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HomeMy WebLinkAbout09-01-2022 - Home Depot I - LUA-21-000452 - HEX Reconsideration Decision1 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 Site Plan and Street Modification Recon - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Home Depot Hearing examiner site plan and street modification. PR22-000065 ) ) ) ) ) ) ) ) ) DECISION UPON RECONSIDERATION SUMMARY The City has filed an August 12, 2022 Request for Reconsideration on the above-captioned application on three issues. Issues No. 1-3 as identified in the reconsideration request are granted. The Applicant also submitted an informal request for reconsideration on August 15, 2022. The Applicant’s reconsideration request is granted in substance as well. The revisions to the August 9, 2022 Final Decision are identified in the final “Decision” section of this Decision Upon Reconsideration. The most significant legal error in the Final Decision was the erroneous premise that the parking modification could not be addressed in the Final Decision because it had not been advertised in the Notice of Application as a consolidated administrative permit application. The Final Decision had modified Condition No. 8 by the addition of a reference to RMC 4-4-080F10c to enable staff to approve the modification in subsequent administrative review. Conclusion of Law No. 16 below now recognizes that the RMC 4-4-080F10c parking modification requested by the Applicant did not qualify as a separate permit application that has to be separately noticed, but rather was a part of site plan review that is adequately advertised via notice of the site plan review. The rest of the corrected errors were attributable at least in part due to some lack of clarity in the positions advocated by the parties. Condition No. 25 was erroneously not revised as requested by staff because that request was made in an updated staff report that wasn’t labelled or dated to reflect the change from the originally distributed report. For future reference, to clarify staff report updates, the 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 Site Plan and Street Modification Recon - 2 issuance date and version number of staff reports should be clearly identified on the face of the reports so that it is clear what version of the report is entered into the record. Revisions to the impact fee portions of the Final Decision had to be made due to errors in the City’s concurrency memo. Revisions to staff recommended conditions No. 14 and 15 were made as part of reconsideration because the Applicant did not contest those conditions prior to the close of the hearing, but rather limited its argument to staff recommended condition No. 13. Evidence Relied Upon The administrative record developed for the August 9, 2022 Final Decision of the above-captioned is adopted by reference for purposes of this reconsideration request. Using the numbering of the August 9, 2022 Final Decision, the following exhibits were also admitted into the record: Exhibit 30: August 12, 2022 City Request for Reconsideration (via 8/15/22 email) Exhibit 31: August 15, 2022 Email from Applicant stating acceptance of corrected impact fee in Exhibit 30. As part of its reconsideration request, staff submitted a corrected concurrency memo to replace Exhibit 13. Since the record is closed the memo was not admitted. However, in Ex. 31 the Applicant acknowledged that “[w]e have accepted the imposition of the traffic impact fee.” This statement is construed as supporting staff’s assertion that the staff report and Ex. 13 concurrency memo erroneously identified that no impact fee was required for the project. Findings of Fact 6. The Findings of Fact of the August 9, 2022 decision are adopted by reference to the extent consistent with this Decision Upon Reconsideration decision. The numbering of these Findings of Fact is a continuation of the numbering of findings in the August 9, 2022 decision. 7. A final hearing examiner decision for the above-captioned permit applications was issued on August 9, 2022. 8. The Findings of Fact of August 9, 2022 Final Decision are adopted by reference to the extent consistent with this Decision Upon Reconsideration. 9. The City submitted a Request for Reconsideration dated August 12, 2022 and distributed to the parties and examiner on August 15, 2022. The request addressed three issues: Issue No. 1: Revision of Condition No. 25. Condition No. 25 requires 4.5 foot weather protection along Grady Way. In a revised staff report emailed to the Examiner on July 19, 2022, staff and applicant agreed to 3’11” weather protection to avoid sprinkler requirements. Revised Condition No. 25 itself did not reference any specific weather protection width, reserving that issue for subsequent staff review. 