Document Redmond_doc_4af540dfdd

Appellant's Exhibit 16 (as referenced in June 30, 2017 Appellant WPDC Cleveland LLC's Witness and Exhibit List) ---PAGE BREAK--- Amended Appeal of Origins Cannabis Type I Permit: BLDG-2016-09802; BPLN-2016-02092; BPLN-2017-0445 Summary of Opinions Richard L. Settle Professor of Law Emeritus Seattle University School of Law Of Counsel Foster Pepper pllg 1111 Third Avenue Suite 3000 Seattle, WA 98101 ri chard, [EMAIL REDACTED] (206) 447-8980 June 30, 2017 5I6.I9S59 1 Appellant WPDC Cleveland's Exhibit 16 - Page 1 of 24 ---PAGE BREAK--- Professor Richard L. Settle, whose resume is attached, has taught law school courses in land use law for over 45 years, including courses on nonconforming use law. Professor Settle has written often-cited land use treatise, Washington Land Use and Environmental Law and Practice (1983) and numerous articles and papers on Washington land use law. He has reviewed all pleadings submitted in this matter; relevant evidence and factual assumptions for this matter; City of Redmond regulatory requirements applicable to nonconforming land uses; development, and structures (“nonconfonning uses”); and Washington case law regarding local regulation of nonconforming uses. Professor Settle is prepared to testify on and elaborate upon his opinions, generally summarized as follows: • Existing nonconforming uses that were lawful when established, but no longer comply with applicable regulations, may continue without complying with presently applicable regulations, but subject to the extensive limitations in Redmond's ordinances that restrict the continuation of existing nonconforming uses. • Nonconforming rights are limited to those rights associated with the actual use of a property at the time a new zoning ordinance is enacted. Redmond’s applicable zoning ordinance (Redmond Zoning Code Title 21) appears to have been enacted on April 5, 2011 with the passage of Redmond Ordinance No. 2584 (effective April 16, 2011) attached hereto. Subsequent to the adoption of Redmond Zoning Code Title 21 there have been amendments, including the addition of marijuana retail sales use and amendment of the general sales or services use definition. • The historic, established use of the subject building is as a warehouse for storage purposes. Although currently vacant and under renovation, the evidence indicates that the building (which encompasses the entire subject property) may have been used for storage associated with a manufacturing and retail feed business on a legally separate and separately owned property across the road from the subject property. This warehouse use did not “establish” any general retail sales use or retail marijuana use on the subject property or any nonconforming rights associated with either proposed use. • At most, the historic, limited, warehouse / storage use may have established nonconfomiing rights in the storage of goods from other retail establishments. The purported historic storage use of goods for an offsite retailer is a fundamentally different use with significantly different consequences than the proposal to conduct retail sales uses and retail marijuana sales uses on the subject property. The purported historic storage use clearly did not establish nonconforming rights associated with general retail sales and retail marijuana uses under the City’s nonconforming use ordinances. • The proposed general retail sales use and marijuana retail sales use of the subject property not nonconforming uses that may continue without complying with presently applicable regulations. There are no vested nonconforming rights associated with proposed general retail sales use and marijuana retail sales use associated with the subject property. • Because the newly proposed general retail and retail marijuana uses are not existing, previously established nonconforming uses, they have no vested right to commence (much less continue) under the City’s nonconforming use regulations for multiple, independently sufficient, reasons. Therefore, these newly proposed uses must comply with all presently applicable regulations pertaining to onsite parking, loading spaces, garbage/recycling an use are 51619859,1 Appellant WPDC Cleveland's Exhibit 16 - Page 2 of 24 ---PAGE BREAK--- spaces, bicycle parking spaces, dedication and construction of frontage improvements, payment of impact fees. • The newly proposed general retail and retail marijuana use of the site must satisfy presently applicable requirements for obtaining Site Plan Entitlement, Administrative Modification, and/or Design Review as the proposed project includes exterior changes to the building along with a change in land use. • Even if the presently proposed uses had been previously established as a result of the pui-ported historic use, the nonconforming use status would have been lost for multiple independently sufficient reasons under the City’s nonconforming use regulations, as follows: The alleged historic use was terminated, discontinued and/or abandoned when the feed store across the road permanently went out of business in or about 1999, and the building where the feed business had previously been conducted across the road from the subject property was demolished by 2012. See, e.g.RZC 21.40.010.C.l.e; Miller v. City of Bainbridge Island, 111 Wn.App.l52, 43 P.3d 1250 (2002). The purported historic use was changed fundamentally. Washington case law makes clear that “use” means the actual specific use, not some category of uses. In this case, the proposal is to change the use from mere storage of goods for an offsite retail store to the presently proposed general retail sales and retail