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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 27 APPELLANT'S RESPONSE BRIEF - 1 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax BEFORE THE HEARING EXAMINER FOR THE CITY OF REDMOND In the Matter of the Appeal of RTC 74th Street Property LLC Of the November 17, 2017 Approval of BLDG- 2016-09558 related to the Redmond Town Center Apartments project in Redmond, WA No. APPELLANTS’ RESPONSE BRIEF A. The City’s Interpretation of RCW 82.02.100(1) Is Inconsistent with State Law. Appellants’ principal claim in this appeal is that RCW 82.02.100(1) prohibits Redmond from requiring payment of a transportation impact fee or a park impact fee as a condition of issuing a building permit for the Redmond Town Center Apartments Project because the impacts of development of Redmond Town Center on City transportation facilities and on park facilities have already been fully mitigated through SEPA. This claim falls squarely within the meaning and intent of RCW 82.02.100(1), which provides that person required to pay a fee pursuant to RCW 43.21C.060 for system improvements shall not be required to pay an impact fee under RCW 82.02.050 through 82.02.090 for those same system improvements.” According to the City, however, the exemption in RCW 82.02.100(1) does not apply in this case because the system improvements at the time the Master Plan SEPA mitigation was required and when the current impact fees were imposed are entirely different--that is, there is no duplication of impacts when the SEPA mitigation and impact fees address different capital facilities. ---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 27 APPELLANT'S RESPONSE BRIEF - 2 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax As demonstrated in Appellants’ Hearing Brief, this interpretation is inconsistent with state law. Appellants paid full mitigation under SEPA to mitigate impacts to two types of system improvements from full build out of Redmond Town Center: to “Public streets and roads” and to “publicly owned parks, open space, and recreational facilities,” two of the four types of system improvements for which the City can impose impact fees. RCW 82.02.090(7), Thus, consistent with RCW 82.02.100(1), the City should be prohibited from imposing impact fees to fund improvements to these same types of system improvements for which mitigation was provided under SEPA. To do otherwise would be inconsistent with the intent of RCW 82.02.050(1)(c), which is to ensure “specific developments do not pay arbitrary or duplicative fees for the same impacts.” Further, it’s the duplication of the amounts paid for the same impacts to system improvements as a whole that is prohibited under RCW 82.02.100(1), not the impacts to any one capital facility. See, City of Olympia v. Drebick, 156 Wn.2d 289, 296 (2006) (“the legislature authorized local governments to calculate the fees by tying the particular development to the service area's improvements as a whole, not to particular system improvements within the service area.”). The only authority cited by the City for its interpretation of the meaning of the term “same system improvements” in RCW 82.02.100 is United Dev. Corp. (“UDC”) v. City of Mill Creek, 106 Wn. App 681, 689, 26 P.3d 943 (2001). However, this case does not even reference or address RCW 82.02.100(1); nor does it support the City’s interpretation of RCW 82.02.100(1). At issue in UDC was whether all traffic impacts from a small residential subdivision (Mill Creek 23) were mitigated in earlier stages of the development process for a planned residential community of approximately 1,200 acres in Mill Creek. Citing RCW 82.02.050(1)(c) for the proposition that a developer may not be required to mitigate the same impact twice, the Court held that the traffic impact fees for Mill Creek 23 were not duplicative of previous mitigation. In so holding, the Court found that an earlier road improvement agreement under which UDC would build six roads for the County did not determine the entire fair share of road ---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 27 APPELLANT'S RESPONSE BRIEF - 3 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax improvements for the entire Mill Creek development and was not even a required improvement for the sector in which Mill Creek 23 was located, that traffic improvements for another subdivision in the same sector as Mill Creek were not intended to mitigate all traffic impacts for this sector let alone an individual subdivision such as Mill Creek 23, which was made explicitly subject to preliminary and final review and approvals, and that the road impact agreement addressed road improvements while the Mill Creek mitigation was assessed based on traffic mitigation formulas for vehicle trips; and that a Planning Commission staff report that stated that transportation impacts for “this project” were mitigated previously referred to a different project. UDC, 106 Wn. App at 689-692. Of importance to the Court in holding that the traffic impacts were not duplicative was the fact that all impacts were not mitigated at earlier stages, the parties had agreed to a staged process subject to-then existing requirements, and thus the impacts could be recalculated later under more-stringent regulations. UDC, 106 Wn. App at 693. In fact, vehicle