Document Redmond_doc_047cebf3eb

1 Hearing Examiner Sharon A. Rice 2 3 4 5 6 7 8 BEFORE THE HEARING EXAMINER FOR THE CITY OF REDMOND 9 In the Matter of the SEP A Appeal of 10 11 WPDC CLEVELAND, LLC 12 of approved Building Permit BLDG-20 16- 09802/BPLN-2016-02092 authorizing 13 alterations to the structure at 16390 Cleveland Street, Redmond 14 Issued Februar 17, 2017. File Nos: BLDG-2016-09802 BPLN2016-02092 APPELLANT WPDC CLEVELAND, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT 15 I. SUMMARY 16 Over a nine-month period beginning in June 2016, the City conducted a surreptitious, 17 piecemeal review of the Origins Cannabis project's proposed conversion of an abandoned 18 warehouse into a marijuana retail sales business ("Project"). Along the way, the City 19 disregarded basic permit processing, notice and substantive code requirements, culminating 20 in the approval of limited interior renovations for a non-code-compliant building. 21 Confronted with the deficiencies in the process and application, the City issued a "stop work 22 order" for some improvements. Applicant then withdrew the required Site Plan Entitlement 23 application for all remaining improvements windows and doors) needed to make the 24 building habitable and code-compliant. The Project cannot proceed "as-is" or at all. 25 Appellant respectfully requests that the Hearing Examiner grant this motion, reverse the 26 City's decision to issue the building change of use permits, and issue a stop work order. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT-I PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 2 3 4 5 6 7 8 9 10 II. STATEMENT OF ISSUES This appeal addresses the City's issuance of two permits, BLDG-2016-09802 and BPLN2016-02092, for the Origins Cannabis Project (collectively, the "Decision"). Appellant WPDC raised 13 enumerated issues with subparts in the Appeal. Appellant seeks partial summary judgment on the following issues: A. Whether the City Erred in the Piecemeal Processing of the Origins Cannabis Project's Applications, Prematurely Issued the Decision and Deprived WPDC of Required Notice and Due Process? B. Whether the City Erred by Failing to Require Code-Compliant Onsite Parking for the Change of Use from Warehouse/Storage to Marijuana Retail Sales or Other Commercial Use? C. Whether the City Erred by Failing to Require Code-Compliant Onsite Parking for the 11 Increased Floor Area from Warehouse/Storage to Marijuana Retail Sales or Other Commercial Use? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 D. Whether the City Erred by Failing to Require Code-Compliant Onsite Garbage/Recycling, Off-street Parking For Service Vehicles and the Building is Not Code Compliant? E. Whether the City Erred by Allowing a Marijuana Retail Use to be Located Within 1,000 Feet of the Downtown Park Playground? F. Whether the City Erred by Failing to Issue a "Stop Work Order" for All Approved Work Subject to this Appeal and Upon Notice that the Decision was Issued in Error, Obtained by Misrepresentation of Material Fact and Exercised Contrary to Code? III. EVIDENCE RELIED UPON Appellant relies on the March 2, 2017 Appeal of Origins Cannabis Type I Pennit BLDG-2016-09802 and BPLN2016-02092 and attachments thereto ("Appeal"); the Declaration of Aaron M. Laing and exhibits thereto; the Declaration of Kevin R. Wallace and exhibits thereto; the Declaration of Michael J. Read, P.E. and exhibits thereto; the Declaration of Matthew M. Woolsey and exhibits thereto; the Declaration of Jason Bailey; the Declaration of Lee Keller and exhibit thereto; and the Declaration of Rick Driftmier, AlA and exhibit thereto. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 2 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys al Law US Bank Cenlre 1420 Slh Ave., Suile 3400 Sealtle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 IV. MATERIAL FACTS 2 In addition to the facts set fmih in the Appeal, Appellant respectfully requests that 3 the Hearing Examiner consider the following material facts on four key topics: the Project 4 Site's Existing Conditions & History, Application and Process Issues, the Redmond 5 Downtown Park, and Deficiencies & Impacts. 6 A. Project Site's Existing Conditions & History 7 The Origins Cannabis Project is proposed to be located in an existing, abandoned 8 warehouse building at 16390 Cleveland Street, Redmond, W A 98052, King County tax 9 parcel number [PHONE REDACTED] (the "Project Site"). See Appeal. Appellant owns the adjacent 10 abutting parcel to the Project Site, which parcel is located at 16330 Cleveland Street (the 11 "WPDC Property"). See id., Wallace Decl., 2-4, Ex. A. The WPDC Property and the 12 Project Site are in the City's Downtown- Old Town zone. See Appeal. The WPDC 13 Property is developed with a retail building and associated surface parking, and it is 14 occupied by the locally-owned Prime Steakhouse restaurant. See Appeal; Wallace Decl., ~ 4; 15 Bailey Decl., 2-3. The WPDC Property surrounds and abuts the Project Site on the west 16 and nmih sides; the parking lot and garbage I recycling areas of the WPDC Properiy abut the 17 exterior of the building on the Project Site. See id. 18 The Project Site has no onsite parking and no exterior garbage I recycling facilities; 19 the Project Site has no easement rights over any portion of the WPDC Property, other than a 20 five-foot wide maintenance easement around the exterior. See Appeal; Wallace 21 Decl., 2-5, Ex. A. The easement cannot be used for construction, parking, garbage I 22 recycling, deliveries or any other purpose other than to maintain the exterior of the existing 23 building. See id. 24 The abandoned warehouse on the Project Site has not been occupied or used for any 25 City-authorized or permitted use since at least January 1, 2000. See Laing Decl., 2-3, Ex. 26 A. Local architect Rick Driftmier, whose offices have been located near the Project Site APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 3 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- since 2002, has not seen any businesses operating in the old warehouse for at least the past 2 15 years. See Driftmier Decl., 1-7. Public records for the Project Site for activities in the 3 warehouse over the past 17 years include code enforcement records and police records for 4 unauthorized activities in the building. See Laing Decl., 2-3, Ex. A. 5 Since the outset of this process last June, the City and the Project proponent have 6 repeatedly and unequivocally recognized that the prior I existing use of the building was for 7 warehouse I storage, not for retail, and that a land use permit was required. See generally 8 Laing Decl., 4-20, Exs. B-R. On June 6, 2016, applicant owner I agent Sean Miller sent 9 an email to the City, with the following questions "regarding a use change and remodel 10 we're looking to begin": 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. The property does not currently have water or sewer inside the building. Are water and sewer available and what will be the approximate fees to bring them to the site? 2. For a use change from warehouse to retail are Water and Sewer required? See Laing Decl., Ex. B (emphasis added). In response to follow-up questions from City Engineer Min Luo and City Planner Gary Lee, on June 13 and 15, 2016, Mr. Miller further explained: I estimate approximately 60-75 customers per day would be entering the facility. It will be used for retail purposes. The building currently is used for warehouse space and office space . So it will be converting [from) warehouse to retail. We are simply looking to remodel the interior and exterior. We are looking to improve the property by bringing in water/sewer and installing a bathroom. We envision keeping the old town theme and putting a reclaimed and or wood/brick exterior fa<;ade. We are looking to set the building up for retail sales The major dilemma we are trying to deal with is the parking. See id. (emphasis added). APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 4 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- On July 5, 2016, Mr. Lee responded that, because the "property has been grand- 2 fathered regarding parking in the past no parking would be required for this building 3 as general retail/office use" and referenced required frontage improvements, due to the 4 value of the proposed Project. See id., Ex. C (emphasis added). Two weeks later, in 5 response to inquiry from Applicant's attorney Vicki Onico, Mr. Lee further explained both 6 that "parking had been grandfathered for the existing square footage of the building" and 7 that "The anticipated exterior modifications to the building will require an 8 Administrative Modification application review approval (prior to issuance of a 9 building permit), which also requires Design Review by the Design Review Board." See 10 id., Ex. C (emphasis added). 11 B. Applicant and Process Issues 12 On July 29, 2016, City Development Services Center Supervisor Carol Lewis 13 assigned City Building Plans Examiner Janise Goucher to the "land use permit" for the 14 Project under pennit file number "LAND-2016-01420 Andona." See Laing Decl., Ex. D. On 15 August 9, 2016, City Public Works Project Manager Lisa Singer emailed Mr. Lee regarding 16 the pre-application meeting for permit number LAND-2016-01420, asking whether Mr. Lee 17 had spoken to "utilities about [the Project's] water and sewer connection" or asked Applicant 18 whether "they are ok with chopping off the building and doing the frontage improvements?" 19 See Laing Decl., Ex. E. 20 On September 1, 2016, Ms. Goucher and City Plans Examiner Anita Randall held a 21 "pre-application meeting for Andona (16390 Cleveland)" and learned for the first time that 22 Applicant proposed to have "recreational cannabis" as the use. See Laing Decl., Ex. F. Ms. 23 Goucher then emailed City Planner Jason Rogers to confirm that the location was approved 24 for recreational marijuana retail sales, who responded that "The location is acceptable for 25 retail marijuana" and that he had "also conveyed to anyone who asked that the site/building 26 is extremely challenging, but I'm not sure that part of my message gets received©" See id. