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APPELLANTS’ BRIEF ON THE MERITS - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The Honorable Sharon A. Rice BEFORE THE HEARING EXAMINER FOR THE CITY OF REDMOND In the Matter of the Appeal of Tom and Andrea Short and Hamid Korasani of a May 18, 2017 Decision by the Technical Committee to Deny a Deviation Request for a project at 13404 NE 100th Street, Redmond No. DEVREQ-2017-00464/BLDG-2015-02128 APPELLANTS’ BRIEF ON THE MERITS The Appellants, Tom & Andrea Short, and Hamid Korasani, submit the following legal brief in support of the merits of their appeal per the Order Setting Pre-Hearing Document Exchange Schedule, dated June 13, 2017: ANALYSIS 1. The Project is Exempt from the Requirement to Underground Utilities Appellants’ project should not require a deviation or modification, as it is exempt from the requirement to underground utilities under RZC 21.17.020. The City’s attempt to impose such a requirement here contravenes applicable City Code. Specifically, the subject property is located within the Residential Innovative Zone (“RIN Zone”). The express purpose of the RIN Zone is to “promot[e] diversity in the size, type, and price of new single-family homes.” RZC 21.08.070 (emphasis added). Critically, for purposes ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 of the RIN Zone, duplexes are expressly considered single-family homes. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). Cf. RZC 21.08.070B (allowing duplexes as a permitted use in the RIN Zone). Categorizing duplexes as single-family homes in the RIN Zone is presumably for the purpose of ensuring the desired and aforementioned diversity of the type and price of housing stock available in the RIN Zone. Moreover, the legislative history of ordinance requiring, in certain circumstances, the undergrounding of utilities, confirms that its exemptions were designed to be consistent with the purposes of the underlying zoning districts: “WHEREAS the City of Redmond desires to amend the Zoning Code as it pertains to…[the] undergrounding of utilities in order to relieve minor residential development from high cost burdens without compromising existing…Zoning Code objectives. Ord. No. 2662, Findings (emphasis added). In short, the objectives of the RIN Zone, which is to provide affordable, smaller housing units, was preserved by the exemptions to chapter 21.17 RZC. The City is hard-pressed to explain how the undergrounding of utilities at the subject property, at a cost in excess of $100,000, preserves the affordable housing purpose of the RIN zone, when the cost of construction for the proposed duplex is approximately $500,000. As indicated, the undergrounding of utilities is governed by RZC 21.17.020. The City has a past pattern or practice of interpretation and application of RZC 21.17.020 that has excluded the construction of single-family residences or minor residential development from its requirements. Indeed, the City’s prior denial1 of the Appellants’ deviation request, dated March 3, 2017, reflects the City’s longstanding interpretation of RZC 21.17.020: “Per Redmond Zoning 1 In a letter, dated April 15, 2017, the City “rescinded” its prior denial of the deviation request. ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Code 21.17.020, undergrounding overhead utilities is required except for single-family house or minor residential development.” However, as indicated above, for purposes of the zone in which the Subject Property is situated, duplexes are expressly defined as single-family residences. See RZC 21.08.360(A)(2) (defining “single-family housing” in the RIN Zone to include “smaller dwelling units such as a cottage, size-limited dwelling or duplex.”)(emphasis added). As such, the Appellants’ project should be exempt from any requirement to underground overhead utilities. 2. If the Project is Not Exempt from the Requirement to Underground Utilities, it is Eligible for a Deviation Under the Deviation Criteria that the City Directed the Applicants to Comply With Alternatively, if the Examiner concludes that the project is not exempt from the requirement to underground overhead utilities in RZC 21.17.020, the Appellants are eligible for a deviation under the very criteria that the City invited Appellants to comply with, specifically the following”2 • The deviation produces a comparable or improved result, which is in the public interest. • The deviation meets requirements for safety, public health, function, fire protection, transit needs, appearance, maintainability, and any other criteria deemed relevant by the City. • The deviation provides substantially equivalent (or improved) environmental protection as would be provided if the standard requirements were met. • The deviation needs to reflect sound engineering practices. • The deviation needs to avoid damage to other properties in the vicinity of and of the proposal. • Any deviation from the standards that does not meet the Fire Code will require concurrence by the City Fire Marshal. 2 See City of Redmond, Procedures for Requesting and Approving Engineering Deviation Requests, located at http://www.redmond.gov/common/pages/UserFile.aspx?fileId=206032 (revised December 14, 2016). ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 • As applicable for Overlake and Downtown RZC 21.76.070C Administrative Design Flexibility. The City has opposed the Appellants’ project ever since the Appellants applied to construct a duplex. Apparently, after having realized that the Appellants were well-positioned to meet the above criteria, the City unilaterally revoked its prior deviation denial, proffered false pretenses for its revocation the City “wanted an opportunity to review the request more in- depth”), and then, without explanation or notice to the Appellants, decided to review the project under different criteria altogether. The City’s pattern of conduct was neither fair nor ethical. Nor should the conduct be tolerated by the Hearing Examiner. For purposes of this legal brief, and to avoid duplication, it is sufficient to state that the Appellants intend to demonstrate how their proposed project meets the above criteria utilizing the same analysis provided in the revised deviation application. 3. Alternatively, if the Project is Not Exempt from the Requirement to Underground Utilities, It is Eligible for a Modification Under RZC 21.17.030. Alternatively, if the Examiner concludes that the project is not exempt from the requirement to underground overhead utilities in RZC 21.17.020, the Appellants are eligible for a modification under RZC 21.17.030, which states in relevant part as follows: 2. The applicant shall explain what condition justifies the modification or rescission… 3. The decision maker shall adopt written findings and conclusions documenting its decision to approve or deny the request. The findings and conclusions shall document whether the development contributes to the need for the required improvement or dedication and (ii) the required improvement or dedication is roughly proportional to the impact from the development. The decision maker shall consider whether credits, latecomer’s fees, or other measures can be used to modify the required improvement, dedication, or transfer so that it is roughly proportional to the impact from the development. ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 RZC 21.17.030. The above provisions appear to be a straightforward codification of what are commonly known as the “nexus” and “rough proportionality” tests imposed by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), respectively. In Washington, the tests from Nollan and Dolan have been codified in 82.02.020. The best explanation of these doctrines in Washington State is contained in Burton v. Clark County, 91 Wn. App. 505 (1998), which states as follows: In our view, Nollan, Dolan, and their Washington progeny stand for at least four propositions. First, when the government conditions a land-use permit, it must identify a public problem or problems that the condition is designed to address…. Second, the government must show that the development for which a permit is sought will create or exacerbate the identified public problem. This is the same as to say that there must be a relationship (nexus) between the development and the identified public problem; that the necessary relationship will exist if the development will create or exacerbate the identified problem; but that the necessary relationship will not exist if the development will not adversely impact the identified public problem. Thus, the Nollan Court rejected an easement that would have improved public access to the beach, even though the Commission’s staff report said improved public access was needed, because the Nollans’ project, replacing a bungalow with a new house, would not make the identified public problem, lack of public access, any worse than before. Similarly, the Dolan court rejected Tigard's exaction of a floodplain easement that would have enhanced the public's recreational opportunities, even though such opportunities were needed, because Dolan's project, a larger retail outlet, would not make the identified public problem, the public’s lack of recreational opportunities, any worse than before… Third, the government must show that its proposed condition or exaction (which in plain terms is just the government’s proposed solution to the identified public problem) tends to solve, or at least to alleviate, the identified public problem. In other words, the government must show a relationship (nexus) between the proposed solution and the identified problem, and such relationship cannot exist unless the proposed solution has a tendency to solve or alleviate the identified problem. Thus, ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the Nollan Court rejected the exaction of an easement along the beach, even though the Nollans’ new house would exacerbate the inability of passersby to see the ocean from the road, because allowing people to walk on the beach had no tendency to restore the view from the road… Fourth, the government must show that its proposed solution to the identified public problem is “roughly proportional” to that part of the problem that is created or exacerbated by the landowner’s development. Thus, as already seen, the Dolan Court posed the question, “[W]hat is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development.” It answered by saying that the required connection was a “reasonable relationship” best described by the term “rough proportionality,” and