trips expected to be generated by the development of Mill Creek 23 had not previously been the subject of a mitigation requirement until impact fees were assessed. The facts here are far different that those in UDC. Unlike in UDC, in this case, the transportation and park mitigation under SEPA was intended to address all such impacts for full build out of the Redmond Town Center. And importantly, Appellants were required to, and in fact paid in advance for such impacts. UDC does not support the City’s claim that it is impossible to double dip when the system improvements listed in the capital facilities plan at the time each of the two fees were imposed are entirely different. B. The Redmond Town Center Master Plan included residential development on Parcel 5. The following passage from the 1995 Master Plan appears in City’s Exhibit 21 at page 2879 of the supplemental master record: The revised Master Plan (Exhibit A.2) reflects the eight development parcels, streets and public access open spaces proposed for the site. The Master plan Design Overlay (Exhibit A.3) indicates proposed development parcel land uses, required ---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 27 APPELLANT'S RESPONSE BRIEF - 4 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax building frontages, and significant plazas. This overlay gives more specific information about intended project uses while allowing the applicant flexibility in developing future phases. . . . . The above Exhibits A.2 and A.3 represent “the master plan”. The master plan is further supplemented with a phasing plan, walkway linkage system plan, open space plan, and illustrative site plan. [Emphasis added]. Master Plan Exhibits A.2 and A.3 appear in City’s Exhibit 21 at pages 2881 and 2882 of the supplemental master record. Reproductions of Exhibit A.2 showing the development parcels and open space, and Exhibit A.3 that identifies proposed development parcel land uses have been pasted in below. ---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 27 APPELLANT'S RESPONSE BRIEF - 5 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax The Redmond Town Center Apartments project is being constructed on Parcel 5. “Housing” with reference to the “Residential Density Overlay” is clearly shown on Redmond Town Center Master Plan Exhibit A.3 as a land use planned to be part of the development anticipated on parcels 2, 3 and 5. Given these facts drawn from the City’s exhibits, it is perplexing that the City makes the following assertions at page 6 of its “Planning Department Report to Hearing Examiner”: While residential is discussed, mildly analyzed and included as a permitted use for the overall zone in addition to 23 other uses, it was not a component of the Redmond Town Center private Master Plan Development or any of its proposed phases. . . . The Master Plan was originally applied for as an indoor traditional mall with major anchor retailors and transitioned into an open-air shopping center. Neither version of the private proposal included a residential aspect. The area of the currently entitled mixed-use residential building is called out specifically, not theoretically, as a parking lot. . . . Residential was not a studied or discussed component of the Master Plan, nor was this parcel site even conceptually shown for development. ---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 27 APPELLANT'S RESPONSE BRIEF - 6 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Supplemental master record, page 3104. Clearly, residential development was anticipated to be a part of the Redmond Town Center Development. Parcel 5, the site of the Redmond Town Center Apartments project, was specifically identified in the Master Plan as a site of anticipated residential mixed-use development. C. The Master Plan is intended to encourage the type of residential mixed-use development that will be constructed by the Redmond Town Center Apartments project. The intent of the revised Master Plan is explained at page 3 of the Master Plan: The Conceptual Master Plan for Redmond Town Center provides both phasing and land-use flexibility. Phasing is essential to the economic feasibility of the project, and the proposed master plan facilitates fine tuning to adjust to market shifts in the future by creating eight developable city blocks whose dimensions are adaptable to the wide variety of potential uses for which the property is zoned: retail, office, hotel, residential and entertainment. . . . . The site plan encourages residential development, especially in the Mixed-Use Design Area. Guidelines favor ground-floor retail use in such development, and mandate it in all cases where two-story frontage is required. Residential uses must be developed in accordance with RCDG section 20C.10.230(17) (Residential Development in City Center Design Areas). Supplemental master record, page 1647. The Redmond Town Center Apartments project is located in the Mixed-Use Design Area. Retail use is included on the ground floor. Design requirements for approval of the project include Redmond’s Downtown Design Guidelines for residential mixed-use development. The change in concept represented by the revised Master Plan is addressed in the introduction to the “Master Plan Guidelines and Standards” section of the Master Plan that appears at page 2832 of the