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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-2016-09802 BPLN-2016-02092 APPLICANT ANDORRA VENTURES LLC'S PREHEARING BRIEF I. INTRODUCTION Andorra Ventures LLC ("Andorra") hereby submits the following prehearing brief. All of the Errors of Procedure, Fact and Law ("Errors") cited by Appellant are based on erroneous legal conclusions and are beyond the scope of the building permit that is being appealed. Andorra therefore respectfully requests the Examiner to dismiss all Errors raised by Appellants. II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND The building permit that is the subject of this Appeal is for tenant improvements to the building located at 16390 Cleveland Street, Redmond, Washington ("Building"). The Building was constructed in the 1950s. 1 Its building code occupancy classification is currently "Storage", and its land use classification is "General Sales and Services." 2 The I Staff Report, p. 3. 21d. APPLIC'ANTA NDORRA /'ENTURESLLC S PREHEARING BRIEF - PAGH I JOHNS MONROE MITSUNAGA K OLOUSKOV A PLLC ATTORNEYS AT LAW 1120 I S.E. 8th 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 Building is a nonconforming structure in that it does not meet certain Redmond City ("City") Code ("Code") requirements (such as parking) that were adopted after it was built. 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, 2017.3 Andorra terminated the lease early in February 15, 2017, when it began its process for making tenant improvements. 4 On September 1, 2016, Andorra representatives met with City staff for a "preapplication conference." At that meeting, the City staff told Andorra representatives that, should Andorra's proposed tenant improvements exceed the value of the Building, it would lose its status as a legally nonconforming structure and the Building would have to be brought into compliance with current Code requirements. City staff noted that the Building value could be based on its assessed value or pursuant to a valuation by a certified appraiser. Andorra engaged a licensed appraiser to appraise the Building. The appraisal, dated October 3, 2017, valued the Building at $250,000. 5 On December 8, 2016, Andorra submitted an application for tenant improvements and change of occupancy to the Building ("Original Building Permit"). The change of occupancy permit involved a change from the current "Storage" classification to "Mercantile" under the International Building Code 6 The Original Building Permit application also included the addition of 459 square feet to the Building through the creation 3See Declaration of Sean Miller in Support of Respondent Andorra Ventures LLC's Dispositive Motion to Dismiss, attached hereto as Exhibit 1 to Declaration of Vicki Orrico ("Orrico Deel."). 4Id 5Applicant's Hearing Exhibit 2. 6section 105.1 , as adopted in RMC Chapter 15.08, Building Code and RZC 21.76.020.H.2. APPLICANT ANDORRA l"ENTURES LLC 'S ?REHEA RING BRIEF - PAr;1: 2 JOHNS M ONROE MITSUNAGA KOLOUSKOVA PLLC ATTORN E YS AT LAW 1120 I S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 45 I 28 I 2 1 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 of a mezzanine to be used for office space, and significant exterior modifications such as favade improvements and an awning. 7 The Original Building Permit application prepared by Andorra's consultant contained two inadvertent errors: the "Project Name" blank on the Building Permit form said "Origins TI & Change of Use." In reality, the applicant was not Origins8 but the Building owner, Andorra, and the application was for a change of occupancy rather than a change of use. On January 25, 2017, the City approved the Original Building Permit, with two significant changes. First, City staff corrected the "change of use" error (but not the Origins name) by stamping the form in red with the following: Change of Occupancy - Origins - Construction includes TI to divide the building into multiple retail suites, storage and offices including the construction of a new 2nd story ( 459 ft.) mezzanine. Total area of construction = 3268 sq. ft.9 The City also excluded the exterior modifications from the Original Building Permit scope. 10 Soon thereafter, Andorra began its tenant improvements. In its approval of the Original Building Permit Application, the City did not mention any requirements for a site plan entitlement permit, administrative modification permit, design review or any other land use permit necessary for the interior tenant improvements or the addition of the mezzanine. It was not until February 24, 2017, when Appellant's 7staff Report, Facts and Findings 2. 