sales of marijuana. The consequences of storage use are fundamentally different from the major traffic and parking consequences of retail use, especially retail marijuana use. Nonconforming use rights are lost by such changes in use. See, e.g., RZC 21.40.010.C.1 Coleman v. City of Walla Walla, 44 Wn.2d 296, 266 P.2d 1034 (1954). The applicant proposes to enlarge the subject building, requiring compliance with presently applicable parking requirements. See RZC 21.40.010.C.l.a. The applicant proposes to eliminate and convert a major part of the subject building’s internal floor area from a vehicle loading area to leasable retail space, which is a major enlargement of the building tantamount to converting parking spaces or loading areas to leasable floor space. This would be an enlargement of the historic storage use, too, as it creates more floor area for such use. The subject building is proposed to be “remodeled or rehabilitated” with change of use from the historic storage use and enlargement of the subject building’s square footage as described above, triggering parking requirements applicable to the proposed new uses including bicycle parking. See RZC 21.40.010.C.l.e. The proposed change in the historic storage use to general retail and retail marijuana use requires compliance with presently applicable parking requirements. See, RZC21.40.010.C.l.e. • The policy underlying nonconforming use case law and ordinances is to fulfill reasonable expectations arising out of actual historic land uses that were lawful when instituted and continuously conducted. The alleged historic use of part of the subject property to store goods for a separate retail feed store did not create reasonable expectations that entirely different retail use for marijuana sales that were not even lawful historically would be allowed in the future. The purpose and effect of nonconforming use law and policy is to fulfill reasonable expectations by allowing the continuation of an actual historic use, not to allow an entirely different new use without complying with presently applicable land use regulations. Doing so would make a mockery of the public policy underlying 51619859,1 Appellant WPDC Cleveland's Exhibit 16 - Page 3 of 24 ---PAGE BREAK--- nonconforming use case law and ordinances and would result in exploitive manipulation contrary to the public interest. The absurd result would be that historic use of a structure to store goods for any other use conducted elsewhere could be used to claim nonconforming rights as to the offsite use as a matter of right without complying with presently applicable regulations. • Any assertion that storage or warehousing of goods or materials for other offsite uses would effectively give all warehouse and storage buildings the right to be converted to radically different possibly unlawful) uses without complying with presently applicable regulations governing such uses. To illustrate, a few examples may be helpful: a mini-warehouse that stored goods for an apartment dweller could be used as a residential apartment; storage of materials for a restaurant or bar would allow the storage building to be converted to a restaurant or bar; warehousing office supplies would allow one to convert the storage building to an office. Such an interpretation of nonconforming use law and policy is unprecedented in Washington and anywhere else and would be patently absurd. • Cities must comply with their own ordinances and may not engage in unlawful, ultra vires acts by not requiring persons or entities to comply with applicable regulatory requirements. Cities may legislatively change the law but may not ignore and fail to apply the plain meaning of their existing, applicable regulations. Doing so would violate the “rule of law”, that is, the fundamental principle of our legal system that our citizens are governed by properly enacted laws and not the unbridled discretion of the people who happen to hold governmental offices or positions. No person or entity has a right to rely on erroneous direction or advice from a municipal employee about legal requirements. Erroneous advice direction given by City staff to the applicant in this matter does not create any rights. or 51619859 I Appellant WPDC Cleveland's Exhibit 16 - Page 4 of 24 ---PAGE BREAK--- Foster Pepper . r JS9 Richard L. Settle OF COUNSEL PRACTICE OVERVIEW SEATTLE T [PHONE REDACTED] F [PHONE REDACTED] Dick has more than 40 years of experience assisting clients with matters related to land the environment and municipal law. His experience includes the representation of use, landowners, developers, municipalities and citizen groups in virtually all areas of state and local land use regulation before state and local agencies and trial and appellate ricnafd.s([EMAIL REDACTED] courts. Dick was also recently singled out by the highly-regarded Chambers USA legal directory, which annually interviews firm clients. In addition to a top-ranking of Foster Pepper's Land Use group. Chambers described Dick as “the leading scholar in land and noted for his “vast experience in land use laws and regulations." SERVICES Land Use, Planning & Zoning Environmental & Natural Resources Environmental Litigation Infrastructure use REPRESENTATIVE WORK -Knight v. CityofYelm -155 Wn.App. 1027, Not Reported in P.3d, 2010 WL 1454096 - Thurston County v. Western Washington Growth Management Hearings Board - _Wn.App._, 190 P.3d 38 (2008) - King County Wastewater Treatment Division v. King County Hearing Examiner -135 Wn.App. 312 _P.3d_ (2006) - Wells V. Whatcom County Water District No. 10-105 Wn.App. 143, 19 P.3d 453 (2001) - Sammamish Community Municipal Corporation v. City