master supplemental record, City Exhibit 21: The following are proposed guidelines and standards applicable to the Redmond Town Center Master Plan. The Master Plan differs from the original Master Plan in that this document incorporates many goals and policies from the Redmond Community Development Guide that relate specifically to the Mixed Use/Shopping Center Design Area. This change was made based on recommendations by representatives of the Redmond Planning ---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 27 APPELLANT'S RESPONSE BRIEF - 7 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Department that more distinction be provided between the documents and to reduce redundancy among policies. To assist the reader, the proposed amendments are presented in “legislative” format. The text shows proposed additions to the original Master Plan as underlined (additions) and deletions from the original Master Plan as strike-throughs (deletions). Rationale: These policies reflect the specificity that is more appropriate in the Master Plan. The changes are consistent with the mixed-use nature of the revised proposal and the anticipated size of the core component. The minimum size provides the City with the assurance of a vibrant retail center, while allowing the project proponent to attract additional uses to meet market conditions. The term "regional shopping center typically refers to an enclosed mall with specialty retail stores and major department stores. The term mixed-use center is associated with a project that has a variety of uses including: retail, office, hotel, residential and entertainment components. The change in terminology represents a shift in retailing format of the proposed Master Plan. The policy has been revised to more clearly describe the 600,000-745,000 square foot core component of the project that will be developed and be consistent with the original intent of the policy. Other land uses developed on the site will complement the core component of the project. 4. Encourage residential development on the mixed-use center site, housing density area is in addition to the maximum commercial building area allowed. Rationale: This guideline provides greater specificity regarding proposed developed area allocation and encourages housing as an overlay. ---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 27 APPELLANT'S RESPONSE BRIEF - 8 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax D. Impacts of residential-mixed use development on Parcel 5 were included in the scope of development impacts mitigated under SEPA. In 1997, the City issued an EIS Addendum in connection with a proposal by the Redmond Town Center owner to modify regulations and conditions of approval governing development of Redmond Town Center. The proposed modifications included a zoning amendment to “establish a height limit range for residential uses in the Mixed-Use Center Design Area”. The City Council established the proposed height limit for “Residential in any area -60 feet” through adoption of Ordinance No. 1992 on July 21, 1998. Appellants’ Exhibit 42 In 2001, the Redmond Technical Committee provided a report to the Planning Commission (Appellants’ Exhibit 39) that included a summary of plans for development of remaining undeveloped Redmond Town Center parcels, including a plan for residential mixed- use development of the eastern portion of Parcel 5B which is the Redmond Town Center Apartments development site: The Macerich Company plans to add a two-story department store with 110,000 to approximately 120,000 square feet of gross leasable area on the west half of parcel 5B. A retail/commercial use of this size is currently allowed under the existing 1.49 million square feet floor area limit. The east half of this parcel is envisioned by the owner to eventually include mid-rise residential use with ground floor commercial. Technical Committee Report, page 3. [Emphasis added]. Residential uses within the sub-district (Town Center) are not bound by the commercial floor area limit. In addition to the potential 250 unit mixed-use residential structure on the east half of parcel 5B, existing regulations allow several hundred more residential units, which could be constructed on vacant parcels or over the existing surface parking lots within Town Center. Residential additions would be bound by height limits and design standards, as in other districts. Technical Committee Report, page 4. The City’s traffic consultant prepared an updated trip generation analysis (See Exhibit F) indicating that the site has produced far less peak hour traffic than predicted, and that the addition of a hotel, plus already allowed retail and residential, will not increase peak trips above what has already been prepared for. [Emphasis added]. Technical Committee Report, page 7 ---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 27 APPELLANT'S RESPONSE BRIEF - 9 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Exhibit F to the Technical Committee report (Appellants’ Exhibit 14) contained the trip generation analysis referenced in the Technical Committee report and the City’s SEPA Determination of Nonsignficance and Notice of Adoption of Existing Environmental Document. Among the multiple SEPA documents adopted as part of the analysis, the Redmond Town Center Draft and Final EIS was identified