8While Andorra is the applicant and building owner, Origins is the product brand that is proposed to be offered by Andorra's proposed tenant, Alternative Medicine Collective, LLC. 9staffReport, Exhibit J. I Ostaff Report, Exhibit K. APPLICANTANDORRA VENTURES U C 'S PREHE4 R!NG BRIEF - PAUio 3 JOHNS MONROE KOLOlJSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th 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 representative Kevin Wallace notified the City of its intent to appeal the Original Building Permit, that the City notified Andorra of the need for additional permits. 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 - could require a site entitlement permit. At first, the City informed Andorra that the mezzanine triggered a requirement for an additional parking space and therefore required "a Correction Notice to address the parking deficiency of the existing permit - as the City did issue the permit in error. The Correction Notice will not trigger a need for a new application or permit, and will not be appealable by the neighbors." 11 Then the City informed Andorra that an administrative modification was required not only for the exterior improvements but also for the mezzanine. Then on March 9, 2017, the City informed Andorra that it did not qualify for the Administrative Modification land use application, per paragraph D.5 below - as your addition is more than 10 percent of the existing square foot of the building. As such, for the addition that is more than 10% of the building, you will need to apply for a Site Plan Entitlement application which the foe will be $18,523.42." 12 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 11 Orrico Deel., Exhibit 2. l 2orrico Deel., Exhibit 3. APPLICANTANDORRA l'ENTURES LLC"S PREHEARI:VG BRIEF - PAUF 4 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / 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 April 12, 2017, Andorra withdrew its site entitlement application which included the mezzanine work and discretionary cosmetic exterior work. Then on April 25, 2017, City staff informed Andorra that staff had made an error in calculating the exterior modification valuation, and that a Site Plan Entitlement application was not necessary. Rather, Andorra could simply revise its building permit application to include the original exterior modifications, remove the mezzanine and not be required to submit any land use application. The revised building permit ("Building Permit"), which encompassed the tenant improvements and change in occupancy, was submitted to the City on April 25, 2017,13 and approved May 8, 2017. Appellant appealed the Building Permit on June 2, 2017. As part of the Building Permit, Andorra did not apply for a change in use to marijuana retail sales or any other use. Although Andorra was forthright in its discussions with City staff that it ultimately intended to use a portion of the Building for retail marijuana sales (along with two other 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 applying for a retail marijuana license, and no such license is part of the Permits or this Appeal. 14 Nor is it a foregone conclusion that there will be a retail marijuana tenant. Although Andorra has been candid with the City about its intent to eventually have a retail marijuana tenant. There are many issues that could preclude such a use, including the current federal administration's l 3staff Report Exhibit B. 14Pennits subject to appeal were attached to the Appellant's appeal statement. / 'ENTURES LLC 'S PREIJEARING BRIEF- PAGE 5 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th 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 new position regarding enforcement of federal drug laws, market forces, state regulations, and, of course, a potential tenant's ability to meet any requirements that may be imposed by the City when such tenant applies for a business license. III. RESPONSE TO LEGAL ISSUES IDENTIFIED IN APPEAL Pursuant to Section VIII.E.1 of the Redmond Hearing Examiner rules, the Appellant, WPDC Cleveland LLC, has the burden of proof in this appeal. The Examiner must «accord substantial weight to the decision of the department director" for Type I permits. 