of Bellevue -107 Wn.App 686, 27P.3d 684 (2001) -Alpine Lakes Protection Society, et al. v. Washington Forest Practices Board, Washington State Department of Ecology, Washington Department of Natural Resources, and Washington Forest Protection Association - Wn. App. P.3d 2006 WL 2865788(2006) - West Main Associates v. City of Bellevue - 49 Wn. App. 513, 742 P.2d 1266 (1987) - Orion Corp. v. State of Washington -109 Wn.2d 621,747 P.2d 1062 (1987) Tup Ranked CHAMULKS USA Individual 1 Appellant WPDC Cleveland's Exhibit 16 - Page 5 of 24 ---PAGE BREAK--- Pepper , Foster L. Settle Richard SEATTLE OF COUNSEL [EMAIL REDACTED] F 206,749.2011 T [PHONE REDACTED] RECOGNITION -Chambers USA Leading Individual, Real Estate Law: Zoning/Land Use, 2009-2015 -Association of Washington Business, Heavy Lifter Award, 2013 -2010 Top Lawyer, Seattle Metropolitan magazine -Top Lawyers in Washington, Environmental/Natural Resources, Washington CEO, 2008 -Washington Super Lawyer list, 2002-2006Phi Beta Kappa -Phi Delta Phi -Martindale-Hubbell AV rating ACTIVITIES -Washington State Department of Ecology, Advisory Committee on SEPA and Climate Change Impacts, 2008-Present -Washington State Climate Action Team SEPA IWG, Co-Lead, 2008-Present -Washington State Public Trust Doctrine Advisory Commission, Member, 1990-1992 -Washington State Bar Association + Environmental and Land Use Law Section, Chair-elect, Chair and Past-Chair, 1983-1985 + Executive Board, Environmental and Land Use Law Section, Member, 1978-1985 + Environmental and Land Use Law Section Newsletter, Co-editor, 1978-1984 -Private Sector Review Panel, Washington State Local Ordinance Study Commission Member, 1987-1988 -Northwest Land Use Review, Editorial Advisory Board, Member, 1983-Present -Washington State Commission on Environmental Policy, Legal Technical Committee (review and revision of State Environmental Policy Act), Member, 1981-1983 PUBLICATIONS -"Richard Settle Testifies on Legal Ramilicalions of Global EIS for Coal Terminal,” Co-Author, Foster Pepper News, January 2014 -"EcoiQQV Requires Unprecedented Global SEPA Analysis,” Co-Author, Foster Pepper News, August 2013 Supreme Court Decision Expands Scope of Takings Clause,” Co-Author, Foster Pepper News, June 2013 -"Oeparlment of Ecoloov AdODls SEPA Rule Amendments, Effective January 28. 2013. Increasing the Levels of Certain Caieaorical Exemolions. as Required bv 2012 Legislation," Co-Author, Foster Pepper News, January 2013 -“Foster Fenner Attorneys Dick Settle and Pal Schneider Appointed to Advise Stale on Increasing SEPA Exemptions and Revising Checklist,” Co-Author, Foster Pepper News, August 2012 -"Governor Acts on Bill Amending Environmental and Natural Resource Laws,” Co-Author, Foster Pepper News, May 2012 -"Legislature Atttefids imqoriani Environmental and Natural Resource Laws," Co-Author, Foster Pepper News, April 2012 -"Suoretne Court Sheds Light on Perils of Appealing a County's Refusal to Amend its Comprehensive Plan," Co- Author, Foster Pepper News, March 2012 -"Court Clarifies SEPA Planned Action Provision that Expedites Sustainable Communities," Co-Author, Foster Pepper News, February 2011 -"SEPA and Climate Chance Impacts: Report and Recommendations of the Climate Action Team," Author, Environmental & Land Use Law Newsletter, Vol. 36 Number 2, August 2009 -"Washington’s Court of Appeals Makes Important SEPA Review Ruling,” Author, Foster Pepper News Alert, November 2006 2 Appellant WPDC Cleveland's Exhibit 16 - Page 6 of 24 ---PAGE BREAK--- Foster pepper Richard L. Settle OF COUNSEL F [PHONE REDACTED] [EMAIL REDACTED] T [PHONE REDACTED] SEATTLE -"Washington's Growth Management Revolution Goes to Court,” Seattle University Law Review, Volume 23, Summer 1999, Number 1 -"Practical Magic," Foster Pepper Land Use & Environmental News, February 1998 -"Timing of the New SEPA Rules,” Foster Pepper Land Use & Municipal News, December 1997 -"Decision in Excessive Land Use Regulation Upheld,” Foster Pepper Real Estate & Land Use News, July 1997 -"State Supreme Court Narrowly Interprets SEPA, Appearance of Fairness, and Open Public Meetings Requirements in Upholding Permit for Regional Solid Waste Landfill,” Foster Pepper Land Use & Municipal News, August 1996 -"The Growth Management Revolution in Washington: Past, Present, and Future,” 16 University of Puget Sound Law Review 867, 1993 -"Regulatory Taking Doctrine in Washington: Now You See It, Now You Don’t," 12 University of Puget Sound Law Review 339, 1989 -"The Washington State Environmental Policy Act, A Legal and Policy Analysis," Butterworth Legal Publisher, 1987, 1990, 1992 Supplement -"Washington Land Use and Environmental Law in a Nutshell," Washington State Bar News, May 1986 - "Washington Land Use and Environmental Law and Practice,” Butterworth Legal Publisher, 1983 -"Potential Legal Facilitation or Impediment of Wind Energy Conservation System,” 58 Wash. L. Rev. 387 (with Kim R. York), 1983 PRESENTATIONS -"Greenhouse Gas and Climate Change Considerations,” Moderator, Permitting Strategies for Large, Controversial Projects in Washington State and the Northwest, The Seminar Group, October 2015 -"Case Updale: Imoorlant Lessons from Recent Washington Cases,” Speaker, Foster Pepper 2015 Land Use/Real Estate Briefing: Essential Industry Updates, October 2015 -"Arreslfad Develoonionl Becunniiu UtvAftesied: The Inlerseclion p( Lang Use Law and Clean Waier Law,” Speaker, 15'^' Annual Comprehensive Conference on Clean Water and Stormwater, Law Seminars International, April 2015 -"The Most Important SEPA/NEPA Compliance, Litigation, And Policy Issues Confronting Land Use And Environmental Professionals Today," Co-chair and speaker, 