Full Text
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 BEFORE THE HEARING EXAMINER FOR THE CITY OF REDMOND In the Matter of the Appeal of WPDC Cleveland LLC of approved Building Permit authorizing alterations to the structure at 16390 Cleveland Street, Redmond, issued February 17, 2017 BLDG-2016-09802 BPLN-2016-02092 RESPONDENT ANDORRA VENTURES LLC' S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY JUDGMENT I. RELIEF REQUESTED Andorra Ventures LLC (referred herein as "Andorra") respectfully requests the Hearing Examiner to dismiss the Motion for Summary Judgment filed by Appellant WPDC Cleveland LLC ("Appellant"). The appeal pertains to the City of Redmond's issuance of Building Permit BLDG-20 16-09802 ("Building Permit") and BPLN -2016-02092 (''Change of Occupancy Permit") (the Building Permit and Change of Occupancy Permit are referred to collectively as "Permits"). Appellant asks the Examiner for an order and relief that exceeds the Examiner's jurisdiction and the scope of permits under review. Further, Appellant has made it abundantly clear it opposes use of the site for retail marijuana and that such opposition is the primary motivator for its appeal. Appellant has been highly vocal in its opposition at every turn, taking full advantage of any opportunity for comment at great length. While Andorra respects Appellant's views regarding retail marijuana, such issues respectfully are not within the Examiner's jurisdiction under this pending appeal. RESPONDENTANDORRA VENTURES LLC'S RESPONSE TO APPELLANT'S MOTION FORSUA1A1ARY JUDGMENT PAUl: 1 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 I Fax: (425) 451 2818 ---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 II. STATEMENT OF RESPONSIVE FACTS AND CIRCUMSTANCES Consistent with its email correspondence addressing the scope of the project to the Hearing Examiner, Andorra has submitted revised plans that reduce the scope of the original project so as to support its prior withdrawal of the site entitlement permit. See Declaration of Kolouskova, attachments; Declaration ofJozanne Moe (attached to City's response). 1 As has already been submitted to the Hearing Examiner, Andorra withdrew its site entitlement permit when it became clear that such broader scope of improvements would involve more delay than Andorra could accommodate. Declaration of Kolouskova, attachments. Consequently, Andorra also submitted a formal revision form and plans that revise the building permit consistent with the decision not to pursue a site entitlement permit. Declaration of Kolouskova, attachments. That form and revisions are attached to the City's declaration of Jozanne Moe; in order to limit the volume of material submitted under Appellant's motion, Andorra respectfully relies on that declaration for brevity. While Appellant would cast a derogatory light on Andorra's project and the City's permit processing, the bottom line is, there is simply nothing nefarious about Andorra's project. Andorra is entitled to obtain its building permit and change of occupancy for general retail: a smart business decision in the current political climate under the new federal administration and in light of the Appellant's vehement objections. As Andorra explained in its motion, if Andorra decides to lease space to Origins or another marijuana retailer, that outfit will be able to apply for a marijuana license, and such considerations (including change 1 Andorra respectfully incorporates herein the facts set forth in its Dispositive Motion and Declaration of Miller. Andorra further understands the City is separately responding to Appellant's Motion for Summary Judgment and joins in the City's statement of facts and declarations for brevity. RESPONDENT ANDORRA I 'ENTURES LLC 'S RESPONSE TO APPELLANT"S MOTION FOR SUMMARYJUDGA!ENT PAuJ:2 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 1120 I S.E. gth St., Suite 120 Bellevue, Washington 98004 Te1:(425)4512812/Fax:(425)4512818 ---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 of use) can be addressed at that time, including full public comment and appeal opportunities for Appellant. But Andorra's decision at this juncture to build out a retail-neutral space is simply that. III. LEGAL AUTHORITY AND ARGUMENT A. The Hearing Examiner Has No Authority to Issue a Stop Work Order or Administrative Interpretation. The issues involved in Appellant's motion exceed the scope of the permits under appeal. Appellant alleges improper piecemealing of permits, asking that the Examiner issue an administrative interpretation that a Site Entitlement Permit is required and a stop work order. Fatal to its motion, Appellant fails to provide any authority for the Examiner to take the steps Appellant demands. Appellant's motion drastically exceeds the scope of the Examiner's review regarding the permits at issue. Appellant's motion revolves around the very jurisdictional question which Andorra argued under its own dispositive motion: as Andorra explained therein, there are no pending applications, let alone permits or approvals, for site entitlement, change of use or business license for retail marijuana. See Andorra Dispositive Motion. Appellant would have the Examiner step into the shoes of the City Administrator, Planning Director, and Code Compliance Officer, and even override her scope of authority granted by the City Council, in order to direct the City and Andorra to apply for permits that are not subject to this appeal and to issue stop work orders even though there is no enforcement action pending or even warranted. Andorra respectfully asks the Examiner to decline such an improper invitation. RESPONDENT ANDORRA VENTURES LLC 'S RESPONSE TO APPELLANT'S MOT/ON FORSUA!MARY JUDGMENT PAuJ:3 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. 