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 5 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 That same day, City Building Code Enforcement Officer Deborah Farris emailed Ms. 2 Goucher and Ms. Randall to direct them to the City's retail marijuana regulations structural 3 requirements in Redmond Zoning Code (RZC) 21.41.050, which require that" marijuana 4 retailers must operate in a permanent structure designed to comply with the City Building 5 Code." See Laing Decl., Ex. G. 6 Between November 7 and 17, 2016, Mr. Lee, Mr. Miller and various City officials 7 exchanged emails about the value of the proposed Project's improvements and the value of 8 the existing warehouse building to determine whether and to what extent frontage and other 9 improvements would be required. See Laing Decl., Ex. H. Mr. Miller provided the City an 10 October 3, 2016 Appraisal Report prepared by CJM for Andorra Ventures LLC for the 11 Cleveland Street Building located at 16390 Cleveland Street, Redmond, W A ("Appraisal 12 Report"), and Mr. Miller represented to the City that he estimated the value of the 13 improvements at $131 ,977. See Laing Decl., Exs. H & Y. The Appraisal Report set the 14 building value at $250,000 using a cost approach; the City estimated its value (based on the 15 cost to rebuild) at $158,833.11 or $198,140.40. See id. 16 The Appraisal Report's author wrongly assumed that the existing warehouse had 17 water I sewer, stating "Public services are present and service is adequate." See Laing Decl., 18 Ex. Y at 5, 26. The Appraisal Report also repeatedly states, "According to Mr. Miller, the 19 estimated renovation budget is $235,000 with a construction timeline of 12 to 14 20 weeks." See id., Ex. Y at 5, Existing Condition, 29, & 62. The Appraisal Report also states: 21 "The intended use of this appraisal is to assist in establishing market value for 22 acquisition purposes. The report is intended for no other use." See id., Ex. Y at 11 23 (emphasis added). 24 Professional construction cost estimator Matthew Woolsey of The Woolsey 25 Company has prepared a Unit Cost Estimate for the improvements identified in the Origins 26 Cannabis approved building permit submittal and the related (now withdrawn, as detailed APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 6 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 below) Design Review Board submittal. See Woolsey Decl., 2-10, Exs. A-1. According to Mr. Woolsey, the actual, conservative value of the Origins Cannabis Project's approved and planned improvements is $545,603-more than twice the estimated value of the existing warehouse building. See id., ~ 10, Ex. I. On December 9, 2016, Applicant submitted applications for the Origins Cannabis Project's building permit (BLDG-2016-09802) and change of occupancy permit (BPLN- 2016-02092 to change the use from "warehouse" to "retail." See Laing Decl., Ex. P. There is no reference to the "land use pennit" number "LAND-2016-01420 Andorra" (the pennit number assigned in July and used for the pre-application conference) in any of Applicant's building permit or change of use permit submittal materials; there is no reference to the proposed use being "marijuana retail sales" use in any of the building permit or occupancy permit submittals-the pem1its only reference "retail suites, storage and office." Compare Laing Decl., Ex. D. with Ex. P. On January 4, 2017, City Planner Cameron Zapata emailed Mr. Miller the following: Hi Sean, Per our phone conversation, I am sending this email to recap what we had discussed. • The previous use was storage/warehouse. • The retail marijuana shop will only be going in retail space A, however since the entire space is changing occupancies, impact fees will be generated for the whole structure. Please see the attached impact fee estimate. • The exterior improvements can be a separate permit, however the drawings will be required to be updated to only reflect the interior improvements. An issue matrix will be sent to you by J ozanne Moe (plans examiner) once all reviewers have completed their review and this comment will be included in the matrix. • We had also discussed that the exterior work will require [you] to go through the Design Review Board, I have attached the APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT-? PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 application and schedule to this email for your reference. The approval of the DRB will hold up the approval of the exterior alteration permit . See Laing Decl., Ex. I. (italics in original; bold I underlining added). In response, Mr. Miller asked if his "architect could redraft the drawings only showing the interior modification" and explained that the "application was intended to be for the interior only with only replacing doors and windows on the exterior." See id. Ms. Zapata responded, stating "Hi Sean, Any work on the exterior is considered a commercial exterior alteration permit. So if it (is) interior only then windows would not be included." See id. On January 12, 2017, Mr. Miller's architect Tom Monis followed up with Ms. Zapata by email, proposing the following solution to the interior versus exterior pennit issue raised on the 4 111: Hi Cameron, Regarding your comments on the Origins Tenant Improvement project, this existing building is currently unheated with a simple sliding barn door assembly-which would not be appropriate for a retail establishment. Is it acceptable to simply cloud the exterior storefront portion of work and identify is as "work to be done under a separate permit"? The reasons are the energy calculations need to be completed based on this design See Laing Decl., Ex. J. (emphasis added). Per this exchange, the Site Copy of the approved architectural plans for the Project dated January 25, 2017 state in red letters in cloud boxes "Interior Only Pennit," "All exterior work is under a separate permit," "PL: Exterior modifications are not to be included within this permit," all windows, doors and other exterior features are placed in "cloud" outlines with the statement "NOTE: ALL EXTERIOR WORK TO BE SUBMITTED UNDER A SEPARATE PERMIT APPLICATION." See Woolsey Decl., Exs. A. The designs and materials for the exterior work windows, doors, cladding, etc.) were APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 8 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 submitted for review by Morris Architects on March 21, 2017 under Site Plan Entitlement permit number LAND-2017-00290. See Laing Decl., Ex. R; see also Woolsey Decl., Ex. H. Between January 25, 2017 and February 10, 2017, City review staff also determined that the Project was erroneously exempted from transportation impact fees, after Mr. Lee raised the following question: For this cinderblock building that was used as warehouse (not retail sales) should we charge them impact fees for retail sales for all of their square feet? And give them credit for "warehousing/storage" for all of the existing square feet? See Laing Decl., Ex. K (emphasis added). City Engineer I Planner Andy Chow also asked whether Applicant submitted any sort of transportation impact study a "trip general report") to show that estimated PM peak hour trips would not exceed 30 but received no response. See id. Professional transportation engineer Michael J. Read of Transportation Engineering NorthWest (TENW) has prepared a Comparative Trip Generation and Parking Generation Analysis for Origins Cannabis Project. See Read Decl., 2-7, Exs. A-D. Noting that "marijuana retail sales" is not a use that has been studied or included in current professional publications, Mr. Read conducted site surveys of existing marijuana retail sales businesses nearby and in the Puget Sound area. See id. Mr. Read concluded the following: Based on the evaluation of standard ITE trip generation and parking generation rates as well as observed marijuana retail stores at other representative locations within the Puget Sound region, the proposed Redmond Origins project is estimated to generate approximately 120 new weekday PM peak hour trips (61 entering, 59 exiting), which would trigger both a review of transportation concurrency and traffic operational impacts under City code. As noted in the evaluation, proposed marijuana retail use has substantially higher vehicle trip generation (by more than a factor of 1 0) than typical retail uses and a significantly higher trip generation rate (by more than a factor of 100) in contrast to historical warehouse uses. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 9 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 Peak demand of parking generation is estimated to range between 21 and 27 stalls during the p.m. peak period of adjacent street traffic. Given that no on-site parking is available to the subject property, parking impacts would occur to both public on-street parking as well as available private parking lots immediately adjacent to the site and the vicinity, resulting in significant impacts. See id., Ex. D (emphasis added). On February 22, 2017, Appellant WPDC first learned of the Origins Cannabis Project when Kevin Wallace received an email from Mr. Driftmier, who ale1ied Mr. Wallace that construction activities were occurring in the building on the Project Site. See Wallace Decl., ~ 7; Laing Decl., Exs. L & M; Driftmier Decl., ~ 4. As of that date, WPDC had not received any notice of any permit application or permit approval for any activity on the Project Site from the City of Redmond. See Wallace Decl., ~ 7. On February 24, 2017, Mr. Wallace contacted Mr. Lee to inform him that WPDC would file an appeal and asked that, as a courtesy, Mr. Lee notify Applicant to avoid Applicant incurring any unnecessary expense. See id., 7-8, Ex. B; see also Laing Decl., Exs. L & M. Mr. Lee then notified Mr. Miller of the forthcoming appeal and separately notified City Assistant Development Director Jason and Ms. Lewis that the City had erroneously issued the Origins Cannabis building permit for the interior improvements without requiring at least one parking stall for the proposed mezzanine. See Laing Decl., Exs. L & M. Following an internal exchange with Mr. and Ms. Lewis, Mr. Lee then infonned Mr. Miller and Applicant's attorney Ms. Orrico that the City had "issued [the tenant improvement pennit] in error" and that the representation in July 2016 regarding "grandfathered" parking did not apply to the mezzanine as "no mezzanine was proposed at that time." See id., Ex. L. In notifying Mr. Miller of the forthcoming appeal from WPDC, Mr. Lee explained: "Because you are required to have an approval of a pending Administrative Modification application to modify the exterior, I believe that [Mr. Wallace] will also appeal that APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 10 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 approval. His appeal(s) will then require a hearing by the Hearing Examiner." See Laing Decl., Ex. L. On March 3, 2017, the City issued a "stop work order" for the mezzamne improvements but allowed the remainder of the interior improvement work to continue. See Laing Decl., Exs. N & P. On March 21, 2017, Applicant submitted an application for the An dona Site Plan Entitlement, permit number LAND-2017-00290, to allow for the proposed exterior improvements to be reviewed, per Mr. Lee's direction to Mr. Miller on July 5, 2016. See Laing Decl., Exs. C & R; see also id., Exs. 1-J. On April 6, 2017, the City of Redmond Design Review Board held a public hearing on the Site Plan Entitlement application for the Project. See Laing Decl., Exs. R & Z; Wallace Decl., 10-11, Ex. C; Woolsey Decl., Ex. H. During the public hearing, Mr. Lee responded to questions from the Design Review Board and made the following comments about the Origins Cannabis Project's application submittal materials, the City's processing of the same and the next steps in the process (identified by page and line number from the official transcript of the recording): Page 5 5 MR. LEE: I'm Gary Lee, City of 6 Redmond, and this is the Andorra project. This is the 7 exterior remodel of the existing (indiscernible) on 8 Cleveland Street. And we have a sign-in sheet for 9 people who would like to speak to this. And I would 10 like to address a couple things first. Page 6, line 17- Page 7, line 4 (MR. LEE) 17 So specifically addressing the parking 18 and garbage comments. Parking, the building has 19 nonconforming parking status. They do have to provide 20 additional parking for the addition of the mezzanine. 