12th Annual SEPA & NEPA Seminar, January 2015 -"Land Use Law Update,” Speaker, WSBA 2014 Environmental and Land Use Law Section Midyear Meeting and Conference, May 2014 -"Effective Negotiating Strategies for Settling SEPA Disputes,” Speaker, 11th Annual One-Day Seminar on SEPA & NEPA New Regulatory, Legal and Business Developments, January 2014 -"Update on the Department of Ecology Working Group on SEPA Rule Changes," Speaker, 22nd Annual Conference Growth Management Act and Land Use: New Developments and Interrelationships Among the GMA, Land Use and Environmental Regulations, November 2013 -"WaBhifiQton Siaie Deoartmenl of Ecoioov Scoping Decision." Presenter, American Association of Railroad Government Affairs, September 2013 -"SEPA Reform Rule-Making,” Presenter, Washington Chapter of American Planning Association Conference, May 2013 -"Land Use Law Update," Speaker, 2013 Environmental and Land Use Law Section Midyear Meeting and Seminar, Washington State Bar Association, May 2013 -"New amendments and on-going rulemaking, recent case law and guidance, practical tips for compliance," Speaker, Law Seminars International - Tenth Annual Seminar on SEPA & NEPA, January 2013 -"SEPA Update: New SEPA Exemolions^New Legislation — Early SEPA Review,” Panelist, 2012 Land Use & Environmental Seminar, October 2012 on 3 Appellant WPDC Cleveland's Exhibit 16 - Page 7 of 24 ---PAGE BREAK--- PEPPER , FOSTER Richard L. Settle OF COUNSEL F [PHONE REDACTED] ric0arti.setlie(5;[oslfer.com T [PHONE REDACTED] SEATTLE -“New Legislation for Land Use and Natural Resources,” Panelist, New Legislation for Land Use and Natural Resources: Practical Implications of Recently Enacted Policies, May 2012 -“SEPA & NEPA: The Latest on Compliance from Developing Proposals Through Judicial Review," Co-Chair, Law Seminars International's Ninth Annual Advanced One-Day Workshop on SEPA & NEPA, January 2012 -'"Top Ten’ Land Use Cases,” Speaker, Land Use/Environmental Group Seminar, May 2011 -"Is SEPA Still Vital, Or Is It Over The Hill?” Panelist, SEPA AT 40 - An AGO CLE Lite, May 2011 -"SEPA & NEPA; The Latest on Compliance from Developing Proposals Through Judicial Review,” Co-Chair, Law Seminars International's Eighth Annual Advanced One-Day Workshop on SEPA & NEPA, January 2011 -“Settle’s Ten; The Ten Greatest GMA Cases,” Speaker, UW CLE - Land Use 2011: Law and Practice, December 2010 -“Settle's Ten: The Ten Greatest Land Use Cases," Speaker, UW School of Law, Land Use 2010; Earth, Wind and Fire (and Water), January 2010 -“Eighth Annual Advanced One-Day Workshop on Washington's State Environmental Policy Act (SEPA)," Program Co-Chair, Law Seminars International, January 2010 -“Knight V. City of Yelm: Water Availability and Ecology's Role in Local Land Use Decision Making,” Speaker, LSI - Washington Water Law 2009, June 2009 -“Think Globally, Act Locally: Incorporating Climate Change Considerations into SEPA Process," Speaker, The 2009 Environmental and Land Use Law Section Midyear Meeting and Seminar, April 2009 -“Intersection of Climate Change, SEPA and Entitlements,” Speaker, 2009 Real Estate & Land Use Seminar, April 2009 -“Addressing Climate Change Through the SEPA Process,” Speaker, Planning Association of Washington 2009 Spring Conference, April 2009 -“Legislative Update on SEPA and Climate Change," Speaker, The Seminar Group, February 2009 -“SEPA Working Group Recommendations to the Climate Action Team,” Speaker, SEPA & NEPA; The latest on Compliance from Developing Proposals Through Judicial Review, January 2009 -“Climate Change, SEPA, and Land Use Planning," Speaker, Northwest Environmental Business Council, November 2008 -"The Year's Most Significant Land Use Court Decisions," Speaker, Hot Issues in Real Estate and Land Use Development, March 2007 -“Rural lands; What can we learn from Thurston County’s experience with initial adoption and recent updates to its Comprehensive Plan?” Speaker, Land Use in Washington: The Latest in Planning and Project Permitting, April 2007 -“SEPA Case Law Update," Speaker, SEPA/NEPA Workshop, Law Seminars International, January 2006 -“Designing SEPA Compliance for Major Essential Public Facilities,” Presenter, Regulatory Requirement & Permitting Of Essential Public Facilities, The Seminar Group, November 2004 -“Nonconforming Development, Vested Rights, and the Nykreim Case,” Presenter, APA Annual Planning Law Conference, March 2003 -“What Does GMA Mean in 2000: GMA Case Law," Presenter, Growth Management Act 2000, September 2000 -“The Taking Issue and Federal and State Limitations on Land Use and Environmental Regulatory Burdens,” Presenter, Environmental and Land Use Track of the National CLE Conference, January 1999 -“Trends in Land Use Decision Making From Washington State,” Presenter, Washington Association of Hearing Examiners Conference, October 1998 -“Takings: Constitutional Limits on Governmental Regulations," Presenter, Land Use & Environmental Law CLE Conference, July 1997 -“Exploring the Uncharted Waters of Regulatory Takings," Presenter, "The New Frontier of Takings Law and What it Means to You" presented by the University of Washington, School of Law, March 1995 4 Appellant WPDC Cleveland's Exhibit 16 - Page 8 of 24 ---PAGE BREAK--- Foster Pepper , Richard L. Settle OF COUNSEL richarti.seiilefdifosler.com F [PHONE REDACTED] T [PHONE REDACTED] SEATTLE -“Future Directions for Land Use Reguiation and Takings Doctrine," Presenter, "The Lucas Aftermath: Baiancing Private Property Rights and Public Regulation of Land Use" presented by the University of California at Los Angeles, School of Law, December 1992 -“The Public Trust and Takings," Presenter, The Washington Public Trust