8 1h St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 I Fax: (425) 451 2818 ---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 A Hearing Examiner may "exercise only those powers conferred either expressly or by necessary implication." Chaussee v. Snohomish County Council, 38 Wn. App. 630, 636, 689 P.2d 1084 (1984) (citing State v. Munson, 23 Wn. App. 522,524,597 P.2d 440 (1979)). The Examiner does not have the power to adjudicate in any equitable capacity. Chaussee, 38 Wn. App. at 638. The Examiner's authority is strictly limited to only that which is expressly given in the local regulations. In re King County Hearing Examiner, 135 Wn. App. 312, 319-320, 144 P.3d 345 (2006). Courts strictly read ordinances to empower a Hearing Examiner with only the review authority expressly granted by the City or County legislative body in the given ordinances. RMC 4.28.020 grants the Examiner the power to conduct hearings as described in RZC Chapter 21. 76. The appeal issues the Examiner may consider must address "the manner in which the decision fails to satisfy the applicable decision criteria." RZC 21. 76.060.1.2 (emphasis added). The Examiner has no authority to hear issues that are beyond the scope of decision(s) issued by the City, doing so would constitute an administrative interpretation or code enforcement action - both actions addressed under Redmond Code and delegated to other City officials. Administrative interpretations fall within the purview of the City Administrator. RZC 21.76.100(D). Code enforcement actions fall within the purview of the Code Compliance Officer. RZC 21.76.100(8); RMZ 14.050; 1.14.140(a). In making its emphatic arguments, Appellant misses the fundamental requirement to identify jurisdiction and authority for the Hearing Examiner to act. Contrary to Appellant's assumption, the City Council simply has not authorized the Hearing Examiner to grant Appellant's desired relief, namely to issue a stop work order and require Andorra to obtain a RESPONDENT ANDORRA l'ENTURES LLC'S RESPONSE TO APPELLANT'S MOTION FORSUMAIARY JUDGMENT PAw:4 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 1120 I S.E. 81h St., Suite 120 Bellevue, Washington 98004 Tei:(425)4512812/Fax:(425)4512818 ---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 Site Entitlement Permit. Appellant's Motion for Summary Judgment, page 39. Appellant asks the Examiner to do exactly what Courts have rejected elsewhere: to ignore the strict limits of her review authority and instead, improperly invite the Examiner to get creative and order the City to require a Site Entitlement Permit and consequently stop work allowed by the approved Permits. In re King County Hearing Examiner, 135 Wn. App. 312, 319-320. 144 P.3d 345 (2006). In King County, the Court rejected exactly the creative approach to jurisdiction which Appellant improperly proposes here: that the Examiner direct staff to undertake further administrative actions without express authority supporting such a directive. King County Hearing Examiner, 135 Wn. App. at 321. Apart from the foregoing law, there is also no substance behind Appellant's allegation of improper piecemealing. Andorra's decision to obtain a building permit and to edit the scope of that permit so as not to have to undergo the more extensive Site Entitlement permit process, is strictly within its rights under code. As Andorra explained in its Dispositive Motion, this is not a timing maneuver on the part of Andorra: Andorra made a sound business decision to withdraw the site entitlement permit and proposal for mezzanine; and the retail marijuana tenant would have to apply for a retail marijuana business license if and when Andorra ever enters into a lease with Origins Cannabis or any other tenant. Andorra, not the Appellant, has discretion as the property owner to determine how it wishes to develop, build and use its own property. There is nothing nefarious about Andorra's permit processes -to the contrary, Andorra has undertaken extraordinary efforts to comply with the City's permit processing procedures and demands. RESPONDENT ANDORRA VENTURES LLC'S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY JUDGMENT PA!iF 5 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 I Fax: (425) 45 I 2818 ---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 Appellant invents a somewhat paranoid scenario whereby it implies that Andorra or a potential tenant is trying engage in retail marijuana sales without complying with Redmond Code and business license requirements. There is absolutely no evidence to this effect. Without any authority, Appellant would have the City force Andorra's uses and permitting into an exclusive box of only retail marijuana sales and preclude use of the entire building unless/until retail marijuana is permitted. Taking such a myopic view of retail