as the basis for identification and analysis of development impacts and mitigation. This EIS included analysis of the alternative of zoning the Redmond Town Center Site for multi-family development anticipated to include 2,183 housing units. Appellants’ Exhibit 1 at page 5-7, supplemental master record page 0030. In analyzing the impacts of future phases of development anticipated at Redmond Town Center the City specifically included anticipated residential development, including residential development on Parcel 5, as described in the traffic impact analysis report attached to the DNS under the heading “PROPOSED NEXT PHASE OF DEVELOPMENT”. This section of the traffic analysis is reproduced below. ---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 27 APPELLANT'S RESPONSE BRIEF - 10 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax The specific traffic impact expected to result from the additional 500 residential units was identified in Table 2 of the analysis as reproduced below. ---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 27 APPELLANT'S RESPONSE BRIEF - 11 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax The City specifically concluded that the additional development that was anticipated under the proposed amendment to the commercial development limit, including anticipated residential development, would be adequately mitigated by conditions already imposed on the Redmond Town Center Development by issuing the DNS and Notice of Adoption. This environmental determination has been shown to be sound by the detailed traffic analysis performed on the Redmond Town Center Apartments project dated July 11, 2016 that concludes “the proposed Redmond Town Center Apartments . . . are not expected to result in any significant adverse traffic operations impacts or increase in average vehicle delay at any of the signalized or unsignalized study intersections per the detailed traffic operational impact analysis”. Appellants’ Exhibit 45 at page 11, supplemental master record, page 1116. Anticipated development of Parcel 5, including residential development, was identified in multiple reports. In the report of actual traffic counts at Redmond Town Center conducted in September, 2000 attached to the traffic analysis accompanying the DNS and Notice of Adoption as Attachment F, Parcel 5B is identified on the Redmond Town Center Site Plan as a “Future Development Parcel”. Appellants’ Exhibit 45 at page 11, supplemental master record page 1116. In the memorandum from Gary Lee, Senior Planner, to the Planning Commission dated September 5, 2001, at page 3 Mr. Lee analyzes potential future residential floor area development at Redmond Town Center, specifically identifying the “East half of Parcel 5 B” as one of five sites for future residential development. (Appellants’ Exhibit 9, supplemental master record page 00370). In section 8 of his memorandum, Mr. Lee noted that the proposed ---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 27 APPELLANT'S RESPONSE BRIEF - 12 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax amendment increasing the maximum limit on commercial development was intended in part to “accommodate small-scale retail associated with mixed-residential infill development”. In its Planning Department Report to Hearing Examiner, the City asserts as follows: The Redmond Town Center analyzed [sic] and was reviewed only for the specific uses studied and shown within their two Addendums and Master Plan entitlement document. Residential was not a studied or discussed component of the master Plan, nor was this parcel site even conceptually shown for development. . . . The project applicant of the 1996 master plan did not look into the zone as a whole or all uses as part of the submitted EIS Addendums, Traffic Mitigation Agreement or any of the additional studies provide [sic] and reviewed. Future improvements for both roads and recreation/open space never considered [sic] residential as a use for the development. Planning Department Report at page 6, supplemental master record, page 3104. These assertions are not consistent with the facts as established by the record in this appeal. E. Redevelopment of previously developed Redmond Town Center Parcels is not within the scope of the exemption from impact fees applicable to Redmond Town Center Apartments. The City contends in its Planning Department Report to Hearing Examiner that Redmond Town Center Apartments should pay park and transportation impact fees because other “new development” has been required to do so. Planning Department Report, page 8, at page 3106. However, the cited examples of BJ’s Restaurant and the Archer Hotel are not applicable because each of these projects constitutes redevelopment of a previously developed parcel within Redmond Town Center. BJ’s restaurant has been constructed on the parcel originally developed as the Desert Fire restaurant. The Archer Hotel is being developed on the parcel originally developed as the Claim Jumper Restaurant. These redevelopment projects are governed by RMC 3.10.130 Credit for Existing Development – Expansion. Whenever the alteration, reconstruction, remodeling, or replacement of existing buildings or structures results in additional gross floor area or additional dwelling units, the applicant shall receive a credit for the existing buildings