Doctrine Symposium presented by Washington State Department of Ecology, November 1992 -“An Historical Overview of Growth Management in Washington,” Presenter, Symposium on Growth Management presented by the University of Puget Sound Law Review, November 1992 -“The Limits of Land Use Regulation; The Private View," Presenter, Conflict in Growth Management presented by the Administrative Law Section of the Washington State Bar Association, October 1992 -“Taking Limitation on Environmental Regulation,” Presenter, Conference on "Takings After Lucas" presented by the Federalist Society, September 1992 -“Recent Developments in Constitutional Limitation on Environmental Regulation," Presenter, Environmental Law Conference presented by Executive Institutes, June 1992 -"Regulatory Takings and Substantive Due Process: The 1992 Washington Trilogy," Presenter, 1992 Convention of the Association of Washington Cities, June 1992 -“Regulatory Takings and Substantive Due Process Washington Style," Presenter, Annual Spring Conference of the Washington State Association of Municipal Attorneys, June 1992 -“Recent Developments in Land Use Litigation," Presenter, "Rough Times and Regulations: Preserving the Environment in the 1990’s", May 1992 -“Growth Management: GMA I and GMA II, a Progress Report,” Presenter, Annual Fall Conference of the Washington State Association of Municipal Attorneys, October 1991 -“Recent Development in Land Use Case Law," Presenter, Hanging in the Balance, May 1991 -“Federal Wetlands Regulation," Presenter, Wetlands 1991, April 1991 -“Local Sensitive Area Regulation,” Presenter, "Wetland Sensitive Area Regulation," American Water Resource Association, November 1990 -“Washington Regulatory Taking Doctrine After Presbytery," Presenter, Annual Fall Conference of the Washington State Association of Municipal Attorneys, October 1990 -"Regulatory Taking Constraints on Sensitive Area Regulation," Presenter, The Regulation of Environmentally Sensitive Areas, October 1990 -“Regulatory Taking Doctrine in Washington: Now You See It, Now You Don’t,” Presenter, "Growth: Is Anyone in Charge?" May 1990 -“Analysis or Orion Corp. v. State," Presenter, Environmental and Land Use Law Section of the Washington State Bar Association, January 1988 -“Developer Exactions,” Presenter, 1987 Annual Meeting of Washington State Association of Sewer Districts, November 1987 -“The Impact of Nollan on Public Access to Shorelines,” Presenter, Public Access Conference sponsored by Washington Department of Ecology, September 1987 -“Recent Developments in the Public Trust Doctrine and Regulatory Takings," Presenter, State Department of Ecology, June 1987 -“The U.S. Supreme Court and Regulatory Takings and Municipal Liability for Land Use Regulatory Conduct,” Presenter, Association of Washington Cities, June 1987 -“The Legal Limits of Development Fees and Recent Developments in Land Use and Environmental Law," Presenter, Thirtieth Annual Meeting of the Washington State Association of Municipal Attorneys, June 1987 -“Washington Land Use Law - the Climate for Legislative Reform," Presenter, Land Use Committee of the Washington Environmental Council, December 1986 5 Appellant WPDC Cleveland's Exhibit 16 - Page 9 of 24 ---PAGE BREAK--- Foster Pepper ■la Richard L. Settle OF COUNSEL F [PHONE REDACTED] rich afd.set[le@fostef. com T [PHONE REDACTED] SEATTLE -"Development Fees: Legal Authorities and Limitation,” Presenter, "Development Fees: The Legal Authority, Limitations and Practicai Techniques," December 1986 -"History and Current Legai Status of Public Trust Doctrine in Washington,” Presenter, "The Public Trust Doctrine: Protecting Washington's Natural Heritage," November 1986 -“Bases of Land Use Law," Presenter, Land Resources: Public and Private Control, October 1986 -“Land Use and Environmental Law," Chair and Speaker, one-half day program for the 1985 Washington Judicial Conference, August 1985 -"Tort Laws and Reform," Speaker, Alaska Judicial Conference, May 1985 EXPERIENCE -Foster Pepper PLLC, Of Counsel, 1986-Present -Seattle University School of Law, Professor of Law, 1972-Present -University of Puget Sound, Assistant and Associate Professor, 1968-1972 -Legal Consultant, 1972-1985 BAR ADMISSIONS -Washington, 1967 EDUCATION University Of Washington, 1967 University of Washington (magna cum laude), 1964 6 Appellant WPDC Cleveland's Exhibit 16 - Page 10 of 24 ---PAGE BREAK--- CODE ORDINANCE CITY OF REDMOND ORDINANCE NO. 2584 I THE CITY OF REDMOND, WASHINGTON, ADOPTING THE REDMOND ZONING CODE AND AN ORDINANCE OF APPENDICES AS TITLE 21 OF THE REDMOND MUNICIPAL CODE; REPEALING THE REDMOND COMMUNITY DEVELOPMENT GUIDE, RMC TITLES 20A, 20C, 20D, 20E, AND 20F; ESTABLISHING THE REDMOND COMPREHENSIVE PLAN AS A SEPARATE DOCUMENT NOT CODIFIED AS PART OF THE REDMOND MUNICIPAL CODE; ESTABLISHING A DEADLINE FOR EXISTING RECREATIONAL VEHICLES WITH RV LOCATION, SCREENING, REQUIREMENTS IN THE PARKING CHAPTER OF THE ZONING CODE; ESTABLISHING A DEADLINE FOR EXISTING STORAGE CONTAINERS TO COMPLY WITH THE REQUIREMENTS FOR SUCH CONTAINERS IN THE OUTDOOR STORAGE CHAPTER OF THE ZONING CODE ; ADOPTING A ZONING CODE EVALUATION PLAN; PROVIDING FOR SEVERABILITY, AND ESTABLISHING 20B t TO COMPLY AND OTHER t AN EFFECTIVE DATE I identified the Redmond code Rewrite Project was WHEREAS r 2009-2010 Budgeting by Priorities and approved through the process; and the Code Rewrite Project commenced in January 2009 WHEREAS, with the goal of adopting a new zoning code by Spring 2011; WHEREAS, the goal of the Code Rewrite Project was to rewrite the City's existing development regulations and to zoning code that: improves clarity. and provide for a new and