at this site not only would be poor planning for the property, but would be a risky strategy in light of how federal regulation regarding marijuana may evolve under the new presidential administration. Andorra clearly explained the process it has followed for using the building not only or necessarily for retain marijuana sales but also for other general retail. Andorra Motion to Dismiss, pages 2-3. Further, as discussed in Andorra's motion and to the extent necessary, can be elaborated at the hearing, Andorra is not going to be an applicant for retail marijuana licensing. Andorra's decision to maintain flexibility for retail uses of its property through available permitting is, quite simply, both appropriate and smart decision making. Finally, even if it were within the Examiner's purview to rule on whether a site entitlement permit is necessary for improvements that Andorra is not proposing, Appellant has not demonstrated that the improvements authorized under the revised permits are impossible. Such demonstration would be a matter for open record hearing as discussed below. Andorra respectfully submits that the evidence to be submitted as part of the City's administrative record and in response to Appellant's exhibits (list due May 17; documents RESPONDENT ANDORRA VENTURES LLC 'S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY JUDGMENT PAc;F6 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. grh St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 I Fax: (425) 451 2818 ---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 due May 24) will demonstrate that the improvements under the permit are feasible in and of themselves. Andorra respectfully requests that the Hearing Examiner dismiss Appellant's summary judgment issue A and aspects of B-E for exceeding the Examiner's jurisdiction. B. Redmond Code Does Not Provide a Means to Circumvent the Open Record Hearing Process by Virtue of Summary Judgment Relying on an Expedited Motion Schedule. Appellant's attempt to end-run the open record hearing process through voluminous declarations during a one week dispositive motion process is not allowed by Redmond Municipal and Zoning Codes; the Examiner cannot foreshorten the open record hearing process under the guise of an expedited summary judgment motion. Redmond Zoning Code requires the Examiner to conduct an open record hearing on any appeal which she has jurisdiction to hear: "The Hearing Examiner shall conduct an open record hearing on a Type I or Type II appeal." RZC 21.76.060.1.3 (emphasis added). Further, the Examiner "shall create a complete record of the public hearing " Only after the Examiner closes the record can the Examiner then issue a decision. RZC 21.76.060.1.4. Redmond Zoning Code does not give the examiner authority to make factual findings without first holding an open record hearing. The Examiner does not have the same powers as a court; the Examiner's powers are limited to those which are expressly set forth in Redmond Codes. King County Hearing Examiner, 135 Wn. App. at 319. As a result, the Examiner cannot automatically assume the ability to foreshorten review of an appeal issue over which she has jurisdiction (irrespective RESPONDENT ANDORRA VENTURES LLC 'S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY.JUDGAfENT PAGF 7 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 1120 I S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 I Fax: (425) 451 2818 ---PAGE BREAK--- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of which party might ask), thereby restricting the record which may be later subject to closed-record review by the City Council or a judge. The Examiner has set up the dispositive motion process based on a clear understanding of this jurisdiction. Rather than provide a summary judgment schedule consistent with Washington State Superior Court Civil Rule 56, the Examiner set up an abbreviated motion schedule for dispositive motions that she can decide under the auspices of Redmond Zoning Code: i.e. whether there are procedural or jurisdictional defects or considerations that would bar the Examiner from hearing an appeal or appeal issue entirely. The Examiner's schedule is consistent with Redmond Code: it only provides time for the Examiner to determine her jurisdiction to hear an appeal overall or a particular appeal issue, but not enough time for the Examiner to adjudicate issues on their merits. In contrast this jurisdictional motion process, if the examiner wanted to provide a summary judgment schedule that would accommodate such a presumptive motion as that filed by Appellant, the Examiner would have given a 28-day timeline for summary judgment motions consistent with CR 56 (and which courts often extend even further for particularly motions such that presented by Appellant). Instead, the Examiner provided seven days for a response and only three days for her to make a decision on any motions. The Redmond Code's instructions to hold an open record hearing and the Examiner's scheduling to provide a short motion schedule to address jurisdictional questions is also logical since the open record hearing process is already a much more expedited process than a trial in superior court. RESPONDENT ANDORRA VENTURES LLC 'S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY JUDGA!ENT PA