21 They can provide or with that right obtain parking off APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 11 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Allorneys al Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 22 site by an easement or agreement from a neighbor who 23 would grant that to them for (unintelligible) or 24 whatever the agreement is. 25 There may be a requirement for 1 additional parking for the marijuana retail sales use. 2 They would have to provide that required parking in 3 the same manner, by agreement off site agreement with 4 a neighbor. Page 8, line 3- Page 9, line 2 3 CHAIRMAN MEADE: Why is it not all up 4 together? Is there a potential for a different 5 tenant? 6 MR. LEE: Yes, it is. The remaining 7 portion. And Applicant can speak to that too. It 8 can actually be marijuana may not go in there. It 9 could be tennis shoes or bubble gum, but they also, 1 0 they have a intent to include marijuana as in one of 11 the lease spaces. 12 CHAIRMAN MEADE: I see. 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 MALE VOICE: I have a question. I'm just curious as to why that we didn't do, like, a preapplication review of this? Why the move straight to approval for tonight? MR. LEE: That's a good question. We did have a preapplication meeting, but not with the Design Review Board earlier in the year, and at that point the revisions weren't as dramatic or (unintelligible). They jumped the gun. They submitted a building permit application and the we issued a part of the building permit and then there was an appeal on that building for the application. So now we've kind of gotten ourself all twisted up in time and processing. So we jumped into just approval. Page 37, line 11- Page 39, line 7 11 CHAIRMAN MEADE: Okay. I have a 12 couple of follow-up questions here. You said the 13 I'm not sure how the evaluation was shown for the 14 building originally. The King County (unintelligible) 15 shows that it's a $23,500 building, with a $329,000 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 12 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 16 lot. What is what has the appraisal been delivered 1 7 to you, and 18 MR. LEE: Yeah, Applicant provided 19 us some appraisal numbers. Had an appraisal. I have 20 some numbers that they have provided to us at a 21 $250,000 value. Before requiring the appraisal, we 22 had our building department do a replacement cost 23 value on the building and it came up pretty close, so 24 that's, that's (unintelligible). 25 CHAIRMAN MEADE: I know some 1 municipalities are required to provide an estimate 2 appraisal from a professional in this situation to 3 show that we're in compliance. It would appear that 4 don't know what the budget of their project is, 5 but it does appear that it's going to exceed. Is it a 6 hundred percent of the value of the building before 7 you have to? 8 MR. LEE: A hundred percent of that, 9 yeah. So that's-- they still haven't provided us 10 with the right cost estimate, so that, that's going to 11 have to be provided to us. 12 13 CHAIRMAN MEADE: Yeah. MR. LEE: But the original early 14 estimates, of which Mr. Laing referred to, that was 15 very early on and was, I'm sure, very, you know, bare 16 bones. So it's gotten a lot bigger now. 17 So that is a big question now whether 18 or not they will be equaling or exceeding that value. 19 CHAIRMAN MEADE: Yeah. I would 20 suggest the city staff should have a continuing 21 understanding of what the budget is. 22 I attempted to do a project down the 23 street on a similar building-- I don't know-- five 24 years ago and it didn't pass, though, because we would 25 have had to tear a corner of the building down before 1 the sidewalks were done. There was no power, there 2 was no water. The building was uninsulated. 3 It was a very interesting kind of 4 building, just right behind the old Redmond hotel, and 5 I know that we were going to be right at the valuation 6 and beyond really quickly with the modest 7 (unintelligible) of that space, so APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 13 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 Page 40, line 22- Page 43, line 19 22 CHAIRMAN MEADE: Gary, while they're 23 looking, can you talk to us about the hearing examiner 24 meeting? What 25 MR. LEE: Sure. 1 2 3 4 5 6 7 8 9 10 11 12 MALE VOICE: would be happening and so forth, where they are in that process. MR. LEE: So where we are right now is we got, like, extended the hearing to a date which would hopefully include the conclusion of this (unintelligible) timeline, which would be the issuance of the decision on this, so that that decision is appealable and at that time that we would have the hearing. So as we mentioned earlier, we had an appeal on a building permit and the building permit appealed basically all the things that we're 13 about here, marijuana use, and the appeal is 14 somewhat not ripe for appeal because the land use 15 permit should be building first and then consolidating 16 all the issue into one appeal hearing. 17 So the appeal hearing will probably be 18 extended. We do have a request for information 19 regarding traffic. So that the take up committee will 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 be asking for some more information regarding the traffic impact analysis; therefore, probably will have --definitely have to reschedule the hearing to get that material in and reviewed before a decision is issued. So people usually don't appeal building permits. Just have that's what they appeal here. They usually appeal land use permits, and usually there's a land use permit that has the public notice that goes out. So there was a mistake here in that the building permit was issued for the tenant improvement prior to this. There should have been this site plan entitlement application or administrative modification application submitted before the building permit was issued. So trying to get that all tal{en care of. CHAIRMAN MEADE: So, I'm sorry. Just to follow up on that a little bit. So was the city-- what is the city going to do or what is the city APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 14 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] PDX\131246\221725\AAL\20565580.12 ---PAGE BREAK--- 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 14 currently doing with the building permit application? 15 MR. LEE: The building permit 16 application that was appealed for was a tenant 17 improvement for the interior only including this 18 mezzanine. There was a plan shown for the exterior 19 modifications, but we told them we cannot issue that 20 permit until this application is submitted. 21 So they gave so the building permit 22 that was issued was only for the inside, okay, and 23 since that building permit was issued and since they 24 have appealed that, we have issued a notice of 25 correction on that interior building permit that said 1 you continue you continued to work you can 2 continue to work on the inside, but not on the 3 addition of the mezzanine, because the mezzanine 4 requires additional parking stall. 5 You need to provide us with the proof 6 that you have additional parking stall, by an 7 agreement, by easement, and you have to have this 8 application approved first. 9 CHAIRMAN MEADE: One more question. 10 On the tenant improvement plans, did that call for 11 plumbing and power, heating? 12 MR. LEE: So with this-- yes, yes. 13 And there will be some construction plan that will 14 require mutual hookups. As far as this, there will be 15 some more construction review to provide all necessary 16 water service, because that's-- the building permit 17 application is for a change in occupancy from a 18 warehouse to a commercial space that requires 19 plumbing. Page 45, line 17- Page 47, line 2 17 MR. KRUEGER: Well, I'm not ready to 18 vote on this. I want this to go through the normal 19 procedures. I want to know how this fits in with the 20 current historic core versus what planning commission 21 might be reviewing it and adopting. 