or structures and an impact fee shall be paid only for the additional gross floor area or additional dwelling units. The impact fee shall be based upon the net increase in the number of units of development or portion thereof associated with the additional gross floor area or additional dwelling unit over the number of units associated with the existing ---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 27 APPELLANT'S RESPONSE BRIEF - 13 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax gross floor area or dwelling units. The fee shall be calculated using the fee schedules set forth in RMC 3.10.080 and 3.10.100 unless an independent fee calculation study is submitted and approved as provided in RMC 3.10.120. Redmond Town Center Apartments is being development on undeveloped Parcel 5B, a development parcel identified by the RTC Binding Site Plan, as amended (Appellants’ Exhibit 63 at page 22 of the exhibit PDF). Appellants have not been involved with any proposal to exempt new or expanded development on previously developed Redmond Town Center Parcels within the exemption provided for by RCW 82.02.100. These projects present a distinct circumstance that is not involved in this appeal. F. Redmond Town Center does not exceed the maximum allowed commercial building area approved by the City through environmental review. The zoning code limitation imposed on gross leasable area of development in Redmond Town Center regulates only commercial development. Ordinance No. 2114, Attachment 22 to Planning Department Report to Hearing Examiner. Residential development is governed by zoning limitations, but is not affected by the commercial limitation. RZC 21.10.050 C. The amount of residential development permitted, and the amount of commercial development allowed are calculated independently, neither one affecting the other. The City contends in the Planning Department Report to Hearing Examiner at page 32 of the report that “RTC Apartment is a new development because the RTC site exceeds the maximum allowed mixed-use building square footage cap in the Master Plan”. This is incorrect. The residential component of Redmond Town Center Apartments is not subject to the limitation on commercial uses. The ground floor retail uses included in the project—approximately 9,000 SF of GLA—are subject to the limitation. The additional retail space that will be added by the Redmond Town Center Apartments project has been approved by the City through issuance of a building permit. It will not be in excess of the commercial limitation. The City contention may be caused by the fact that the total square feet of development identified in the report is in error. A contributing factor in the error may be that the Bartell Drugs building identified as site 17 on Attachment 28 to the report is not a part of Redmond Town Center. The property manager for Redmond Town Center ---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 27 APPELLANT'S RESPONSE BRIEF - 14 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax will testify at the hearing as to the correct total gross leasable area of commercial development currently constructed, and the amount proposed for construction at Redmond Town Center. The small amount of retail ground floor space included in the Redmond Town Center Apartments project does not create development impact that is in excess of the scope of impacts of Redmond Town Center development mitigated under SEPA. G. The Traffic Mitigation Agreement Did Not Expire The City contends that the Traffic Mitigation Agreement (“Agreement”) expired and that the RTC Apartments development must pay all appropriate impact fees for transportation. Neither claim is supportable. In the first place, there is no language or terms in the Agreement that even remotely suggest that the Agreement expired in 2010 or at any other time. Nor is there a termination clause in the Agreement that supports a claim that the Agreement has terminated. If anything, paragraph 7 of the Agreement at page 2 confirms that the Agreement is perpetual by including a term that the “obligations of TCA stated herein shall constitute covenants running with the TCA Property for the benefit of the City…” and that “[s]uch obligations shall be binding upon TCA and its successors and assigns.” Thus, the Agreement remains in effect. The second claim is equally unavailing. Nowhere does the Agreement provide that the parties acknowledge that the City will not recognize fulfillment of the listed requirements as satisfying required mitigation for any build out after 2010 or that the RTC Apartment development must pay all appropriate impact fees for transportation. Instead, the third recital on page 1 of the Agreement acknowledges that SEPA was used to identify transportation system improvements that can be made to mitigate the impacts of the Redmond Town Center, and the third recital on page 1 confirms that the transportation system mitigation requirements were imposed by the City to mitigate impacts associated with full build out of Redmond Town Center. Thus, if anything, these recitals confirm the parties’ intent that the transportation mitigation was intended to fully mitigate transportation impacts from full build out the Redmond Town Center development, which could include the RTC Apartments property and future