15 The Examiner may grant the appeal, or grant the appeal with modifications, only if the Examiner determines that the appellant has carried the burden of proving that the Type I decision "is not supported by a preponderance of the evidence or was clearly erroneous." Although the Appeal of Andorra's Building Permit cites 14 Errors, Appellant's appeal is essentially based three erroneous legal conclusions: that there has been a change in use of the Building; that the tenant improvements to the Building being made by Andorra require some sort of land use permit beyond the Building Permit; and that the use of the Building as an existing legally nonconforming structure was abandoned, thereby losing its grandfathered status and triggering additional requirements (such as additional parking requirements). As will be demonstrated herein, these assumptions are incorrect, and therefore the Errors cited by Appellant are baseless and must be dismissed. A. Change in Use to Retail Marijuana is Beyond Scope of Building Permit and Appeal. Appellant raises numerous issues that are beyond the scope of the Building Permit and, as such, should not properly be considered by the Examiner in this Appeal. These l 5RZC 21 . 76.060.1.4. APPLICANT ANDORRA l 'ENTURES llC S ?REHEA RING BRIEF-PAU!i 6 JOHNS MONROE MITSUNAGA KOLOUSKOVA. PLLC ATTO RN EYS A T L AW l 120 l S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 45 l 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 pertain to changes in use of the Building, particularly related to a proposed retail marijuana tenant. As discussed in Andorra's Dispositive Motion To Dismiss Errors and in this Prehearing Brief, and confirmed by the City's Staff Report, 16 there has been no application to the City to change the use of the Building to retail marijuana, only a change in the occupancy of the Building. I. The Building Permit has no Change in Use Component. Many of the Errors alleged by Appellant mistakenly assume that Andorra has applied for a change in use for the Building. There is no change in use associated with the Building Permit, to "General Sales or Services and/or Marijuana Retail Sales" as Appellant claims; only a change in occupancy. It is important to distinguish between a change in occupancy and a change in use. Occupancy pertains to the requirements under the IBC with regard to the actual building, including things such as the physical structure, types of construction, ingress and egress requirements, storage of hazardous materials, etc. A building cannot be occupied without compliance with IBC, including inspection and ce11ificate of occupancy. Different types of occupancy carry different requirements for the building's structure (for example, a daycare will have very different building requirements than an industrial manufacturing facility). "Structures or portions of structures shall be classified with respect to occupancy in one or more of the groups listed in this section." 17 Currently, the Building is classified as l 6staff Report, FF 7, p. 5, and Analysis of Assertions, pp. 6-17. 17rnc 302.1. APPLICANTANDORRA VENTURES LLC ·s ?REHEARING BRIEF-PACI: 7 JOHNS MONROE MITSUNAGA KOLOUSKOV A PLLC ATTORNEYS AT LAW l 1201 S.E. 8th 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 "Storage - Group S" pursuant to the IBC. 18 The Building Permit changes the occupancy to "Mercantile - Group Mercantile Group M occupancy includes, among others, the use of a building or structure or a portion thereof for the display and sale of merchandise, and involves stocks of goods, wares or merchandise incidental to such purposes and accessible to the public. Mercantile occupancies shall include Retail or wholesale stores. I 9 Because different occupancy types carry different requirements under the IBC, there may be new requirements that must be met when changing occupancy. These, too, are governing by the IBC. 20 The Building Permit which is the subject of the Appeal is an application to make interior ground floor improvements and change the occupancy from Storage to Mercantile. While occupancy pertains to the physical requirements for a building structure based on a certain type of occupancy, the use pertains to the uses allowed under the City's zoning code. Currently, the Building retains its historical use designation of "General Sales and Services:21 " 18 IBC 31 I. I. 19,sc 309.1 An establishment engaging in the retail sale, rental, or lease of goods or the provision of services, including but not limited to automobile sales or service; heavy consumer goods sale or service; durable consumer goods or service; the sale or service of other consumer goods, grocery, food and beverage sales; health and personal care services; finance and insurance services; real estate services; professional services; administrative services; and restaurant and food services.22 20see IBC 101.4.7 and IEBC 202. 