected group differently than others who are similarly situated. See Children's Alliance v. City of Bellevue, 950 F. Supp. 1491, 1495 (W.D. Wash. 1997). Despite the negative connotation of labelling an action “disparate treatment,” courts recognize that cities can have legitimate reasons for protecting their communities from the impacts of projects housing the disabled even if those impacts are attributable to disability. If the actions of a City result in disparate treatment, the City can validate those actions if the City can “show” that the action benefits the protected class or that its responds to legitimate public impacts. See Id. at 14991. The Applicant’s reference to Sunderland Servs. v. Pasco, 127 Wn. 2d 782 (1995) is an additional legal basis for placing the burden of proof on the City. Sunderland addressed the validity of Pasco’s denial of a special use permit for a group home for troubled teenagers. The denial was based upon findings that the proposal would threaten public safety. The State Supreme Court findings invalidated the public safety findings, determining that they were based solely upon community fears of the residents’ conduct. The Court did not find such fears sufficient to serve as competent or substantial evidence that the group home would result in public safety impacts. 1 The Children’s Alliance case was directly addressed with the facially disparate impact of a group home ordinance. The reasoning of the case appears to equally apply to disparate treatment in the application of an ordinance as well, such as application of the conditional use criteria in this case. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 7 CAO VARIANCE - 7 In this case, as outlined in Finding of Fact No. 5H, there are no statistics, data or any other evidence that establish that IBHTF residents serve as a threat to public safety. Consequently, no finding to that effect is merited since the burden of proof is on the City/Mr. Howell. 3. Review Criteria. Hearing examiner conditional use permits are required for religious uses in the R-10 zone per RMC 4-2-060G. Conditional use criteria are set by RMC 4-9-030. Conditional Use The Administrator or designee or the Hearing Examiner shall consider, as applicable, the following factors for all applications: RMC 4-9-030(C)(1): Consistency with Plans and Regulations: The proposed use shall be compatible with the general goals, objectives, policies and standards of the Comprehensive Plan, the zoning regulations and any other plans, programs, maps or ordinances of the City of Renton. 4. The criterion is met. The proposal is consistent with the City’s development standards and comprehensive plan for the reasons identified in Findings 16-20 of the staff report. The staff “unclassified use determination” that the IBHTF should be allowed in the Commercial Arterial zone is beyond the jurisdiction of examiner review, since that staff determination has not been timely appealed. Case law is clear that decisions that qualify as final land used decisions under the Land Use Petition Act, Chapter 36.70C RCW (LUPA), cannot be collaterally attacked after expiration of their appeal period in subsequent land use decisions. This principle, identified as finality in case law, has been reiterated in a long line of LUPA cases and has been extended to the concept that even if a decision is illegal, it cannot be challenged once its appeal period has expired. See, e.g., See Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11 (2005). This finality principle is statutorily derived from LUPA, which provides that appeals of final land use decisions are barred if not filed within 21 days of issuance. See Chelan County v. Nykreim, 146 Wn. 2d 904 (2002); RCW 36.70C.040. RMC 4-9-030(C)(2): Appropriate Location: The proposed location shall not result in the detrimental overconcentration of a particular use within the City or within the immediate area of the proposed use. The proposed location shall be suited for the proposed use. 5. The criterion is met. The proposal does not result in an overconcentration of IBHTFs for the reasons identified in Finding of Fact No. 5F. RMC 4-9-030(C)(3): Effect on Adjacent Properties: The proposed use at the proposed location shall not result in substantial or undue adverse effects on adjacent property. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 8 CAO VARIANCE - 8 6. As determined in Finding of Fact No. 5, as conditioned and mitigated, there are no adverse impacts associated with the proposal, so it will not result in substantial or undue adverse effects on adjacent property. RMC 4-9-030(C)(4): Compatibility: The proposed use shall be compatible with the scale and character of the neighborhood. 7. As determined in Finding of Fact No. 5, the proposal will not create any adverse aesthetic impacts or any other impacts that would create compatibility problems. RMC 4-9-030(C)(5): Parking: Adequate parking is, or will be made, available. 8. The criterion is met for the reasons identified in Finding of Fact No. 5E. RMC 4-9-030(C)(6): Traffic: The use shall ensure safe movement for vehicles and pedestrians and shall mitigate potential effects on the surrounding area. 9. The criterion is met for the reasons identified in Finding of Fact No. 5B. RMC 4-9-030(C)(7): Noise, Light and Glare: Potential noise, light and glare impacts from the proposed use shall be evaluated and mitigated. 10. As determined in Finding of Fact No. 5D, the proposal will not create any significant noise, light and glare impacts. RMC 4-9-030(C)(8): Landscaping: Landscaping shall be provided in all areas not occupied by buildings, paving, or critical areas. Additional landscaping may be required to buffer adjacent properties from potentially adverse effects of the proposed use. 11. The criterion is met as determined in Finding of Fact No. 5G. DECISION As conditioned, the conditional use permit satisfies all applicable review criteria for the reasons identified in the findings and conclusions of this decision and for that reason is approved. 1. The applicant shall provide a minimum area of one hundred and fifteen and one-half square feet (115.5 SF) for recycling and refuse collection and the area shall be located outside the alley and fenced or screened with a minimum six-foot (6') fence or landscaping. Refuse and recycling plans that provide plan view and elevations of the enclosure shall be reviewed and approved by the Current Planning Project Manager prior to building permit issuance. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONDITIONAL USE - 9 CAO VARIANCE - 9 2. The applicant shall provide a secured extended use bicycle parking area with a minimum of four (4) off-street bicycle parking stalls. Bicycle parking shall be shown on the floor plan with the building permit application and shall be reviewed and approved by the Current Planning Project Manager prior to building permit issuance. 3. The applicant shall provide a minimum of two (2) interior parking lot landscape areas that measure a minimum of eight-foot (8’) wide by 12-foot (12’) long with the building permit application. A detailed landscape plan shall be provided to, and approved by, the Current Planning Project Manager prior to building permit issuance. 4. The applicant shall be required to provide a detailed landscape plan and irrigation plan with the building permit application. The detailed landscape plan and irrigation plan shall be provided to, and approved by, the Current Planning Project Manager prior to building permit issuance. DATED this 20th day of December 2021. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) classifies the application(s) subject to this decision as Type III application(s) subject to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s decision must be filed within fourteen (14) calendar days from the date of the decision. A request for reconsideration to the hearing examiner may also be filed within this 14-day appeal period. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.