development. ---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 27 APPELLANT'S RESPONSE BRIEF - 15 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Further, the language in the fourth recital on page 2—that “[i]t is also intended that fulfillment by TCA of the requirements of this Agreemenet shall constitute complete satisfaction of all City requirements upon Redmond Town Center, including all future phases of Redmond Town Center through the year 2010 consistent with the Redmond Town Center Plan and approval for File No. 95-014, insofar as such requirements are related to mitigation of impacts upon transportation facilities”—does not mean that RTC Apartments is not entitled to an exemption under RCW 82.02.100(1) and RCW 82.02.060(1)(a) if it can demonstrate that there are no new or additional traffic impacts that were not addressed and mitigated under SEPA for development of the Redmond Town Center. In this case there were not, as will be demonstrative by the vehicle trips generated by the RTC Apartments, which are well within the limit for which mitigation was imposed for the Redmond Town Center. H. The Impact Fees Should Be Eliminated Based on Unusual Circumstances Pursuant to RMC 3.10.130(B), the Administrator may adjust the required impact fees to ameliorate the unfairness of the fee if the person required to pay the fee demonstrates that unusual circumstances make the standard impact fee applied to the development unfair or unjust. In this case, the Administrator should exercise its discretion to eliminate the traffic and park impact fees because of unusual circumstances that make imposition of the fee unfair and unjust. These circumstances include the following: • The size, scope and uniqueness of the Redmond Town Center • Its importance to the City • Its development over time • The substantial mitigation provided for transportation and park impacts. • The requirement to provide mitigation up front as mitigation for full build-out • The fact that the mitigation paid continues to adequately address impacts, including for the RTC Apartments. ---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 27 APPELLANT'S RESPONSE BRIEF - 16 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Additional factors supporting elimination of the impact fees for transportation and parks include the payment of duplicative fees for the same impact and lack of fairness and proportionality in imposing such fees. I. Redmond Town Center Is Entitled to an Impact Fee Credit Redmond Town Center requests a credit to the impact fees imposed on the RTC Apartments pursuant to RCW 82.02.060(4) and RMC 3.10.130. In this case, such a credit is warranted given that the value of land devoted to public open space as identified on the Capital Faclities element of the City Parks and Recreation Plan, and for the cost of improvements required to be constructed in public open space and the cost of required transportation improvements is far in exess of the amount of transportation and park impact fees imposed on the RTC Apartments Project. The City first contends that no credits are allowed since the City did not condition approval of the RTC Ampartments upon construction of any improvements. However, the basis for Redmond Town Center’s request for credits is based on Redmond Town Center’s construction of off-site transportation improvements and conveyance of land for parks. Thus, RTC Apartments and not Redmond Town Center is entitled to any impact fee credit for such improvements, which were a condition of approval of the Master Plan, of which the RTC Apartments are a part. The City next contends that even if a credit would be available under these provisions, the credit was already allocated to the original developer. This is irrelevant to RTC Apartments’ entitlement to a credit for the Redmond Town Center’s construction of improvements For this credit, the total amount of mitigation provided by Redmond Town Center, in whatever proportion allocated for the value of impact fees, construction of improvements, or conveyance of open space, is the relevant value in determining the amount of the credit due the RTC Apartments. Because the cost of such improvements is far in exess of the amount of transportation and park impact fees imposed on the RTC Apartments Project, RTC Apartments is entitled to a credit against its payment of impact fees. ---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 27 APPELLANT'S RESPONSE BRIEF - 17 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax Dated this 20th day of February, 2018. Davis Wright Tremaine LLP Attorneys for Appellants By Larry C. Martin, WSBA #8499 Charles E. Maduell, WSBA #15491 ---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 27 APPELLANT'S RESPONSE BRIEF - 18 4818-1104-1886v.1 0098779-000002 Davis Wright Tremaine LLP LAW OFFICES 777 108th Avenue NE, Suite 2300 Bellevue, WA 98004-5149 [PHONE REDACTED] main · [PHONE REDACTED] fax CERTIFICATE OF SERVICE I hereby certify that I caused the document to which this certificate is attached to be delivered to the following as indicated: Cheryl D. Xanthos, CMC Deputy City Clerk City of Redmond MS 3NFN 15670 NE 85th St. Redmond, WA 98052 (425) 556-2191 Messenger Via Electronic Filing Federal Express Facsimile Email [EMAIL REDACTED] DATED and signed this 20th day of February, 2018 at Bellevue, Washington. Claire D. Tollfeldt