usability for residents, predictability, conciseness. and the business community,- development professionals, the integrity of code concepts adopted over time by the City Council while utilizing new ideas where appropriate to I maintains Ordinance No. 2584 AM No. 11-076 Page 1 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 11 of 24 ---PAGE BREAK--- t implements clearly and and achieve these concepts; I visions and policies of the Redmond effectively the goals Comprehensive Plan; and the Redmond City Council created a special-purpose WHEREAS, the Redmond Code Rewrite Commission, for the sole commission, purpose of reviewing amendments proposed as part of the Code Rewrite; and WHEREAS, in order to facilitate revision, the existing Redmond Community Development Guide (RCDG) was broken up into 13 each of which was reviewed by the Code topic-based packages. Rewrite Commission in study sessions and public hearings; and recommendations on each of the topic-based WHEREAS, I packages were forwarded to the Redmond City Council during the of the Code Rewrite Project and the Council has, based on course adopted Resolution a series of study sessions and meetings. 1322, 1337, 1339, 1343, 1347 and 1350, expressing the Nos . intent to adopt each code rewrite package subject to Council's reconciliation; and the Redmond City Council has held two additional WHEREAS, public hearings to consider six additional amendments proposed the Code Rewrite Commission's review in after completion of November 2010; and WHEREAS, the Redmond City Council has also determined to I of the City's development concurrently adopt two amendments Ordinance No. 2584 AM No. 11-076 page 2 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 12 of 24 ---PAGE BREAK--- Planning Commission: one regulations recommended by the City's amendment of the Overlake Business and Advanced I relating to the and Overlake Village zoning regulations in order to (as provided in City Technology implement the Overlake Neighborhood Plan with modifications) , and one 1348 Council Resolution No. amending the new Redmond Zoning Code in order to implement the (as provided in City Council Creek Neighborhood Plan Bear Resolution No. 1349); and detailed above, the after due consideration as WHEREAS, Redmond City Council has determined to adopt the Redmond Zoning Code and Appendices in the form attached to this ordinance and to make such minor authorize City staff and the codifier to I be necessary to reconcile all of the editing changes as may and to compile the separate topic-based packages single, unified Redmond Zoning Code. same as a the city council of the city of REDMOND, NOW, THEREFORE WASHINGTON, DO ORDAIN AS FOLLOWS: 2, the Redmond Section Classification. Section 1. and Appendices contained in Exhibit 1 to this is of a general and permanent nature and shall become Sections 3 through 10 are non-code. Zoning Code ordinance. a part of the City Code. RMC Title 21, the Adoption of Title. Section 2. Redmond Zoning Code, attached to this ordinance as Exhibit 1 and incorporated herein as if fully set forth. t I is hereby adopted. i. Ordinance No. 2584 AM No. 11-076 Page 3 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 13 of 24 ---PAGE BREAK--- and the Appendices to the Redmond Zoning Code are hereby adopted as appendices to the Redmond Municipal Code. Code and Appendices so adopted include all of the topic-based packages approved by the Redmond Code Rewrite Commission and endorsed by the Redmond City Council in Resolution Nos. I The Redmond Zoning 1322, 1337, 1339, 1343, 1347, and 1350, as modified by the Overlake Technology and Overlake village Business and Advanced regulations endorsed by the Redmond City Council in Resolution No. 1348 (as modified and incorporated into Exhibit 1) and the amendments implementing the Bear Creek Neighborhood Plan endorsed by the Redmond city Council in Resolution No. 1349, and those six amendments approved by the Redmond City Council after I completion of the Code Rewrite Commission's work in November 2010 . The Redmond Redmond Comprehensive Plan. Section 3. Comprehensive Plan, as the same currently exists, is repealed as Title 20B of the Redmond Municipal Code and is reenacted as a separate document not codified in the Redmond Municipal Code. The Redmond Community Repeal of RCDG. Section 4, Titles 20A, 20B, 20C, 20D, 20E, and 20F of Development Guide, the Redmond Municipal Code, and all appendices thereto, are hereby repealed. Deadline for Bringing Recreational Vehicles Section 5. I All recreational into Compliance with Screening Regulations. Ordinance No. 2584 AM No. 11-076 Page 4 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 14 of 24 ---PAGE BREAK--- vehicles placed on any property within the City of Redmond after the effective date of this ordinance shall be required to comply I with the recreational vehicle location, screening and other requirements of the Parking chapter of the Redmond Zoning Code. All recreational vehicles stored on any property within the City of Redmond prior to the effective date of this ordinance shall be brought into compliance with the recreational vehicle location, screening, and other requirements in the Parking chapter of the Redmond Zoning Code no later than August 1, 2011. Deadline for Bringing Storage Containers Section 6. All storage containers placed on any property within the City of Redmond after the effective date of this ordinance shall be required to comply with the requirements of the Outdoor Storage chapter of the Redmond Zoning Code relating All storage containers stored on any into Compliance- I to such containers. property within the City of Redmond prior to