21 Staff Report, pp. 3-4. 22 RZC 21. 78 - G Definitions. APPLICANT ANDORRA l"ENTURES LLCS ?REHEARING BRIEF - PAW: 8 JOHNS MONROE MITSUNAGA KOLOUSKOVA. PLLC ATTORNEYS AT LAW 11201 S.E. 8th 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 Upon completion of the tenant improvements, the Building will house three leasable spaces. Any tenant falling within the General Sales or Services category will be able to operate upon receipt of a business license; no additional use requirements (such as additional parking) would be triggered because such a business would not change the use. A change in use may be triggered by a business license application for a use that is not within the General Sales or Services category. Retail marijuana is a use separate from General Sales and Services. Therefore, it is reasonable to anticipate that a change in use will be triggered if and when a retail marijuana tenants applies for a business license to open such a business. Andorra has not and legally cannot apply for a change in use to marijuana retail sales. Under City and State law, only the actual marijuana retailer may apply for such a license. A retail marijuana business license cannot be issued by the City until a retailer (Andorra's planned tenant) has procured a location and lease; the Washington Liquor and Cannabis Board has issued a retail cannabis state license for that location;23 and the City conducts its own review and issues a city business license. 24 2. Evidence Beyond Scope of Appeal Must be Excluded. Because the Building Permit does not encompass a change in use and no application for a change in use or business license has been submitted to the City, all discussions regarding change in use to retail marijuana are beyond the scope of the Building Permit and issues before this Examiner on appeal. 23RCW 69.50.325(3) and WAC 314-55-020. 24Rzc 21.41 .030 and RMC Ch. 5.04. APPLICANT ANDORRA /'ENTURES LLC"S PREHEARJNC BRJEF - PAc;1: 9 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC A T TORNEYS A T L AW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 45 I 28 I 2 / Fax: (425) 45 I 28 I 8 ---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." 25 The Examiner does not have the power to adjudicate in any equitable capacity. 26 The Examiner's authority is strictly limited to that which is given in the local regulations. 27 RMC 4.28.020 grants the Examiner the power to conduct hearings as described in RZC Chapter 21.76. RZC 21.76.060.D.4 grants the Examiner the authority to hear appeals on permits issued by the City. The Examiner has no authority to hear issues that are not within the scope of permits issued by the City. Many of the Appellant's over 100 exhibits as well as some of Appellant's witnesses relate to these issues that are beyond the scope of what can be properly considered by the Hearing Examiner on appeal. Andorra therefore requests that the exhibits pertaining to retail marijuana be excluded, along with the witnesses28 whose testimony pertains solely to a change in use to retail marijuana or any witness testimony related to a change in use to retail marijuana. Such witnesses and exhibits are beyond the scope of the Appeal and beyond the purview of the Examiner. Andorra further reserves the right to object to the admission of any evidence sought to be admitted by the parties on relevancy, other applicable Rules of Evidence, or legal standard. 25Chaussee 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)). 26chaussee, 38 Wn. App. at 638. 27 ln re King County Hearing Examiner, 135 Wn. App. 312, 319-320, 144 P.3d 345 (2006). 28For example, Mr. Mike J. Read states that he was hired to testify as follows: On April 4, 20 l 7, I was engaged by attorney Aaron Laing of Schwabe, Williamson & Wyatt, PC to prepare a comparative trip generation and parking generation analysis of the proposed marijuana retail sales business known as the Origins Tenant Improvements and Change of Use project for the existing building located at 16930 Cleveland Street, Redmond, WA 98052 Redmond Origins"), City permit references BLDG-2016-09802 and LAND-2017-00290. Appellant Ex. 2, para. 3 (emphasis added). APPLICANT ANDORRA VENTURES LLC 'S ?REHEARING BRIEF - PAUii I 0 JOHNS MONRO E MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW I 120 I S. E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / 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 3. Errors Related to Change in Use Must be Dismissed. Each of Appellant's Errors cites as its basis a change in "use to General Sales or Services and/or Marijuana Retail Sales