22 I mean, it needs to be-- you know, 23 per what was in place when they made their application 24 that they're making and, you know, it would need to 25 have a staff letter and recommendation, an explanation 1 on exactly how it does meet the different aspects of APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 15 SCHWABE, WILLIAMSON & WYATT, P.C. PDX\131246\221725\AAL\20565580.12 Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 the design guidelines. I mean, they can go ahead with the improvements on the inside, I mean, if they want to take the chance of doing that, I guess, if that's been, been issued, but as far as the exterior and the outside, just go and have a complete application that shows us, you know, all the different aspects that we're going to want to see. CHAIRMAN MEADE: Yeah, I agree. I mean, coming from a place, obviously, (unintelligible) it's kind of gotten out of hand where it should be. I consider that the valuation is really that the building has to be replaced or comport to code, because I'm not certain that that valuation of the project is, is the project is. (Unintelligible) knowing what's remained of this building, seeing these plans, I don't see the building remaining. Some (unintelligible), some walls. Utilities, new systems, new windows, new structure. It's a whole new everything. It's a new building, so On top of that, we need a complete submittal to see all the elevations of the building, including roof, so we can see what's going on (unintelligible) about, what other treatments (unintelligible). See Laing Decl., Ex. Z (emphasis added). On April 13, 2017, City of Redmond Mayor John Marchione responded to a citizen comment from a local business owner regarding the Origins Cannabis Project, saying Cliff, Thank you for your email. So far, the City has only authorized remodeling of the interior. We have not authorized any use beyond storage. If the owner wants to use the building for retail uses he would have to make upgrades, including providing for parking. As part of the review process for this property, City staff will be analyzing the parking. I appreciate your comments and will share them with staff. See Laing Decl., Ex. Q (emphasis added). APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 16 PDX\13!246\22!725\AAL\20565580.!2 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 On April 20, 2017, Applicant withdrew the Site Plan Entitlement application and 2 informed all parties to the appeal that it "would not be refiling it"; the City notified parties of 3 record, including Appellant WPDC, by letter dated April 25, 2017. See Laing Decl., Exs. 0 4 &AA. 5 C. Redmond Downtown Park 6 On April 21, 2015, the Redmond City Council unanimously approved the adoption 7 of the Redmond Downtown Park Master Plan for a new park located at 16101 Redmond 8 Way, less than three blocks (about 800 feet) from the Origins Cannabis Project Site. See 9 Laing Decl., Exs. S & X; Wallace Decl., ~ 16; Appeal. Among the elements of the approved 10 Master Plan, the Downtown Park will feature a splash playground for children described 11 variously as a "Water play area," "splash pad" and "Fountains of water jets-Fun for the 12 kids!" See Laing Decl., Exs. S, U, V & X. 13 On August 5, 2015, the State of Washington Department of Commerce notified the 14 City that it had awarded the City a $3,000,000 grant for the construction of the Downtown 15 Park. See id., Ex. T. On August 1, 2016, the City issued the approved Site Plan Entitlement 16 permit for the Downtown Park; the Site Plan Entitlement application had been submitted on 17 June 13, 2016, and Mr. Lee served as the Planner. See Laing Decl., Exs. U, V & X. The 18 Site Plan Entitlement states on the fourth page that "This decision is not vested to the 19 development regulations in effect until a complete building penni t application is submitted." 20 See id., Ex. U. On September 19, 2016 and October 24, 2016, the City's Parks Department 21 submitted applications for the two building permits needed to construct two structures (a 22 restroom and a pavilion) within the Downtown Park. See id., Ex. W. Construction of the 23 Downtown Park commenced in the fall of 2016 and is ongoing, with a projected opening 24 date in 2018. See id. 25 26 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 17 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- D. Deficiencies & Impacts 2 Local architect Rick Driftmier has reviewed the approved plans for the Origins 3 Cannabis interior renovation permit and determined the plans are deficient for several 4 reasons: the project's change of use requires the whole building to be brought up to current 5 code for Americans with Disabilities Act ("ADA") standards, energy code, International 6 Building Code and City zoning code requirements; the pennit process I sequencing did not 7 follow City code; if the interior improvements are allowed to proceed without the required 8 exterior improvements, then the building will not meet energy code, plumbing, building 9 exiting or ADA requirements. See Driftmier Decl., 1, 2, & 5-7, Ex. A. 10 Since late-February 2017, representatives and contractors associated with Applicant 11 have repeatedly trespassed on the WPDC Property by parking in the Prime Steakhouse 12 parking lot while working in the building and by having materials and a porta-potty dropped 13 off in the parking lot. See Bailey Decl., 2-12; Keller Decl., 2-8, Ex. A; Wallace Decl., 14 ~~2-14. 15 In early March, 2016, Mr. Miller approached Prime Steakhouse owner Jason Bailey 16 during lunch and asked to lease four spaces in the parking lot, stating that Mr. Miller's 17 customers "would park there anyway." See Bailey Decl., ~ 6. On April 7, 2017, customers 18 for the Prime Steakhouse were unable to park in the lot for a lunch reservations and called to 19 cancel; Mr. Bailey went outside to check the lot and saw three persons exit the warehouse 20 building on the Project Site, enter three separate vehicles and leave. See Bailey Decl., 10- 21 11. The cancelled reservation resulted in an estimated loss of $400 to $600. See id. 22 Additional trespasses like this and other issues, such as the Project Site's lack of parking, a 23 loading I delivery area and garbage I recycling area are likely to occur and will further 24 impact the Prime Steakhouse and Appellant WPDC. See Bailey Decl., 2-12; Keller Decl., 25 2-8, Ex. A; Wallace Decl., 2-14; Read Decl., Ex. D. 26 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 18 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 Although Applicant asserted in the materials submitted to the Design Review Board 2 that it had obtained an offsite parking spot, to-date this does not appear to be true. See 3 Wallace Decl., ~ 15, Ex. D. 4 v. STANDARD OF REVIEW 5 Summary judgment is appropriate when "there is no genuine issue as to any material 6 fact and the moving party is entitled to a judgment as a matter of law." See CR 56( 7 Donatelli v. D.R. Strong Consulting Eng'rs, Inc., 179 Wn.2d 84, 90, 312 P.3d 620 (2013). 8 Under Washington law, local ordinances are interpreted the same as statutes, and the 9 interpretation of "a municipal ordinance is a question of law[.]" City of Gig Harbor v. 10 North Pac~fic Design, Inc., 149 Wn. App. 159, 167, 201 P.3d 1096 (2009), review denied, 11 166 Wn.2d 1037, 217 P.3d 783 (2009)(internal citations omitted). 12 Reviewing bodies "construe zoning ordinances as a whole and reject any 13 unreasonable construction. [The] primary purpose in interpreting a zoning ordinance is to 14 ascertain the legislative intent. If the language is unambiguous, [the reviewing body will] 15 rely solely on the statutory language. When a statute or ordinance is unambiguous, 16 construction is unnecessary because the plain meaning controls." I d. 17 In the present matter, two additional fundamental rules of statutory construction are 18 pertinent: ( 1) the legislative body the City Council) "is presumed to know the statutory 19 scheme at the time it decides to amend it," and the City Council's use of different tenus 20 in the code is presumed to have different meaning for such terms. Id. at 175, 183 (holding 21 Gig Harbor's Hearing Examiner ened as a matter oflaw by ignoring code's "plain language 22 meaning" and using similar but distinct terms "interchangeably"). 23 Finally, in applying and enforcing, local administrative staff is strictly bound by the 24 authority delegated to them through the plain, express language of the municipal code. See, 25 e.g., Graham Neighborhood Ass'n v. F. G. Assocs., 162 Wn. App. 98, 117-18, 252 P.3d 898, 26 review denied, 172 Wn.2d 1024,268 P.3d 225 (2011). By statute, local governments have APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 19 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- "the authority to determine when land use applications are complete and how such 2 applications must move forward," and the administrative processing of land use applications 3 must be consistent with a local govemment's adopted codes. See id. (holding staff erred and 4 exceeded authority by "reviving" expired application "in the absence of any discemable 5 process and in the complete absence of public notice and hearing"); see also RCW 6 36.70B.050, .060, .110 & .120. Municipal staff cannot process permits through "unwritten" 7 or "unpublished infonnal policy," as such a process is "an invalid delegation of power." See 8 Biermann v. City o.f Spokane, 90 Wn. App. 816, 822, 960 P.2d 434 (1998), review denied, 9 13 7 Wn.2d 1004 (1999)(holding hearing examiner's reliance on staffs "unwritten policy" 10 was improper). 11 VI. AUTHORITY AND ARGUMENT 12 As carefully detailed above, in the City's own words the City erred repeatedly in the 13 processing and approval of the Origins Cannabis Project. The City allowed Applicant to 14 "jump the gun" and seek a building permit without first obtaining the necessary Site Plan 15 Entitlement permit and without going through the City's required public process. 16 Consequently, Appellant was denied its due process rights to comment on the applications 17 prior to the City issuing-and then retracting-the permits needed for the Project. 18 Applicant has withdrawn and stated it will not resubmit the required Site Plan 19 Entitlement permit application, so it cannot complete necessary interior and any exterior 20 improvements-including basic improvements like doors and windows. The Project Site is 21 within a state-mandated buffer for playgrounds. Nevertheless, Applicant continues 22 construction on limited interior improvements, despite clear code requirements that all work 23 cease during the pendency of this appeal. Appellant respectfully requests that the Hearing 24 Examiner grant this motion, reverse the City's Decision, and issue a stop work order until 25 the appeal process is complete and all required permits have issued. 26 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 20 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. Whether the City Erred in the Piecemeal Processing of the Origins Cannabis Project's Applications, Prematurely Issued the Decision and Deprived WPDC of Required Notice and Due Process? By code, Applicant was required to obtain a Site Plan Entitlement permit prior to obtaining a building permit for the Origins Cannabis Project. By failing to proceed per code, Applicant's building permit and change of use permit were issued in error, and Appellant's due process rights were violated. The permits should be reversed, withdrawn and only allowed to be pursued and issued 111 compliance with the procedural and substantive requirements of the City's code. Per Redmond Zoning Code (RZC) 21.76.050.C., building pennits are Type I decisions, Administrative Modification pennits are Type II decisions, and Site Plan Entitlement permits are Type II decisions; there is no "change of use" permit under RZC 21.76050. 1 See RZC 21. 76.050.C. -Table 21. 76.050B. Per RZC 21. 76. 020.A., following a pre-application conference of some nature, a land use application of some type is typically required as a prerequisite to applying for other types of permits. See Figure 21.76.020A. With specific regard to building pennits, RZC 21.76.020.H., Building Permit Review, provides in relevant part: 3. Scope. This section shall govern all building and construction codes procedures and shall control in the event there are conflicts with other administrative, procedural and enforcement sections of the Redmond Zoning Code. 4. Procedures. a. All land use permits required by the RZC must be obtained before any building or construction permit may be issued. 