the effective date of this ordinance shall be brought into compliance with the requirements for storage containers set forth in the Outdoor t the Redmond Zoning Code no later than Storage chapter of August 1, 2011. Zoning Code Evaluation Plan. In order to Section 7. evaluate the effectiveness of the Redmond Zoning Code in meeting the objectives of the Code Rewrite Process, the Zoning Code I Evaluation Plan attached to this ordinance as Exhibit 2 and Ordinance No. 2584 AM No. 11-076 Page 5 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 15 of 24 ---PAGE BREAK--- if set forth in full is incorporated herein by this reference as I hereby adopted. At the Authority and Direction to Codifier. Section 8. time this ordinance is adopted, a final numbering system for the Redmond Zoning Code has not yet been established and the topic- been completely integrated. therefore authorized and The based packages have not codifier of the Zoning Code is in consultation with the City Clerk and the Planning directed, to establish a numbering system, to insert appropriate and to make such minor, editorial changes, and compile and publish the Director, cross-references, corrections as may be necessary to Zoning Code as a single, consolidated Title 21 of the Redmond Municipal Code and to publish the Zoning Code Appendices The Codifier is also I as appendices to the Redmond Municipal Code. to provide for all words that are authorized and directed to be italicized and to defined in the Redmond Zoning Code provided for and the insertion of all graphics provide for referred to in the Redmond Zoning Code and Appendices. If any section, sentence, Severability. Section 9. clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such ^ unconstitutionality shall not affect the validity invalidity sentence, clause or constitutionality of any other section. I or phrase of this ordinance. Ordinance No. 2584 AM No. 11-076 Page 6 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 16 of 24 ---PAGE BREAK--- shall take Effective Date. This ordinance Section 10■ I effect five days after publication of an approved summary consisting of the title, or as otherwise provided by law. ADOPTED by the Redmond City Council this 5 ch day of April, 2011. t CITY OF REDMOND JOHN MARCHIONE, MAYOR ATTEST: (SEAL) I , CITY CLERK APPROVED AS TO FORM OFF56E OF THE CITY ATTORNEY JAMES E. HANEY, CIT^ATT^NEY March 30, 2011 April 5, 2011 April 5, 2011 April 11, 2011 April 16, 2011 FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: SIGNED BY THE MAYOR: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. 2584 •V I Allen, Carson, Cole, Margeson, Myers, Stilin and Vache ADOPTED 7-0: Ordinance No. 2584 AM No. 11-076 Page 7 of 7 Appellant WPDC Cleveland's Exhibit 16 - Page 17 of 24 ---PAGE BREAK--- EXHIBIT 1 I RMG Title 21 Redmond Zoning Code Available at: http://www.redmond.qov/PlanBPro1ecti3/CoinprehensivePlaTiniiiq/ZoningCodeRewrite/ I I Ordinance No. 2584 AM NO. 11-076 Page 1 of 1 EXHIBIT 1 Appellant WPDC Cleveland's Exhibit 16 - Page 18 of 24 ---PAGE BREAK--- EXHIBIT 2 1 I Zoning Code Evaluation Plan I. Survey Element: A survey will be provided as indicated below for one full year following adoption of the new code. A survey will be formatted similar to the survey conducted the outset of the rewrite (see Attachment Staff will mail and/or e-mail a survey to each applicant, party of record, and professional that is involved in any application submitted to the planning department. The survey will be provided at the beginning of application review to be completed after review is complete. D. The survey will also be provided to staff that is involved in day-to-day administration of the code. A. B. C. I II. Issues Identification Element: Staff will maintain an ongoing list of any code conflicts or unanticipated issues that arise through application of the new code. III.In-Depth Review Element: Applicants and staff will use two or three project applications to test the code in- depth. i Staff will seek two or three applicant-volunteers to test the new zoning code. Of the projects used, one will be a single-family residential, one will be in an urban center, and one will be unrestricted, but possibly a public project. If there is an interested neighborhood group, that group will also be part of this test run element. A. Staff, the applicant, and the neighborhood group will each keep a detailed log of code issues. Issues could include difficult finding or interpreting regulations, or missing or contradictory regulations. Staff will offer to meet with participants to discuss the issues identified and gain a better understanding of issues and possible alternatives or solutions. B. I C. Ordinance No. 2584 TiM No. 11-076 Page 1 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 19 of 24 ---PAGE BREAK--- EXHIBIT 2 I D. Identified issues will be reported per the Reporting Element, described below. IV. Reporting Element: A. Staff will provide quarterly reports to the Council Planning and Public Works Committee regarding survey results and items identified on the "issues identification list". B. Staff will provide the Council and Planning Commission written and verbal status reports every six months. Other parties interested may also be informed vie written status report. C. After one year of administering the new code, completing the surveys and tracking issues, staff will prepare a work program, if necessary, to bring any necessary Development Guide Amendments through Planning Commission. D. The adopting ordinance approving the new zoning code will Include provisions for the reporting elements noted above. I I Ordinance No. 2584 AM No. 11-076 Page 2 