Marijuana Retail Sales use." As noted above, the current use is general sales or services. Therefore, any use of the Building for general sales or services businesses will not be a change in use or trigger compliance with any requirements based on a change in use. Although use of the Building for a retail marijuana business would trigger a change in use, and compliance with any associated requirements, no change in use to retail marijuana sales has been applied for. The compliance triggers cited by Appellant pertain to changes in use not changes in occupancy. Because the Building Permit does not include a change in use, the Errors that arise from a change in use must be dismissed.29 Appellant first claims, in Error 2, that the City erred in allowing a change in use "to General Sales or Services and/or Marijuana Retail Sales use in a building that does not meet substantive land use code requirements and/or comply with the building code." There has been no such change in use; this portion of Error 2 should be dismissed. In Error 3, Appellant alleges that the City failed to follow RZC 21.40.01 0.C.l.a. and RZC 21.10.030.D. because "the proposed change in use to General Sales or Services and/or Marijuana Retail Sales use is a change in land use and such change in use requires provision of onsite parking spaces."30 RZC 21.10.030.D sets the number of required parking stalls for a given land use. RZC 21.40.01 O.C.l.a allows developments that met the parking 29Each of the alleged Errors is based upon "the proposed change in occupancy and/or use to General Sales or Services and/or Marijuana Retail Sales use". Andorra addresses only the purported change in use to retail marijuana because the current designated use is General Sales or Services. 30Emphasis added. APPLICANT ANDORRA l'ENTURES LLC'S ?REHEARING BRIEF-PA(if, J J JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / Fax: (425) 451 2818 ---PAGE BREAK--- 2 3 4 5 6 7 8 9 .IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 requirements in effect when approved to "continue to operate with the parking deficiency as long as no land use change is made that would require additional parking spaces. There has been no land use change; therefore no additional parking space requirement is triggered. Error 3 should be dismissed. In Error 5, Appellant alleges that the City failed to follow RZC 21.40.010.C.l.c. and RZC 21.10.030.D. because "the proposed change in use to General Sales or Services and/or Marijuana Retail Sales use will result in a change in land use and such change in use requires provision of at least the code minimum number of onsite parking spaces and bicycle parking."31 As noted above, RZC 21.10.030.D sets the number ofrequired parking stalls for a given land use. RZC 21.40.010.C.l.c provides: When a preexisting building with nonconforming parking is remodeled or rehabilitated but not enlarged, the existing use of the building may continue without providing additional parking. In the event that the land use is changed or increased by an addition of building square footage, the minimum level of parking required, including bicycle parking required by this chapter, consistent with the new or increased land use affected by the change must be provided, or an approved Transportation Management Program, as provided in RMZ, Transportation lv1anagement Program, must be implemented for the site that effectively reduces parking demand;32 As noted herein, the Building is being rehabilitated but not enlarged, and there is no land use change. Therefore, the existing use of the Building may continue without providing additional parking for cars or bicycles. Error 5 must be dismissed. In Error 8, Appellant alleges that the City failed to follow RZC 21.40.010.E.8 because "the proposed change in use to General Sales or Services and/or Marijuana Retail Sales use 31 Emphasis added. 32Emphasis added. A PPLICANTANDORRA VENTURES LLC 'S PR EH EARING BRIEF - PAc;i: 12 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW I 120 I S. E. 8th St., Suite 120 Bellevue, Washington 98004 Tel:(425)4512812 / Fax:(425)4512818 ---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 requires provision of off-street parking/loading facilities for service vehicles." However, as noted above, RZC 21.40.010.C.1 allows developments that met the parking requirements in effect when approved to continue to operate with the parking deficiency as long as no enlargement or land use change is made that would require additional parking spaces. No enlargement or land use change has been made that would trigger the provision of off-street parking/loading facilities. As such, Error 8 must be dismissed. 