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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 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-20 16-09802 BPLN-2016-02092 RESPONDENT ANDORRA VENTURES LLC'S DISPOSITIVE MOTION TO DISMISS ERRORS OF PROCEDURE, FACT AND LAW NOS. 1 THROUGH 6, 8, 9, AND 13 I. RELIEF REQUESTED Pursuant to the Prehearing Order in the above-captioned matter, Andorra Ventures LLC (referred herein as "Andorra") respectfully moves the Hearing Examiner to dismiss specific issues raised by Appellant WPDC Cleveland LLC ("Appellant") in its appeal ("Appeal") ofthe City's issuance of Building Permit BLDG-2016-09802 ("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's Errors of Procedure, Fact and Law ("Errors") 1 through 6, 8, 9, and 13 improperly raise issues that exceed the scope of the Permits issued by the City that are the subject ofthe pending Appeal. Therefore, they are beyond the scope of the Appeal and the authority of the Hearing Examiner, and should be dismissed.' 1 While Andorra respectfully submits that the remaining issues will not have substantive merit, those raise questions of fact regarding change of occupancy and nonconforming use issues, which Andorra recognizes are better suited for the Examiner's determination on the merits. RESPONDENT ANDORRA VENTURES HC'S DISPOSITIVE ,'>fOTION TO DIS.Iv!ISS ERRORS OF PROCEDURE. FACT AND LAW NOS. I THROUGH 6. 8. 9, AND 13 PAm: I JOHNS MONROE M ITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. 81h St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / 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 FACTS AND PROCEDURAL BACKGROUND The facts contained herein are specific only to this Motion to Dismiss Errors of Procedure, Fact and Law Nos. 1 through 6, 8, 9, and 13. Other facts, though pertinent and relevant to the overall matter, will be provided as part of the administrative record and subsequent briefings and/or are unrelated to the arguments presented herein, and thus are excluded from this brief. The building for which the Permits were issued is located at 16390 Cleveland Street, Redmond, Washington ("Building"). The Building was constructed in 1956. It is currently designated as "warehouse", and is a legal nonconforming use under RZC 21.76.100.F. Andorra purchased the Building in November 2016, at which time it was occupied by Raparatur LLC, under a lease whose term ran from April 16, 2012, through May 15, 2017. See Declaration of Sean Miller. Andorra terminated the lease early in February 15, 2017 when it began its process for making tenant improvements. On December 9, 2016, Andorra submitted an application for tenant improvements and change of occupancy to the Building. The change of occupancy permit involved a change from the current warehouse to retail pursuant to IBC Section 1 05.1, as adopted in RMC Chapter 15.08, Building Code and RZC 21.76.020.H.2. Most importantly, Andorra did not apply for a change in use to marijuana retail sales. Although Andorra was forthright in its discussions with City staff that it ultimately intends to use a portion of the Building for retail marijuana sales (along with separate spaces for other general retailers), such change in use is triggered by a separate business license application which would be submitted by a tenant seeking to establish a retail marijuana business at the location. Andorra will not be RESPONDENTANDORRA VENTURES LLC'SD!SPOS!TIVE MOTION TO D!SAI!SS ERRORS OF PROCEDURE, FACT AND LAW NOS. 1 THROUGH 6. 8, 9. AND 13 PAu/:'2 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 1120 I S. E. 81h 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 applying for a retail marijuana license, and no such license is part of the Permits or this Appeal.2 On January 25, 2017, City issued the Permits.J On March 2, 2017, Appellant filed its appeal of the Permits. At that point, the City recognized that a portion of the tenant improvements contemplated by Andorra - namely the addition of a mezzanine for office space- required a site entitlement permit. Andorra agreed that, if it desired to do that work, it would submit a separate site entitlement application. On March 23, 2017, Andorra did submit a site entitlement application, but due to delays resulting from the site entitlement application process, on April12, 2017, Andorra withdrew its site entitlement application. In their appeal, Appellants raise 13 Errors. The vast majority (all except Errors 7, 10, 11 and 12) are beyond the scope of this Appeal because they pertain to business or site entitlement permits for which no application is pending. To be clear, this is not a timing maneuver on the part of Andorra: Andorra made a sound business decision that the site entitlement permit had become too cumbersome and, as was its absolute right, determined not pursue that permit to expand the mezzanine and withdrew that application; and Andorra cannot apply for a retail marijuana business license - only the retail marijuana tenant may apply for such a license. Thus, the only issues subject to Appeal are those 2 Permits subject to appeal were attached to the Appellant's appeal statement. 3 Although Andorra Ventures LLC was the applicant, the City erroneously issued the Permits in the name of Origin's, the anticipated tenant for the retail marijuana sales portion of the building. It is important to note that there is as yet no lease to or business permit application by Origins; and other tenants besides Origins will occupy portions of the building. RESPONDENT ANDORRA VENTURES LLC 'S DISPOSITIVE MOTION TO DISAf!SS ERRORS OF PROCEDURE. FACT AND LAW NOS. I THROUGH 6, 8, 9, AND 13 PAUF 3 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW 11201 S.E. 8 111 St., Suite 120 Bellevue, Washington 98004 Tel: (425)4512812/Fax: (425)4512818 ---PAGE BREAK--- 1 pertaining to the Building Permit for interior ground floor improvements and the change of 2 occupancy from warehouse to retail. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 III. ISSUES A. Should Errors 1 2, 4, and 6 of the appeal be dismissed because the issues concern code requirements for site entitlement permits for which no application is pending? B. Should Errors 3 through 6, 8, 9 and 13 of the appeal be dismissed because the issues concern code requirements for change of use resulting from a business license for which no application is pending? IV. EVIDENCE RELIED UPON Declaration of Sean Miller in Support of Respondent Andorra Ventures Llc' s Dispositive Motion To Dismiss Errors Of Procedure, Fact And Law Nos. 1 Through 6, 8, 9, And 13. A. V. LEGAL AUTHORITY AND ARGUMENT The Hearing Examiner Has No Authority to Hear Issues Beyond the Scope of the Appealed Permits. The majority of Errors alleged by Appellant are beyond the scope of the Permits, and thus beyond the scope of this Appeal and, respectfully, the authority and jurisdiction of this Hearing Examiner. A hearing examiner may "'exercise only those powers conferred either 21 expressly or by necessary implication."4 The Examiner does not have the power to 22 adjudicate in any equitable capacity.5 The Examiner's authority is strictly limited to that 23 24 25 4Chaussee v. Snohomish County Council, 38 Wn. App. 630, 636, 689 P.2d I 084 (1984) (citing State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440 (1979)). 5chaussee, 38 Wn. App. at 638. RESPONDENT ANDORRA VENTURES LLC 'S DISPOSITIVE MOT/ONTO DISMISS ERRORS OF PROCEDURE. FACT AND LAW NOS. 1 THROUGH 6. 8, 9, AND 13 PA