that the government “must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” The Washington Supreme Court ruled similarly in Sparks v. Douglas County, where it noted that a regulatory exaction must be “reasonably calculated to prevent, or compensate for, adverse public impacts of the proposed development.” The purpose, once again, is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” while at the same time leaving government free to require a developer to rectify public problems insofar as the developer has created such problems. Id. at 520-24 (emphasis added). With respect to the above analysis, the City’s decision does not explain what the public problem is that it seeks to remedy by requiring the undergrounding of utilities. Overhead utilities cannot be a public problem, as the City Code expressly exempts single-family residences from undergrounding, and the vast majority of the residences in the RIN Zone, a single-family zone, are indeed single-family residences. Likewise, to the extent that the City relies on an alleged public problems identified in RZC 21.17.020(A), specifically public safety, aesthetics, hazards of proliferating utility poles, etc., the Appellants can demonstrate that those issues are exacerbated by the requirement to underground utilities at the subject property. Here, because of unique circumstances of the subject property, the undergrounding of existing utilities would require the addition of utility poles. Rather than removing safety hazards, the addition of ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 such poles would actually decrease public safety and create new hazards. Moreover, the addition of three new utility poles would not improve the appearance and aesthetics of the public ways, but would only serve to exacerbate any real or perceived public concern regarding aesthetics. As such, there is no evidence that the Appellants’ project will create or exacerbate an identified public problem. Rather, it is the requirement to underground the utilities that will exacerbate any perceived or actual public problem. Moreover, the existing residence on the subject property is already served by existing utilities and the replacement of that residence will not require additional overhead utilities. As such, the project does not create or exacerbate an identified public problem. Finally, the City cannot demonstrate that its requirement to underground utilities is “roughly proportional” to the alleged problem that is created or exacerbated by the Appellants’ proposed project. As indicated above, the cost of the undergrounding is grossly disproportionate to any perceived or real impact, if any, of the Appellants’ proposal. Additionally, requiring the Applicants to pay to remove a utility pole that the City just recently allowed an adjoining property owner to install on the frontage of the Property is per se disproportionate to any impacts of the Applicants’ project. Instead, the City appears to be requiring the Appellants to mitigate the impacts of a third-party’s development. The City’s position in this case appears to be akin to the situation described in United Development v. Mill Creek, 106 Wn. App. 681 (2001). There, the City of Mill Creek required a developer to make frontage improvements for drainage along a street in order to bring it “up to code.” However, it was undisputed that the proposed project would have no effect upon drainage at the adjacent street. The court stated as follows: ---PAGE BREAK--- APPELLANTS’ BRIEF ON THE MERITS - 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The City defends the improvements condition by arguing that the need to bring the adjacent street “up to code” justifies the requirement. This is apparently an extension of the argument that current codes control mitigation assessments. But that is true only where the development itself has an impact to be mitigated. The City has demonstrated no impact at all. Instead, the City argues that the drainage improvements are a good idea, and therefore can be required as a condition of UDC’s subdivision even though the need for the improvements is not directly related to development of the subdivision. This is not the law, either under the Mill Creek code or the statute [RCW 82.02.020]. The superior court correctly reversed this requirement. United Development v. Mill Creek, 106 Wn. App. 681 (2001) (emphasis added). Here, similar to United Development, the City’s demand to underground utilities appears to be based upon a belief that undergrounding of utilities is a “good idea” or necessary to bring the street frontage “up to code.” However, the Appellants’ project does not have an impact to be mitigated with respect to overhead utilities. The City’s requirement cannot be sustained under RZC 21.17.030, which is a codification of the nexus and rough proportionality tests of Nollan, Dolan and RCW 82.02.020. CONCLUSION For the reasons set forth above, the Hearing Examiner should determine that the Appellants’ project is exempt from a requirement to underground utilities. Alternatively, the Hearing Examiner should grant a deviation or modification to allow existing overhead utilities to remain. DATED this 12th day of July, 2017. LAW OFFICE OF SAMUEL A. RODABOUGH PLLC Samuel A. Rodabough Counsel for Appellants