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 20 of 24 ---PAGE BREAK--- Zoning Code Customer Survey I Dear Stakeholder, Tlic Gky of Redmond recently completed a multi-year effort to rewrite.its zoning code. A rewrite was needed to ,achic\ic greater clarity, conciseness, and usability, while maintaining rJie goals and vision die City- Has adopted in its Coniprehcnrive Plan. For more information on this project, please visit die project home page at Staff is now beginning the implementation phase of this project, which consists of using the new zoning code and.detetmining where tvveaks need to be made to achieve code rewrite objectives. Staff would lie to lipw how JW! think the'new zoning code complies with the adopted project priiidpics. Bleasc t.eli .14s what you drink of die new code by completing the surr'ey below, lire survey-takes approximately S minutes to complete. Please contact Lynda Aparicio if you have any c^uesrions. f Tell us about yourself 1. Ate you (check all drat apply) □ Resident Business representadve Developer □ City staff □ I □ □ t I Ordinance No. 2584 AM No. 11-076 Page 3 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 21 of 24 ---PAGE BREAK--- Zoning Code Customer Survey I 2. Based on your experiences over the last 3 years, would you consider yourself a frequent infrequent user of the zoning code? (check one) □ Frequent user (use the RCDG about once per month) □ Infrequent user (use the RCDG less than once pet month) or 3. Over the last 3 years, what kind(s) of permits/actions have you used the zoning code for? (check all that apply) □ Type II Permits: Administrative Design Flexibility, Administrative Modification, binding Site Plan, Ijevel T1 Certificate of Appropriateness, Short Plat, Site Plan Entitlement, Special T)'pe I Planning permits: Bonndaty \Jne Adjustment, Sign Permit or P/vgram, Shoreline Exemption, short-term Temporaty Use, Free Removal, Level 1 Certificate of Appropriateness □ Use □Type III Permits: Preliminary Plat, Reasonable Use Exception, Shoreline Conditional Use, Shoreline Variance, Variance □Type I Building permits: Building, Electrical, Mechanical Plumbing I □Type IV Permits: Concurremy Exemption, Conditional Use, Essential Public Facitiy Type I Fire permits: Fire Protection, Fiat^ardous Materials, U FC □ □Type V Permits: Annexation, Final Plat, Plat Alteration, Plat Vacation, Right-of Way Vacation, long­ term Temporary Use Type I Public Works permits: Clearing and C fading. Flood Zone, Flcr^ardons Materials Inventor)/ Statement or Management Plan, l-lydrant, Right-of-Way Use, Sewer, Specied Event, Water □ □Type VI Permits: Deiieloptaenl Creide Amendment Other (please specify): □ General 4. What works well in the zoning code today? 5. Is there anything else you’d like to tell us about the zoning code? I Ordinance No. 2584 AM No. 11-076 Page 4 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 22 of 24 ---PAGE BREAK--- Zoning Code Customer Survey The temainiiig following scale. Please circle the answer that most accurately reflects your opinion. . . I 5 3 4 2 1 Strongly Disagrvt Central ' ■ Dhagm . Stivf/g/)! ■ Zoning Code Evaluation - Organization______ t'hcsc^ques^Hpnsirckte'tp theiadppted'.ptojectpmiqiples.oh brganizaHon.: These principles provide guidance foc haw-^j; z.oning.epd'e should be structured, the-location and cotisolidarion of important itif'prmadon; ’tjVc;'ri;rati.onjhips..b,c.ny<:cn l^cy components, and how the needs of die stakeholders should.be feflected-in the or^nization of tlic 6. Regulations in the code arc grouped in a logical and efficient structure 5 4 3 2 1 7. Basic regulations are found in obvious locations, not in footnotes or other easy to miss places 5 4 3 2 1 8. Definitions, procedures and regulations are clearly separated 5 3 4 2 1 9. It is clear when city-wide regulations apply and when unique regulations apply 3 4 2 1 s I 10. ITic code is easy to use, navigate and search 4 5 3 2 1 Zoning Code Evaluation - Regulations__________ These quesrions These principles promote prediciabilicy of pertrut review and project qualit)', and regulations that reflect desired outcomes as expressed Ihrough'pubiic 11. ITie code makes clear connections between regulations and policy 5 3 2 4 1 12. of quality arc conveyed clearly and succinedy 5 3 4 2 1 « 13. The code promotes environmentally sustainable development practices 5 3 4 2 1 14, The code provides flexibility and predictability within defined limits 5 3 4 2 1 15. Regulations are expressed in easily-understood language I 3 5 4 2 1 16. Maximum development potential is clearly conveyed Ordinance No. 2584 AM No. 11-076 Page 5 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 23 of 24 ---PAGE BREAK--- Zoning Code Customer Survey 4 5 2 3 1 I Zoning Code Evaluation - Permit Review Procedures These questions relate to tlae adopted project pruiciples on permit review procedures. These principles ensure dmely and legally defensible land use decisions, and ensure that decision-making is predictable, transparent, and consistent with adopted standards and 17. Early notice is provided for proposed land use actions and there are sufficient opportunities for timely input 5 3 4 2 1 18. Decision-making timelines meet ot arc quicker tlian statutor)- requirements 5 4 2 3 1 19. The administrative review process is used for permits whth clear approval criteria 5 4 3 2 1 20. Procedures arc described clearly and succinedy 4 5 3 2 1 21. When a proposal requires multiple permits, the process is understandable and accessible 5 3 4 2 1 I Other comments: Thank you for your input! E Ordinance No. 2S84 AM No. 11-076 Page 6 of 6 EXHIBIT 2 Appellant WPDC Cleveland's Exhibit 16 - Page 24 of 24