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 Site Plan and Street Modification Recon - 3 The Final Decision did not include the agreed upon revised Condition No. 25. The staff report submitted July 19, 2022 was in fact revised to reflect the agreed upon revision to Condition No. 25. Unfortunately, staff do not date their staff reports so it was unclear during the hearing that staff had prepared a revised staff report that was intended for submission into the record. For this reason, the Final Decision erroneously failed to consider revised condition No. 25. Issue No. 2: Deletion of Condition No. 8. Condition No. 8 as recommended in the staff report identified that the Applicant would have to revise its parking plan to meet a code required 342 parking spaces for the project unless a modification pursuant to RMC 4-4-080K was approved. The Applicant proposed 281 parking spaces. At hearing, staff testified that the Applicant had presented a parking analysis, Ex. 28, that justified a reduction in parking as authorized by RMC 4-4- 080F10c. Staff further testified that as a result of the parking study, they were supportive of the Applicant’s 281 parking spaces because the parking study met the criteria for modification under RMC 4-4-080F10c. The Final Decision modified Condition No. 8 to provide that the required 374 parking stalls could be reduced by approval of a modification under RMC 4-4- 080K or RMC 4-4-080F10c. Condition No. 8 as recommended by staff in the staff report did not include the option of reducing parking via RMC 4-4-080F10c. The Final Decision itself did not approve the reduction, because the RMC 4-4- 080F10c modification was not advertised as one of the permits under review in the notice of application. Condition No. 8 as recommended by staff was simply revised in the Final Decision to leave that modification decision to staff at the administrative level. Issue No. 3: Revision of impact fee. Finding of Fact 4F of the Final Decision identified that no impact fees were required of the project. This finding was based upon the City’s concurrency memo, Exhibit 13, which stated no impact fees were due. City staff identified in their reconsideration request that the concurrency memo was in error and that the $995,547.35 fee identified in Exhibit 23 was correct. During reconsideration review, the Applicant expressly waived objection by email to the correction. 10. In its Exhibit 31 email, the Applicant requested revision to Conditions 13 and 14 of the Final Decision, which comprise recommended conditions 14 and 15 of the staff report. The Exhibit 31 email, sent on August 15, 2022, is construed as a timely request for reconsideration for the August 9, 2022 Final Decision, which was mailed out on August 10, 2022. Condition 13 of the Final Decision requires that the wetlands, streams and associated buffer areas be placed within a Native Growth Protection Easement. Condition 15 requires the proposed shed display to be located outside of the 100 foot buffer and 115-foot stream buffer. During the hearing, the Applicant successfully argued that the stream and wetland buffers should be reduced by the impervious parking and access road areas that encroach into the buffers. However, via a letter presented by the 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 Site Plan and Street Modification Recon - 4 Applicant’s legal counsel, Exhibit 29, the Applicant limited its buffer argument to not adopting staff recommended Condition No. 13 and didn’t contest Final Decision conditions 13 and 14. Conclusions of Law 13. The Conclusions of Law of the August 9, 2022 Final Decision are adopted by reference to the extent consistent with this Decision Upon Reconsideration. The numbering of these conclusions of law follows that of the August 9, 2022 Final decision. 14. Authority. RMC 4-8-100I authorizes the hearing examiner to consider and rule upon timely requests for reconsideration. 15. Issue No. 1 Reconsideration Request Granted. The Final Decision erroneously failed to include a revised agreed upon staff recommended condition of approval for Condition No. 25. As identified in Finding of Fact No. 9, the Final Decision failed to consider an agreed upon revision to Condition No. 25. Condition No. 25 as originally proposed required weather protection at least 4.5 feet wide. Staff and Applicant agreed to 3’11” weather protection to avoid sprinkler requirements. RMC 4-3-100A2 provides that revisions to design standards such as the weather protection standard can be waived if the alternative prescriptive standard meets the applicable guidelines and intent. Staff’s recommendation for reduction of the weather protection to 3’11” is construed as a determination by the Community and Economic Development Administrator that the alternative width meets the guidelines and intent of the weather protection standard set by RMC 4-3-100E. Given the minor nature of the reduction and staff’s recommendation, it is concluded that the 3’11” width meets applicable design guidelines and intent as required by RMC 4-3-100A2. The request for reduction in width is granted and Condition No. 25 will be revised as requested by staff. 16. Issue No. 2 Reconsideration Request Granted. As identified in Finding of Fact No. 9, Condition No. 8 had not been revised as requested by staff during the hearing because the application had not been advertised as including a parking modification request. Instead, Condition No. 8 was revised to expressly provide that staff could still make a decision administratively on the parking request. However, upon reconsideration it is concluded that public notice of a consolidation parking modification under RMC 4-4-080F10c is not required. Unlike other modification requests governed by RMC 4-9-250, modification requests under RMC 4-4-080F10c are not separate permit requests but rather are a part of the review criteria for site plan review. As a part1 of the already advertised site plan 1 RMC 4-4-080F10c provides that the Community and Economic Development Administrator makes the decision on RMC 4-4-080F10c modification requests. However, site plan review is elevated from staff review to hearing examiner review under limited express conditions as outlined in RMC 4-9-200D2. The conditions that trigger examiner review under RMC 4-9-200D2 are construed as also triggering examiner decision making authority over modification requests made under the site plan criteria as well. This interpretation helps avoid circumstances where staff level decisions are made that may result in inconsistencies or incompa tibilities with subsequent, unanticipated design changes resulting from examiner level site plan review. 