23 1 In fact, there is no reference to a "change of use" permit in any of the City's codes. It appears that the City uses the permit number reference "BPLN" for "Change of Occupancy" permits. The requirements for such 24 permits are identified on the City's online permit center webpage at http://www.redmond.gov/cms/One.aspx?porta1Id=l69&pageid=l36461, which contains a link to the 25 application form. According to the City's website, applicant's should "Determine if you need a land use permit. In addition to the change of occupancy, if your proposal is changing the use from a land use 26 perspective, a land use permit may be required." APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 21 PDX\131246\221725\AAL\20565580.12 SCHWABE. WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 c. All building and construction permits shall comply with the approved land use permit(s), if a land use permit is required . (Emphasis added.) Per RZC 21.76.020.E., Design Review per the process set forth in RZC 21.76.060.0. is required for "all applications requiring a building permit for exterior modifications and that have a total valuation of $50,000 or more." By code, "a Site Plan Entitlement is required for any private proposal for new construction or exterior modification to a building or site, including commercial, expansion, or exterior remodeling of structures, parking, or landscaping, where the proposed use is shown as permitted in the applicable permitted use chart." See RZC 21.76.070.Y. (Emphasis added). With regard to process, RZC 21.76.050.E., Consolidated Permit and Appeal Process, provides in relevant part: 1. Where this Code requires more than one land use permit for a given development, all pennit applications (except Type I applications) may be submitted for review collectively according to the consolidated review process established by this section. 4. Where a development regmres more than one land use permit but Applicant elects not to submit all applications for consolidated review, applications may be submitted and processed sequentially, provided that the permit subject to the highest numbered process type must be submitted and obtained first, followed by the other permits in sequence from the highest numbered type to the lowest. 6. All appeals of project permit decisions for a single project shall be consolidated and heard together in a single appeal, except for appeals of environmental Determinations of Significance (Emphasis added.) By code, Type I permits alone do not typically require public notice; Type II permits, including Administrative Modifications and Site Plan Entitlements, require public notice to all property owners within 500 feet of the project site, posting of the site and APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 22 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- a minimum comment period of 21 days. See RZC 21.76.050.F.-G.; RZC 21.76.060.D.-E.; 2 RZC 21.76.070.Y.; & RZC 21.76.080.B. 3 In the land use context, Washington courts have long-recognized that d]ue process 4 requires only that notice be reasonably calculated under the circumstances to inform a party 5 of the pendency of proceedings affecting him or his property." South Hollywood Hills 6 Citizens Ass'n v. King County, 101 Wn.2d 68, 74, 677 P.2d 114 (1984). In 1995, the 7 legislature codified land use application public notice requirements. See RCW 8 36.70B.060(2) & RCW 36.70B.110. "One of the specific statutory requirements for public 9 notice of an impending land use decision is to ensure that the decision makers receive 10 enough information from those who may be affected by the action to make an intelligent 11 decision." Prekeges v. King County, 98 Wn. App. 275, 280, 281, 990 P.2d 405 (1999). 12 Substantial compliance is required for notice requirements, and "[t]he key to achieving 13 substantial compliance with a procedural statute is the satisfaction of the substance essential 14 to the purpose of the statute." Id. 15 Here, from the outset and throughout the pennit process, the City and Applicant have 16 repeatedly acknowledged and reiterated that the existing abandoned warehouse building is 17 not suitable or habitable for anything other than storage use: it has no water, sewer, 18 insulation windows, heating I cooling, parking, garbage I recycling area, loading area, etc. 19 As early as July 5, 2016, the City told Applicant that a land use pennit subject to Design 20 Review Board review and approval "prior to issuance of a building permit" due to 21 anticipated and necessary exterior modifications to the old warehouse. Instead, Applicant 22 inexplicably abandoned the land use permit component of its Project (permit number 23 LAND-2016-01420) following the September 2016 pre-application meeting and "jumped the 24 gun" by submitting a building permit application and change of use application for "retail" 25 and "office" uses (not "marijuana retails sales" use) on December 9, 2016. 26 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 23 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 In late-January 2017, the City and Applicant attempted to conect this processing enor by reducing the scope of the building permit approval to "interior improvements only" and by excluding the approved interior expansion I mezzanine until a Site Plan Entitlement permit was approved in accordance with City codes. In late February, the City issued a "stop work order" on the mezzanine, in part because Applicant failed to provide required parking for the expanded space. In late March 2017, Applicant submitted an incomplete application to allow for the mezzanine and exterior improvements to be reviewed and approved. The City has admitted in great detail that it erred in processing and approving the building permit and change of use permit without first processing and approving the required land use pennit: Page 8, line 13 -Page 9, line 2 13 MALE VOICE: I have a question. I'm 14 just curious as to why that we didn't do, like, a 15 preapplication review of this? Why the move straight 16 to approval for tonight? 17 MR. LEE: That's a good question. We 18 did have a preapplication meeting, but not with the 19 Design Review Board earlier in the year, and at that 20 point the revisions weren't as dramatic or 21 (unintelligible). 22 They jumped the gun. They submitted a 23 building permit application and the we issued a 24 part of the building permit and then there was an 25 appeal on that building for the application. So now 1 we've kind of gotten ourself all twisted up in time 2 and processing. So we jumped into just approval. Page 40, line 22 - Page 43, line 19 22 CHAIRMAN MEADE: Gary, while they're 23 looking, can you talk to us about the hearing examiner 24 meeting? What 25 MR. LEE: Sure. 1 MALE VOICE: --would be happening and 2 so forth, where they are in that process. 3 MR. LEE: APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 24 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, PC. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 So as we mentioned earlier, we had an appeal on a building permit and the building permit appealed basically all the things that we're talking about here, parking, marijuana use, and the appeal is somewhat not ripe for appeal because the land use permit should be building first and then consolidating all the issue into one appeal hearing. So the appeal hearing will probably be extended. We do have a request for information regarding traffic. So that the take up committee will be asking for some more information regarding the traffic impact analysis; therefore, probably will have --definitely have to reschedule the hearing to get that material in and reviewed before a decision is issued. So people usually don't appeal building permits. Just have that's what they appeal here. They usually appeal land use permits, and usually there's a land use permit that has the public notice that goes out. So there was a mistake here in that the building permit was issued for the tenant improvement prior to this. There should have been this site plan entitlement application or administrative modification application submitted before the building permit was issued. So trying to get that all taken care of. CHAIRMAN MEADE: So, I'm sorry. Just to follow up on that a little bit. So was the city what is the city going to do or what is the city currently doing with the building permit application? MR. LEE: The building permit application that was appealed for was a tenant improvement for the interior only including this mezzanine. There was a plan shown for the exterior modifications, but we told them we cannot issue that permit until this application is submitted. So they gave so the building permit that was issued was only for the inside, okay, and since that building permit was issued and since they have appealed that, we have issued a notice of correction on that interior building permit that said you continue you continued to work you can APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 25 SCHWABE, WILLIAMSON & WYATT, P.C. Allorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seatlle, WA 98101-4010 [PHONE REDACTED] PDX\131246\221725\AAL\20565580. 12 ---PAGE BREAK--- 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 2 continue to work on the inside, but not on the 3 addition of the mezzanine, because the mezzanine 4 requires additional parking stall. 5 You need to provide us with the proof 6 that you have additional parking stall, by an 7 agreement, by easement, and you have to have this 8 application approved first. 9 CHAIRMAN MEADE: One more question. 10 On the tenant improvement plans, did that call for 11 plumbing and power, heating? 12 MR. LEE: So with this --yes, yes. 13 And there will be some construction plan that will 14 require mutual hookups. As far as this, there will be 15 some more construction review to provide all necessary 16 water service, because that's-- the building permit 17 application is for a change in occupancy from a 18 warehouse to a commercial space that requires 19 plumbing. Page 45, line 17-19 17 MR. KRUEGER: Well, I'm not ready to 18 vote on this. I want this to go through the normal 19 procedures. . (Bold text and underlining added.) Following this revealing exchange at the Design Review Board hearing, Applicant withdrew the Site Plan Entitlement pennit application and stated that it "would not be refiling it." Without the land use permit, the building cannot be complete and will not be suitable or habitable for any use. By statute, local governments have "the authority to determine when land use applications are complete and how such applications must move forward," and the administrative processing of land use applications must be consistent with a local government's adopted codes, not informal, unwritten policies. See Graham Neighborhood Ass'n, 162 Wn. App. at 117; Biermann, 90 Wn. App. at 822. City staff lacked the authority to disregard the plain process requirements ofRZC 21.76.020.H. and RZC 21.76.050.E. and APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 26 PDX\131246\221725\AAL\20565580. 