4. Marijuana Regulations are Unrelated to the Building Permit. Errors 13 and 14 specifically allege noncompliance with marijuana regulations under RZC 21.41 and WAC 314-55.050, alleging that the City's development regulations governing marijuana, including buffer requirements are not met in the Building Permit. As noted throughout this brief, there has been no change in use of the Building to retail marijuana applied for as part of the Building Permit. As such Errors 13 and 14 must be dismissed. B. No Land Use Applications Are Required. Appellant alleges that the City has "piecemealed'' the permit process by failing to require review and approval of land use permits prior to issuing the Building Permit. Appellant claims the land use permits were triggered by ( 1) exterior modifications to the Building33 and, expansion of the Building square footage. 34 Appellant also alleges that the City failed to require design review of the proposed alterations.35 Appellant alleges that 33see Errors 2 and 11 . 34see Errors 2, 4, and 6. 35Error 11. APPLICANT ANDORRA l'ENTURES LLC'S PREHEARING BRIEF - PAc;1· J 3 JOHNS M ONROE MITSUNAGA K OLOUSKOVA PLLC ATTORNEYS AT LAW 1120 I S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / Fax: (425) 451 2818 ---PAGE BREAK--- 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the City failed to give notice of these purportedly required land use permits.36 Appellant is incorrect with regard to these allegation : there wa no expansion of the Buildiog·s square footage, no land use applications were required and thus no notice was required. Errors 1, 2, 4, 6 and 11 should be dismissed. 1. Exterior Modifications are Exempt. In Errors 2 and 11, Appellant argues that the City failed to require compliance with design standards under RZC Chapter 21.60 and RZC 21. 76.020. As noted above, the exterior modifications were originally excluded from the City's approval of the Original Building Permit.37 However, the City acknowledged that the exterior modifications would be exempt from any design review if they fell within the exemption provided by RZC 21.76.020.E.3.c: The Administrator shall have design review authority on all building permit applications that have a total valuation of less than $50,000 and are not specifically exempt from design review in subsection E.2 above. Andorra modified its proposed exterior modifications, eliminating discretionary cosmetic items such as an awning, thereby reducing the cost of such modification to $39,700.38 As such, the exterior modifications fall within the $50,000 exemption. In accordance with the City's direction, Andorra revised the Original Building Permit to include the exterior modifications, and the Building Permit does include these exterior modifications.39 As noted in the Staff Report, the exterior modifications fall under the exemption and thus no land use permit or review by the Design Review Board is required: 36Error I. 37see Original Building Permit. 38Applicant's Hearing Exhibit 7. 39staff Report, Exhibit B; excludes some of the more expensive exterior fa~ade modifications such as the awnings that had been proposed in the Site Plan Entitlement application withdrawn by Andorra. APPLICA,",'T ANDORRA VENTURES LLCS ?REHEARING BR/f,F - PA(;1, I 4 JOHNS MONROE MJTSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 45 l 2812 / Fax: (425) 451 28 I 8 ---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 3. The applicant submitted a revision application to the City that eliminated the addition of floor area, namely the mezzanine. Based on that reduction, coupled with the fact that that the valuation of the exterior modifications is less than $50,000 (See Exhibit B - Building Permit Revision Application, Increase in Valuation line), the City finds that a land use permit (Administrative Modification) is not required per RZC2 l. 76.090. D. 4. As the value of the exterior improvements to the building is less than $50,000, the City finds that review by the Design Review Board is not required, per RZC 21. 76.020.3.c, and that review of the building design is within the authority of the Administrator.40 Because no land use permit or design review 1s triggered by the exterior modifications, Errors 241 and 11 should be dismissed. 