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 Site Plan and Street Modification Recon - 5 review process, separate public notice is not required and approval of the site plan can encompass approval of the modification request. 17. Issue No. 3 Reconsideration Request Granted. As outlined in Finding Fact No. 9, the Applicant has waived objection to staff’s determination that the concurrency memo was incorrect in identifying no traffic impact fees are due for the project. Finding of Fact No.4F of the Final Decision will be revised accordingly. 18. Applicant’s Reconsideration Request Granted in Part. Applicant’s request for reconsideration of Final Decision Conditions 13 and 14 is granted in part. Final Decision Condition No. 14, which requires relocation of the shed display, is inconsistent with Finding No. 5A2 of the Final Decision that determines that the wetland buffer doesn’t extend to the impervious surface encroachments of the project site. Final Decision No. 13, which requires that the wetland, stream and associated buffers be placed into a native growth protection easement, is consistent with the Finding No. 5A2 so long as it is understood that the buffers of the stream and wetlands stops at the impervious surfaces of the project site. DECISION UPON RECONSIDERATION The City’s request for reconsideration is granted in toto. The August 9, 2022 Final Decision is inapplicable to the extent inconsistent with this Decision Upon Reconsideration, including the following: 1. Condition No. 25 of the Final Decision is replaced with the following: The applicant shall demonstrate that the weather protection proposed comprise seventy-five percent (75%) of the façade facing S Grady Way. A revised site plan demonstrating compliance with this requirement shall be submitted to the Current Planning Project Manager at the time of Building Permit review for review and approval prior to the issuance of a Building Permit. 2. Condition No. 8 of the Final Decision is deleted. 3. The second paragraph of Finding of Fact No. 4F of the Final Decision shall be revised as follows: After preparation of a traffic study and concurrency review, the Applicant and City staff have agreed to $995,547.35 in traffic impact fees. The fees were the result of an independent fee calculation as authorized by RMC 4-1-190H2 and documented in Exhibit 23. This finding is revised as a result of a staff request for reconsideration. The original finding identified that no impact fees were due, based upon the City’s May 16, 2022 concurrency memo, Exhibit 13. The Applicant prepared a traffic study, Ex. 11, that determined that the proposal would generate a net of an additional 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 Site Plan and Street Modification Recon - 6 43 AM peak hour trips and a reduction of 42 PM peak hour trips. The City’s concurrency review determined that since there are no new net trips generated by the proposal, the project meets the City’s concurrency standards and no transportation or impact fees are required unless imposed through SEPA review. The SEPA review did not impose any off-site traffic mitigation or impose any fees. SEPA mitigation was limited to requiring frontage improvements along Grady Way. 4. Condition No. 14 of the Final Decision is deleted. 5. Condition No. 13 of the Final Decision is revised as follows: All onsite wetlands, streams, and associated buffer areas shall be placed within a Native Growth Protection Easement (NGPE). The buffers of the streams and wetland shall be understood to end at the impervious surfaces of the project site as outlined in Finding of Fact No. 5A2 of the Final Decision. The NGPE shall be recorded prior to the issuance of a Temporary or Final Certificate of Occupancy for the proposed building. 6. Finding of Fact No. 5A4 is revised as follows: 4. Wetlands. A Wetland and Stream Delineation Report, prepared by The Watershed Company, dated January 3, 2022 (Exhibit 6) was submitted with the land use application materials. The report identified one depressional wetland (Wetland A) on the southern portion of the project site. The report classified Wetland A as a Category III wetland with a habitat score five (5) points, requiring a standard buffer of 100 feet in accordance with Renton Municipal Code (RMC) 4-3-050G.2. No site improvements are proposed that would impact Wetland A or its associated 100-foot buffer area, however the applicant is proposing to utilize existing surface parking spaces within the 100-foot wetland buffer area for designated “Shed Display”. The proposal to display sheds within the 100-foot wetland buffer would not be a permitted use as there appear to be alternative locations on the project site that could accommodate the shed display that are outside of the buffer. A condition of approval requires that the shed display be relocated outside of the required 100-foot wetland buffer and the 115-foot stream buffer. As determined in Finding of Fact No. 5A2, the wetland buffer stops at the impervious surfaces of the project site. DATED this 1st day of September, 2022. 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 Site Plan and Street Modification Recon - 7 City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) classifies the consolidated application(s) subject to this decision as Type III applications 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.