12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 allow Applicant to submit much less receive approval of the building permit without first obtaining the Site Plan Entitlement permit and going through Design Review per RZC 21.76.020.E. and RZC 21.76.060.0. for the required exterior renovations I improvements, the mezzanine and the proposed change of use. See id. Fmiher, RZC 21.76.090.B., Post-Approval Actions, provides in relevant part: B. Commencement of Activity. Except for Master Planned Development approvals, Type I, Type II, Type III, Type IV, and Type V permits are assumed valid unless overturned by an appeal decision. Project activity commenced prior to the end of any appeal period, or withdrawal of, or final decision on, an appeal, may continue at the sole risk of Applicant; provided, however, that: 2. Where Applicant begins or continues project activity after an appeal has been filed, only project activity that will be unaffected in any way by the outcome of the appeal will be allowed. (Emphasis added.) The appeal of the building pennit and change of use pennit was filed on March 2, 2017. On March 8, 2017, the City issued a correction I stop work notice for the mezzanine portion of the building permit. Per the unequivocal language of RZC 21.76.090.B.2., all activity related to the building pennit should have ceased on March 2. As with other code requirements, the City does not have the authority to disregard, modify or otherwise ignore the plain language in the code. See Graham Neighborhood Ass'n, 162 Wn. App. at 117; Biermann, 90 Wn. App. at 822. Applicant's representatives and contractors have been observed continuing to work since March 2; they continue to trespass on Appellant's property, have caused business losses to Appellant's tenant Prime Steakhouse and have told Prime Steakhouse's owner that the Origins Cannabis customers will park in the restaurant's lot regardless of whether they have the right to do so. In sum, the City failed to comply (substantially or otherwise) with the processing and notice requirements of RZC 21.76.020.E., RZC 21.76.020.H., RZC 21.76.050.E., RZC APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 27 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 21.76.050.F.-G., RZC 21.76.060.D.-E., RZC 21.76.060.0., RZC 21.76.070.Y., and RZC 2 21.76.080.B. See South Hollywood Hills, 101 Wn.2d at 74; Prekeges, 98 Wn. App. at 280; 3 see also RCW 36. 70B.060(2) & .11 0. By erroneously processing and approving the building 4 permit and change of use permit prior to and without the land use permit and Design 5 Review, the City denied Appellant (along with many other nearby property owners) its due 6 process rights to comment on the Origins Cannabis Project prior to issuance of the Decision. 7 Accord id. Many of the issues of appeal could have been avoided, had the permit process 8 been followed. By allowing Applicant to continue to work, despite the code's plain language 9 and Appellant's good faith effort to avoid Applicant incurring unnecessary expenses, the 10 City is only exacerbating the situation. 11 Appellant now respectfully requests that the Hearing Examiner grant this motion, 12 reverse the Decision, issue a "stop work order" for all approved work on the Project Site2 13 and require Applicant to obtain the necessary Site Plan Entitlement pennit prior to the City 14 issuing the building pennit and change of use pennit subject to this appeal. 15 16 B. Whether the City Erred by Failing to Require Code-Compliant Onsite Parking for the Change of Use from Warehouse/Storage to Marijuana Retail Sales or Other Commercial Use? 17 It is beyond dispute that the building on the Origins Cannabis Project Site IS 18 proposed to be converted from an abandoned warehouse warehouse I storage use) to 19 marijuana retail sales use (and possibly general retail sales use). Thus, it is beyond dispute 20 that there is a "change ofland use" proposed. The City's "marijuana retail sales" use did not 21 even exist until June 2014 when the City adopted Ordinance No. 2744 and amended RZC 22 Chapter 21.41 to include such uses in the City's zoning code. The City's land use regulations 23 24 2 In the Hearing Examiner's April 21, 2017 Response to Request for Hearing Examiner Action, the Hearing Examiner requested that Appellant submit a proper motion on the issue of Applicant's continued work on the 25 Project Site and further ordered that Appellant may submit a limited motion addressing solely that issue. For efficiency, and because the issues are intertwined with other issues on appeal, Appellant brings this request as 26 part of this motion. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 28 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 differentiate "marijuana retail sales" from other uses, including "general sales or services" and "warehousing." The City's code unequivocally requires nonconforming sites I buildings I parking to be brought up to code for a "change in land use." The old warehouse has no onsite parking. Between two and five parking spaces per 1,000 square feet of "marijuana retail sales" use are required in the Redmond OT Zone plus bicycle parking, so the City erred in issuing the building permit and change of occupancy for marijuana retail sales use and any other non-warehouse use. The Decision should be reversed. The Project Site is located within Redmond's Downtown Old Town (OT) zone, which requires at least two parking spaces per 1,000 square feet for "general sales or services" and "marijuana retail sales" land uses. See RZC 21.10.030.D.- Table 21.10.030C. "Warehousing" is not a permitted use in the OT zone. See id. "General sales or services" and "marijuana retail sales" land uses are treated as different, distinct uses in the OT zoning table. See id. Similarly, RZC 21. 78, Definitions, provides the following relevant land use definitions: General Sales or Services. An establishment engaging in the retail sale, rental, or lease of goods or the provision of services, including but not limited to automobile sales or service; heavy consumer goods sale or service; durable consumer goods or service; the sale or service of other consumer goods, grocery, food and beverage sales; health and personal care services; finance and insurance services; real estate services; professional services; administrative services; and restaurant and food services. General sales or services does not include hotels, motels, and other accommodation services; mail order or direct sales establishments; membership wholesale/retail warehouses; and packing, crating, and convention and trade show services; and marijuana retail sales. Marijuana Retail Sales. The sale of usable marijuana, marijuana-infused products, and marijuana concentrates by a marijuana retailer in a retail outlet. Warehousing. The use of a building primarily for the long-term storage of goods and materials. (Emphasis added.) By code and definition, "marijuana retail sales" use is not "general sales or services" use, much less "warehousing" use. See id. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 29 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 The City's general parking requirements are found in RZC 21.40.010.C., Vehicle Parking, which provides in relevant part: C. Administration. In the administration of this section, the following rules shall be used: 1. Nonconfonning Parking. a. A development that met the parking requirements in effect at the time it was approved but that does not have sufficient parking spaces to meet the cunent requirements of this chapter, may continue to operate with the parking deficiency as long as no enlargement or land use change is made that would require additional parking spaces; b. When a development with nonconforming parking is enlarged so as to require additional parking spaces, the requirements of this chapter shall apply only to the enlargement;3 c. When a preexisting building with nonconfonning parking is remodeled or rehabilitated but not enlarged, the existing use of the building may continue without providing additional parking. In the event that the land use is changed or increased by an addition of building square footage, the minimum level of parking required, including bicycle parking required by this chapter, consistent with the new or increased land use affected by the change must be provided, or an approved Transportation Management Program, as provided in RMZ, Transportation Management Program, must be implemented for the site that effectively reduces parking demand; d. When additional uses are placed on the same lot with the nonconfonning parking or an enlarged lot of which the lot with nonconforming parking is a part, the requirements of this chapter shall apply only to the additional use; and e. When a use in a development with nonconforming parking is terminated, the area vacated shall not be occupied by a use requiring more parking spaces than the terminated use, unless the required additional parking spaces are provided. (Emphasis added.) Professional transportation engineer Michael Read of TENW prepared a comparative parking demand analysis for "warehousing," "general sales or services" (specialty retail), 3 The City has already conceded that it erred in approving the interior mezzanine without requiring parking for the new use I area and issued a "stop work order." Appellant concurs that the City erred and addresses that error below. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 30 PDX\131246\221725\AAL\20565580.12 SCHWABE. WILLIAMSON & WYATT. P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 and "marijuana retail sales" and concluded that "marijuana retail sales" has a profoundly greater parking demand than the prior (but long-since abandoned) "warehousing" use for the existing building on the Project Site. Mr. Read estimates that the "warehousing" use would require two parking stalls, "specially retail" would require eight parking stalls and "marijuana retail sales" use would require 21 parking stalls-similar to a fast-food restaurant with drive-through. Mr. Read further points out that, by City code, conversion of the old warehouse to "general sales and services" use would require an increase from two parking stalls to six parking stalls and to seven parking stalls for "marijuana retail sales." In July 2016, inexplicably and without reference to any code section, parking analysis or other basis, the City infonned the Applicant that parking would be "grandfathered" for the Applicant's "general retail/office use." It is important to note that, at the time the Applicant received such direction, the Applicant had yet to disclose to the City both the mezzanine (which the City later and correctly determined needed parking) or the actual proposed use of the site (or "marijuana retail sales," which was not disclosed until the September 2016 pre-application meeting (or the long-since abandoned (but required) land use permit (or the Project. During the Design Review Board meeting, Mr. Lee acknowledged the oversight and stated: "There may be a requirement for additional parking for the marijuana retail sales use." To-date, the Applicant has not submitted a change of occupancy application to allow for "marijuana retail sales" use; only its now- withdrawn Design Review Board submittal references such use. Regardless, the City's nonconfonning parking code consistently uses the disjunctive "or" to distinguish use changes from enlargements4 and unambiguously requires that parking 4 "When a statutory term is undefined, the words of a statute are given their ordinary meaning, and the court may look to a dictionary for such meaning. The dictionary describes 'or' as a 'function word' indicating 'an altemative between different or unlike things.' WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1585 (2002). In this sense, 'or' is used to indicate an inclusive disjunctive- one or more of the unlike things can be true But the dictionary notes 'or' can also mean a 'choice between altemative things, states, or courses,' and gives the usage: 'will you have tea [or] coffee.' This is the exclusive disjunctive- one or the other can be true, but not both." Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 243 P .3d 1283 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 31 PDX\ 131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT. P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101·4010 [PHONE REDACTED] ---PAGE BREAK--- 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 be made code compliant for any enlargement or "land use change," "additional [land] use," or "new [land] use." See RZC 21.40.010.C.l.a.,c. & d. However characterized, the Origins Cannabis Project will place new, additional and changed uses in the abandoned warehouse and must therefore provide code-compliant parking for the new use(s). See id. Moreover, whereas here the previous nonconforming use of the site ("warehouse") has been terminated, "the area vacated shall not be occupied by a use requiring more parking spaces than the tenninated use, unless the required additional parking spaces are provided." See RZC 21.40.010.C.l.e. Mr. Lee acknowledged to the Design Review Board, and Mr. Read confinns, that "There [not only] may be a requirement for additional parking for the marijuana retail sales use," there is a need for at least eight and perhaps as many as 27 additional parking spaces just for the marijuana store. Inasmuch as the office mezzanine and other generic retail spaces will have new uses filling an abandoned warehouse, those additional spaces I uses must provide more parking, too. See id. This same result is also required by RZC 21.76.100.F.7., which provides in pmi: 7. Abandonment of Rights to Nonconfonnities. a. All rights to a legal nonconfom1ing use are lost: i. If the use is changed, or ii. If the use is abandoned for 12 months, or b. All rights to nonconfonning parking shall be lost if the primary structure on the lot is demolished or rebuilt as defined in RZC Article VI, Definitions. Rights shall not be lost if a building is merely vacated for less than one year. The Project Site and old warehouse building have never been used for retail, office or uses other than warehouse I storage, so no nonconforming parking rights or retail, office or other uses exist. The warehouse building has been vacant and abandoned for more than a year, so all nonconforming rights for the warehouse I storage use have been lost, including any rights (2010)(intemal citations omitted). APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 32 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Allorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seallle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 to nonconforming parking for a warehouse I storage. 2 Finally, RZC 21.76.100.F.9.a.&b. prohibit the alteration or expansion of a 3 nonconforming structure and require that legal nonconforming structure shall be brought 4 into full compliance with the RZC when alteration or expansion of the structure takes place, 5 and the following takes place within any three-year period: The costs stated on all 6 approved building permit applications for the structure equal or exceed the value of the 7 existing structure at the beginning of that three-year period." On this point, Mr. Lee stated to 8 the Design Review Board that the Applicant's "cost estimate was very early on and was, 9 I'm sure, very, you know, bare bones. So it's gotten a lot bigger now. So that is a big 10 question now whether or not they will be equaling or exceeding that value." Even were one 11 to assume that Applicant's Appraisal Repmi correctly estimated the building's existing value 12 at $250,000, the actual value of the proposed and required improvements (interior and 13 exterior) will exceed $500,000. Applicant's effort to avoid the three-year rule by 14 piecemealing the pennit process should not be allowed. 15 In sum, the code's plain, unambiguous language requires nonconforming sites to 16 provide confmming parking (including bicycle parking) any time there is a change of use, 17 especially where the prior nonconforming use has been abandoned or the cost of 18 improvements will exceed the building's value. The City erred by informally telling the 19 Applicant that parking was "grandfathered," but Applicant invited and compounded this 20 enor by failing to disclose its primary proposed use-marijuana retail sales, not "general 21 retail/office use"-and by failing to follow the required penn it process (as detailed above). 22 Appellant thus respectfully requests that the Hearing Examiner grant this motion, reverse the 23 Decision, issue a "stop work order" for all approved work on the Project Site and require 24 Applicant to obtain the necessary Site Plan Entitlement permit-including required 25 parking-prior to the City (re-)issuing the building permit and change of use permit subject 26 to this appeal. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 33 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 c. Whether the City Erred by Failing to Require Code-Compliant Onsite Parking for the Increased Floor Area from Warehouse/Storage to Marijuana Retail Sales or Other Commercial Use? Recognizing that this brief is Appellant hereby incorporates by reference the code references in the prior section and notes that it is undisputed that the Applicant's proposed mezzanine creates an "enlargement . . . that would require additional parking spaces," adds "building square footage" and fails to provide any much less code-compliant parking (including bicycle parking) on the Project Site. See RZC 21.40.010.C.l.a-c.; RZC 21.76.100.F.7.; RZC 21.76.100.F.9.a.&b. Again, Appellant respectfully requests that the Hearing Examiner grant this motion, reverse the Decision, issue a "stop work order" for all approved work on the Project Site and require Applicant to obtain the necessary Site Plan Entitlement permit-including required parking-prior to the City (re-)issuing the building permit and change of use permit subject to this appeal. D. Whether the City Erred by Failing to Require Code-Compliant Onsite Garbage/Recycling, Off-street Parking For Service Vehicles and the Building is Not Code Compliant? RZC 21.41.050 requires that ]ll marijuana processors, marijuana producers, and marijuana retailers must operate in a permanent structure designed to comply with the City Building Code." In addition to lacking required vehicular and bicycle parking, there is no code-required "parking facilities for service vehicles" per RZC 21.40.01 O.E.8., no onsite garbage I recycling enclosure per RZC 21.38.020 and multiple ADA, energy code, plumbing and ingress I egress issues, as detailed by architect Rick Driftmier. Again, Appellant respectfully requests that the Hearing Examiner grant this motion, reverse the Decision, issue a "stop work order" for all approved work on the Project Site and require Applicant to obtain the necessary Site Plan Entitlement pennit-including required parking-prior to the City (re-)issuing the building pennit and change of use permit subject to this appeal. APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 34 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Allorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seallle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 E. Whether the City Erred by Allowing a Marijuana Retail Use to be Located Within 1,000 Feet of the Downtown Park Playground? While it is not clear that Applicant ever submitted an actual permit for a "marijuana retail sales use" (or that it did not withdraw such permit when it terminated its Site Plan Entitlement application), it is clear that a such a use cannot be lawfully permitted on the Project Site. As noted above, RZC 21.41.050 requires that"[ a]ll marijuana retailers must operate in a permanent structure designed to comply with the City Building Code." RZC 21.41.030 fmiher provides that "No marijuana retailer shall locate in the city without a valid license issued by the Washington State Liquor and Cannabis Control Board, and must at all times conform with state law and city regulations. In the event any city regulation conflicts with state law or state regulations, the more restrictive provision shall prevail." (Emphasis added.) In addition to the City Building Code and other requirements, RZC 21.41.040.C., states in relevant part that "No marijuana retailer shall locate within 1,000 feet, measured in the manner set forth in WAC 314-55-050(1 from any [elementary school, secondary school or playground] in existence at the date of application to the City and as defined in WAC 314-55-010 as of the date of adoption of this chapter." (Emphasis added.) The City's code, however, contains limiting language (in bold) not found in WAC 314-55-050(1 0)&(11 which state in relevant part: (1 0) The shall not issue a new marijuana license if the proposed licensed business is within one thousand feet of the perimeter of the grounds of any of the following entities. The distance shall be measured as the shortest straight line distance from the prope1iy line of the proposed building/business location to the property line of the entities listed below: Elementary or secondary school; Playground; 25 (11) A city or county may by local ordinance permit the licensing of marijuana businesses within one thousand feet but not less than one hundred 26 feet of the facilities listed in subsection ( 1 0) of this section except elementary APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 35 PDX\131246\221725\AAL\20565580. 