2. The Mezzanine is no Longer Part of the Building Permit. The Original Building Permit as submitted included the addition of 459 square feet to the Building through the creation of a mezzanine to be used for office space. When the City notified Andorra in March that a site entitlement permit would be required for the additional space, Andorra submitted a site entitlement application on March 23, 20 I 7. However, due to delays resulting from the site entitlement application process, Andorra withdrew its site entitlement application and its design to expand the mezzanine on April 12, 201 7. The Building Permit that is the subject of this Appeal does not include the mezzanine or any expansion of the Building square footage. As such, no site entitlement permit or other land use application is required. 2. The applicant originally applied for a Tenant Improvement that included the addition of a mezzanine office space. See Exhibits J - Original Building Permit Application and Exhibit K - Approved Original Plans. The original application and plans have been revised with the submission of Exhibit B - 40staff Report, Facts and Findings 3-4. 41 The portion dealing with design review and exterior modifications. APPL!CANTAl'.WORRA VENTURES LLC"S PREHEAR!l'-iG BRIEF - PACH l 5 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 8th 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 Building Permit Revision Application and Exhibit C Approved Revised Architectural Plans. 3. The applicant submitted a revision application to the City that eliminated the addition of floor area, namely the mezzanine. Based on that reduction the City finds that a ]and use permit (Administrative Modification) is not required per RZC21.76.090. D. Because the mezzanine is not included in the Building Permit, there is no enlargement of the leasable floor area. No land use application is therefore required and the additional requirements that would be triggered by such an enlargement are not triggered. In Error 2, Appellant alleges that the City erred in approving a change of use "with increased usable floor area on a non-conforming site in a non-conforming structure without required parking, bicycle parking, loading, garbage/recycling, and/or utility meters." In Error 4, Appellant alleges that an enlargement of the leasable floor area requires provision of onsite parking spaces. Similarly, in Error 6, Appellant alleges that an enlargement of the leasable floor area requires provision of "at least the code minimum number of onsite parking spaces and bicycle parking." Because there has been no enlargement of the leasable floor area, Errors 2,42 4 and 6 are beyond the scope of the Building Permit and must be dismissed. 3. No Land Use Notices Were Required. Appellant also alleges that the City failed to give notice and opportunity to comment pursuant to City and State land use regulations.43 Only RZC 21.76.050 and .080 contain notice requirements. RZC 21.76.050 provides that building permits are Type I with "Minimal-generally no public notice required. No public hearing." The only notice for a building permit pursuant to RZC 21. 76.080 is notice of an open record appeal hearing. 42 The portion dealing with increased usable floor area. 43 RZC 21.76.020, 21.76.050, 21.76.060 and 21.76.080, and RCW 36.70B. I I0. APPLICANT ANDORRA T'ENTURES LLC 'S PREHEARING BRIEF -PAc;!i 16 JOHNS MONROE MITSUNAGA KOLOUSKOVA PLLC ATTORNEYS AT LAW 11201 S.E. 81h St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / 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 RCW 36.70B.l 10 allows local governments to determine the appropriate notice to be given, which may include posting the property for site-specific proposals,44 as was done here. There were no additional notices required. In summary, no ]and use applications are triggered by the Building Permit Application or the tenant improvements: no enlargement, no design review, no notices, and no land use applications. Therefore, the Errors I, 245, 4, 6 and 11 should be dismissed. C. The Building has not Lost its Status as a Legally Nonconforming Structure. Appellant claims that the Building is "an abandoned warehouse" 46 and that such "abandonment" or "termination" and "the proposed change in occupancy and/or use to General Sales or Services and/or Marijuana Retail Sales use" required the City to impose additional parking, bicycle parking, garbage/recycling, utility meters, and loading facilities . 47 reqmrements. Under City Code, "abandonment" is defined as: Abandonment, Nonconforming Use or Structure. All right to continue a nonconforming use is abandoned when the property owner intends to abandon its right to continue the nonconforming use or structure, and there is an overt act, or failure to act, on the part of the property owner which implies that the owner no longer claims or retains any interest in the right to continue the nonconforming use or structure.48 Here, the owner has neither overtly nor impliedly expressed an intent to abandon the Building's nonconforming status. The Building has been in continual use, has not been 44RCW 36.70B.l 10(4)(a). 