12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- and secondary schools, and playgrounds. 2 WAC 314-55-010(24) defines "Playground" as "a public outdoor recreation area for 3 children, usually equipped with swings, slides, and other playground equipment, owned 4 and/or managed by a city, county, state, or federal government." State law does not contain 5 the limiting language highlighted above in RZC 21.41.040.C., and the City's land use code 6 does not define "in existence" for purposes of the code. To the extent the "in existence" 7 language above is less restrictive than the language in theW AC, theW AC standards govern. 8 See RZC 21.41.030. 9 For over a decade, our courts have recognized that vested permit rights should not be 10 ignored in the land use process and should be treated as "existing development," noting 11 '"Existing' includes vested projects." See Gold Star Resorts, Inv. V Futurewise, 140 Wn. 12 App. 378, 394, n.41, 110 P.3d 1132 (2007)(citing Quadrant Corp. v. Growth Management 13 Hearings Board, et al., 154 Wn.2d 224, 240-41, 110 P.3d 1132 (2005)), affirmed in part, 14 reversed in part on other grounds, 164 Wn.2d 1034, 197 P.3d 1185 (2008); see also In re 15 Expansion of Spokane County Urban Growth Area, 181 Wn. App. 369, 379-80, 325 P.3d 16 434, review denied, 181 Wn.2d 1010 (2014). 17 Here, in April 2015 the City Council unanimously adopted the Downtown Park 18 Master Plan for a new park located less than 1,000 feet from the Origins Cannabis Project 19 Site. The Downtown Park will feature a splash playground for children described as a 20 "Water play area," "splash pad" and "Fountains of water jets-Fun for the kids!", which 21 clearly meets the definition of a "playground" under WAC 314-55-010(24). The state 22 awarded the City a $3,000,000 grant for the construction of the Downtown Park. 23 On August 1, 2016, the City issued the approved Site Plan Entitlement permit for the 24 Downtown Park; the application was submitted on June 13, 2016. The Site Plan Entitlement 25 states on the fourth page that "This decision is not vested to the development regulations in 26 effect until a complete building permit application is submitted." On September 19, 2016 APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 36 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- and October 24, 2016, the City's Parks Department submitted applications for the two 2 building permits needed to construct two structures (a restroom and a pavilion) within the 3 Downtown Park. The Downtown Park project vested on September 19, 2016; construction 4 commenced in the fall of2016 and is ongoing, with a projected opening date in 2018. 5 Applicant did not submit a building pennit application or change of occupancy 6 application until December 9, 20 16; those applications did not disclose "marijuana retail 7 sales" use, and Applicant withdrew its March 21, 2017 Site Plan Entitlement, which 8 disclosed such use. Under Washington law, the Downtown Park playground was "in 9 existence at the time of the [Origins Cannabis building pennit and change of occupancy] 10 application to the City," per RZC 21.41.040.C and WAC 314-55-050(10)&(11), which has 11 no such requirement. Accord Gold Star Resorts, 140 Wn. App. at 394, n.41. Because the 12 marijuana retail sales use cannot be located on the Project Site, Appellant respectfully 13 requests that the Hearing Examiner grant this motion, reverse the Decision (to the extent 14 such use was even disclosed or approved), issue a "stop work order" for all approved work 15 on the Project Site and require Applicant to obtain the necessary Site Plan Entitlement 16 permit prior to the City (re-)issuing the building permit and change of use permit subject to 17 this appeal. 18 19 20 F. Whether the City Erred by Failing to Issue a "Stop Work Order" for All Approved Work Subject to this Appeal and Upon Notice that the Decision was Issued in Error, Obtained by Misrepresentation of Material Fact and Exercised Contrary to Code? 21 Appellant has already detailed in Section VI.A. the many procedural deficiencies that 22 mandate that the Decision be reversed and withdrawn and, for brevity, incorporates them by 23 reference here. Appellant has additionally demonstrated substantive deficiencies with the 24 approved building permit and that, if approved, a marijuana retail sales use is prohibited on 25 the site under state law. See Sections VI.B.-E. above. Appellant has notified the City of 26 these procedural and substantive deficiencies, but the City continues to allow Applicant to APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 37 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 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 move forward with of interior improvements, per the Decision. This is error. RZC 21.76.090, Revocation ofPermits, provides in part that 1. The Administrator may determine that any approved permit should be revoked upon a finding that one or more of the following conditions exist: a. The pennit was issued in error and the revocation is made within the 21- day appeal period under the Land Use Petition Act, RCW 36.70C; or b. Approval of the permit was obtained by misrepresentation of material fact; or c. The pennit is being exercised contrary to the terms of approval. It is clear that the building permit and change of use permit were issued in error-the City has repeatedly and in great detail admitted and explained as much to the Design Review Board and Applicant. See RZC 21. 76.090.1.a. It is also clear that the building permit and change of use permit (which did not authorize marijuana retail sales use) were issued based on misrepresentations of material fact regarding the value of the proposed improvements, which far exceed the value of the existing, abandoned warehouse on the Project Site. See RZC 21. 76.090.1.b. Given that an appeal has been pending, the "pe1111it is being exercised contrary to the terms of approval," which require compliance with City codes. See RZC 21. 76.090.l.c. Appellant and its tenant Prime Steakhouse restaurant continue to suffer trespasses and other issues as a direct result of the City's failure to stop all work on the Project Site. By code, the City should have issued a "stop work order" pending this appeal. See RZC 21.76.090.B.2. It did not. Appellant has shown good cause, and the City's code is clear that all work must cease. In light of the record and law, the City should have withdrawn the permit under RZC 21.76.090.E., too. Appellant has made this request to the City and informally to the Hearing Examiner. Per the Hearing Examiner's April 21, 2017 Order, Appellant reiterates its request and hereby moves the Hearing Examiner (again) to issue a "stop work order" for all remaining previously permitted work, pending the outcome of this APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 38 PDX\131246\221725\AAL\20565580.12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys al Law US Bank Cenlre 1420 51h Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] ---PAGE BREAK--- 1 appeal and completion of the required pennit process. 2 VII. CONCLUSION 3 There is a well-established legal principle that one cannot accomplish indirectly what 4 one cannot accomplish directly. See, e.g., Smith v. Orthopedics Intern., Ltd., P.S., 170 Wn.2d 5 659, 244 P.3d 939 (2010). This rule is particularly apt here. The City and Applicant have 6 proceeded with an unlawful, piecemeal permit process that seems designed to evade public 7 notice or pmiicipation in order to allow a marijuana retail sales use in an unsuitable location. 8 Having withdrawn its required Site Plan Entitlement permit application, Applicant Origins 9 Cannabis has ensured that no use- retail, office or otherwise- can actually be approved on 10 the Project Site. It's not even clear that this appeal is ripe or can proceed without the Site 11 Plan Entitlement decision, given that the prerequisite land use permit has not issued and has 12 " been withdrawn. See RZC 21.76.095.E.6.; see also RCW 36.70B.060(3), RCW 36.70B.110 13 and RCW 36.70B.120(2). Mr. Lee remarked as much during the Design Review Board 14 hearing. Whatever the case, Appellant respectfully requests that the Hearing Examiner grant 15 this motion reverse the Decision, issue a "stop work order" for all approved work on the 16 Project Site and require Applicant to obtain the necessary Site Plan Entitlement permit prior 17 to the City (re-)issuing the building permit and change of use pennit subject to this appeal. 18 19 20 21 22 23 24 25 26 Dated this 1st day of May, 2017. SCHWABE, WILLIAMSON & WYATT, P.C. By: ~ Aaron M."Lamg, WSBA alaing@schwabe. com Attorneys for Appellant WPDC Cleveland, LLC APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT- 39 SCHWABE. WILLIAMSON & WYATT. P.C. Attorneys at Law US Bank Centre 1420 5th Ave., Suite 3400 Seattle, WA 98101-4010 [PHONE REDACTED] PDX\ 131246\221 725\AAL\20565580.12 ---PAGE BREAK--- 1 2 3 4 5 6 7 8 CERTIFICATE OF SERVICE I, the undersigned, hereby declare under penalty of perjury, under the laws of the State ofWashington, that the following is true and correct: That on May 1, 2017, I caused to be served by e-mail transmission Appellant WP DC Cleveland, LLC 's Motion for Partial Summary Judgment; the Declaration of Aaron M Laing and exhibits thereto; the Declaration of Kevin R. Wallace and exhibits thereto; the Declaration of Michael J Read, P.E. and exhibits thereto; the Declaration of Matthew M 9 11 Woolsey and exhibits thereto; the Declaration of Jason Bailey; the Declaration of Lee Keller 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 and exhibit thereto; and the Declaration of Rick Driftmier, AlA and exhibit thereto and this Certificate of Service to the following counsel: Attorney Vicki Orrico, [EMAIL REDACTED] Attorney James Haney, [EMAIL REDACTED] Attorney Daniel Kenny, [EMAIL REDACTED] And to the Office of the Hearing Examiner in care of: Cheryl D. Xanthos, [EMAIL REDACTED] Dated this 1st day of May, 2017. CERTIFICATE OF SERVICE- 1 PDX\131246\221725\AAL\20565580.1 2 SCHWABE, WILLIAMSON & W YATT, P.C. Allorneys al Law US Bank Centre 1420 5th Ave Suite 3400 Seattle. WA 98101-4010 [PHONE REDACTED]