45The portion dealing with increased floor space, design review, notices, exterior modifications and land use applications. 46 Amended Appeal, p. 2. 41see Errors 2, 7, 9 and 10. 48RZC 21. 78 A Definitions ( emphasis added). APPL!C4NT ANDORRA VENTURES LLC"S P REH EA RING BR! EF - PAUi, 17 JOHNS MONROE MITSUNAGA KOLOUSKOV/\ PLLC ATTORNEYS AT LAW 1120 I S.E. 8th 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 expanded or abandoned, and has retained its status as a legally nonconforming structure. 49 No change in use has been applied for under the Building Permit. The change in occupancy does not trigger any additional parking or loading facilities requirements. The City has therefore determined that no additional parking or loading facility requirements are triggered in conjunction with the Building Permit. 50 Again, it is important to distinguish between change in use and change in occupancy. The compliance triggers cited by Appellant pertain to changes in use not changes in occupancy. First, Appellant cites RZC 21.40.010.C.1.e, 51 which provides: When a use in a development with nonconforming parking is terminated, the area vacated shall not be occupied by a use requiring more parking spaces than the terminated use, unless the required additional parking spaces are provided. 52 There is no use being terminated in conjunction with the Building Permit. Nor would there be a change in use if and when a general sales tenant opens for business. Only a marijuana retail sales business (through a business license application) would trigger a change in use, and none has been applied for or is part of the Building Permit. Therefore, no additional parking requirement is triggered under RZC 21.40.010.C.l.e. Appellant next cites RZC 21.76.100.F.7 53 which governs abandonment of rights to nonconformities. That code section provides: 49staff report, p. 3-4. 50staff Report, Facts and Findings 6. 51Enor 7. 52Emphasis added. 53Enor 9. APPLICANT ANDORRA VENTURES LLC'S PREHEA RJNG BRIEF-PAUii 18 JOHNS MONROE MITSUNAGA KOLOUSKOVA. PLLC ATTORNEYS AT LAW 11201 S.E. 8th St., Suite 120 Bellevue, Washington 98004 Tel: (425) 451 2812 / 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 All rights to nonconforming parking shall be lost if the primary structure on the lot is demolished or rebuilt as defined in RZC Article VII, Definitions. Rights shall not be lost if a building is merely vacated for less than one year. 54 The Building has not been demolished or rebuilt; as such this provision is inapplicable. 55 Finally, Appellant cites RZC 21.76.100.F.9.a and b 56 which govern alteration or expansion of a nonconformance: a. General. The alteration or expansion of a legal nonconforming use or structure is prohibited unless it does not increase the degree of nonconformity, or unless it is specifically permitted through an official action as stated in RZC 21.76.050, Permit Types and Procedures . b. Bringing Nonconforming Structures into Compliance. A legal nonconforming structure shall be brought into full compliance with the RZC when alteration or expansion of the structure takes place, and the following takes place within any three-year period: i. The gross floor area of the structure is increased by 100 percent or more; or 11. The costs stated on all approved building permit applications for the structure equal or exceed the value of the existing structure at the beginning of that three-year period.57 Paragraph a. is inapplicable. The alteration of the Building does not increase the structure's nonconformity. The alterations do not result in the expansion of the structure: neither the Building's footprint nor square footage is changing. There is no change in use under the Building Permit that will increase the parking nonconformity. The Building's alterations do fall within the exemption of RZC 21.76.100.F.9.b.ii. above, in that the costs of the approved Building Permit do not exceed the value of the Building. "Value, Existing Structure" is defined as: 54Emphasis added. 55 Please note that the remainder of RZC 21.76. I 00.F.7 applies to nonconforming uses; the Building is defined as a nonconforming structure, not a nonconforming use. See RZC 21 .78 Definitions N. 56Error 10. 57Emphasis added. APPLIC'.4NTANDORRA IENTURES LLC "S ?REHEARING BRIEF-PA